IllinoisDave

Good question Mark, I'm curious myself. Since how soon someone files for EAD after arrival determines how long the gap is, I guess the more pertinent question might be: "How long is it taking to get the EAD these days?" So I'm gonna to start a new thread and get some feedback on that.

What he said.

The Notation does have meaning, it tells employers that EAD is needed, Either the temp EAD 90 day stamp in passport, or EAD card from DHS (USCIS). An additional note on K-1, Can a K-1 work for the 90 days of the I-94 with out EAD stamp? This is a gray area. If you read the employment evidence requirements on form I-9 column A used by employers. http://www.uscis.gov/files/form/i-9.pdf If the employer is aware that K-1 is "Work Auth" they may employ, but some may not. File for EAD with AOS by including I-765 with the I-485, EAD costs no more when included with AOS filing. EAD code is (c )(9 ) Based on pending I-485. Soooo... If an employer hires my wife based on his acceptance of the I-94 as authorization, she can work until the I-94 expires. But when that expires, technically/legally she would have to quit work and cannot start again until the EAD arrives correct? Correct. Yu did this for the local public school on her I-94, and she was reemployed when she got her green-card. That's what I thought. Thanks Dan.

Slow down chief, you will be just fine. Dave, myself, and I am sure others will take care of you when your turn comes, no need to even think that far ahead right now. Mike's right. We'll take care of you. I'm making all the mistakes now so you won't have to.

The Notation does have meaning, it tells employers that EAD is needed, Either the temp EAD 90 day stamp in passport, or EAD card from DHS (USCIS). An additional note on K-1, Can a K-1 work for the 90 days of the I-94 with out EAD stamp? This is a gray area. If you read the employment evidence requirements on form I-9 column A used by employers. http://www.uscis.gov/files/form/i-9.pdf If the employer is aware that K-1 is "Work Auth" they may employ, but some may not. File for EAD with AOS by including I-765 with the I-485, EAD costs no more when included with AOS filing. EAD code is (c )(9 ) Based on pending I-485. Soooo... If an employer hires my wife based on his acceptance of the I-94 as authorization, she can work until the I-94 expires. But when that expires, technically/legally she would have to quit work and cannot start again until the EAD arrives correct?

Yep. This is what we just got done doing. You may be able to save an extra step than we had to go through do to what was either a simple misunderstanding between myself and the SSA clerk or just a mistake on my part. When we went to get the card the first time, I told the clerk that we wanted to get the card in her married name. She was in the system with her Chinese family name and given name. Well I had filled out the SS-5 form with her American name and married name filled in, based on my misunderstanding of info here. I thought we were allowed to change both names. Long story short, the clerk said we couldn't do that because she was in the system with her Chinese name. I was so sure we could and so agitated that she wouldn't let me that I never thought about asking to just apply with her Chinese given name and her married name. And the clerk never gave me the option,either because she was pissed or she didn't realize I would take that option. So we got the first card in her Chinese family name/given name and after it came we then went to another office and had no problem getting a card with her Chinese given name first, her Chinese family name as middle and her new married name last. You may be able to skip the extra step of getting it in with her Chinese family/given names first and then changing it. Can't hurt to ask. I'd be interested to see you try it this way and see if works. P.S. I would download and fill out the forms both ways before you go to save time if they don't let you do it the way you want.

Glad to hear it Tony. What's 365 days among friends right?

Sleep, what's that? The difference in definition between the IRS and USCIS is a fun thing. Now if the spouse has a green card before 12/31 the entire first year choice doesn't apply and she is a resident for the entire year. So forget the extension, just write a letter and mail it with your taxes. Income is income, once you decide to file jointly you need to include all of here world wide income on the return. My recommendation is to explain the tax rules to her, especially the part about paying taxes on income. Then ask if she has any W-2's for her work in China. Then ask if she remembers making any money in China this year so you can report it an pay taxes on it. Then enter $0.00 for her income as I am positive she was in ESL classes all year and what with the economy and all in China there weren't a lot of jobs around to be had. When filing jointly only your joint income must meet the standard, not individual income. You can list her occupation as Student, Homemaker, Housewife, or in Triggs case as "Chinese woman who likes to spend money." I'm with ya.

For K-3 and CR-1 Spouse does not meet the Substantial Presence Test and you were married by December 31. Does not require your spouse to be in the US. Thanks to RandyW for arguing the point, we get to have our cake and eat it too. Yep. That clears it up much better than I did obviously. Thanks Lee. And Randy.

I stand corrected concerning the substantial presence test, which means there is no need to delay filing for those who don't meet that requirement. In that case the information I originally applied to CR-1 and K-3 also applies to K-1. However, you still must submit a letter stating you are making the choice to have the non-resident spouse treated as a US Resident for the entire year. See "How to Make the Choice" at the bottom of page 10 in the 2006 Publication 519. How To Make the Choice Now take the situation where a spouse arrived in June and at the end of the year does not have a green card. They fall into Dual Status and meet the substantial presence test so they too must submit a letter but of a different format. The bottom line is that unless the spouse has a green card by 12/31 a letter must be sent declaring the choice to be treated as a US resident for the entire year and you must file jointly for that year. The content of the letter will vary based on the substantial presence test. I recall reading that if the letter is not perfect and you missed a point or two it does not nullify the letter and you can't be penalized for not getting it right as long as you made the attempt to do it and didn't lie. I guess I'm not the only one who can't sleep. I guess I was wrong about the dual-status/substantial presence part. I took it to mean that you were only dual-status if you obtained the green card during that calender year,thus changing from non-resident to resident. Any thoughts on the income part?

Yahoo!! Congratulations! That light you see at the end of the tunnel has a pinkish hue.

First, thanks to both Lee and Randy for your help with this. I'm sorry for the friction it's caused. This is a very difficult thing to get a grasp on which is why I asked about it and both of you have been very helpful. I've done some reading now myself thanks to the link Lee provided. And thanks to that as well as Randy pointing out the flow chart, I may have figured out what the answer may be for people in our position, which is a foreign fiance coming here, getting married before the end of the year but not being here for six months to meet the substantial residence test. This is what I think I've figured out. Let me know if I've gone wrong somewhere. I think this situation applies to quite of few couples here so it may be important to make sure it's right. First, we have to determine resident alien or nonresident alien for tax purposes. Since we don't meet either the green card test or substantial residence test, we are nonresident alien. (see pg. 4) That seems easy enough. The flow chart seems to bear this out. (see pg. 5)As I read it, Dual Status does not apply because it says you're dual status if you were a nonresident alien at some point during the year and resident alien at the end, which I take it to mean you got your green card at some time during that year. (see pg. 8) Having determined that we're nonresident alien, we skip down to page 10 under the heading: "Nonresident Spouse Treated As Resident". Here it says: "If, at the end of your tax year, you are married and one spouse is a US citizen, or a resident alien and the other spouse is a nonresident alien (this is us), you an choose to treat the nonresident spouse as a US resident. (skip non-relavent info) If you make this choice,you and your spouse are treated for income tax purposes as residents for the entire tax year. (skip)You are both taxed on world-wide income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years." Having determined this, we skip down to where it says "How to make the choice." It says: "Attach a statement, yada yada,with the following information. 1-A declaration that one spouse was a nonresident alien and one a resident alien or US citizen on the last day of your tax year, and that you choose to be treated as residents for the entire tax year. (again, this is us) 2-The name,address yada yada." Then it says you generally make this choice when you file your joint return but you can also amend etc. So now we've determined that we are nonresident but can file as "nonresident spouse treated as resident" for the entire year. And that we need to attach the statement with the two bits of info. Simple enough. Now the next question I had is about her income. Since we're not claiming any income for her, it's kind of a moot point. But I was curious as to what the rules were anyway and as I read through them, it seems kind of confusing and maybe further discussion here would help others who do claim some income. On page 11, it lays out what income is taxable for resident and nonresident aliens. Basically, it says that resident aliens are taxed in the same manner as a US citizens, including any wages,interest tips etc earned within or outside the US. And for nonresidents, you're only taxed on income earned in the US. My question is, in our case or someone similar to us, which are we considered to be? We determined earlier that for tax purposes we are nonresident alien. So it would seem that those rules would apply and thus any income earned in China would not be taxable here. But, since we're choosing to be considered as "Resident Alien" for the tax year, do the rules taxing ALL income apply? I scanned through the rest of the document but it never really seems to spell out which category we would be considered in as a nonresident filing to be considered a resident for tax purposes. Seems to me to be a kind of Catch 22. Maybe someone else has experience with this and can give a definitive answer? So to sum up. As I understand what I've read, it seems both Randy and Lee are right in a way. We can file jointly with Christine considered as a resident for the entire year without having to wait to meet the substantial residence requirement, but we do need to attach the declaration letter. The only thing left up in the air seems to be for those who are reporting income for their wife earned in China and whether or not they would be considered resident or nonresident. Please feel free to let me know if I've mis-interpreted anything, or am just flat wrong. It wouldn't be the first time for either. And thanks again to everyone who offered help.

Just remember the first man-rule of the road: Under NO circumstances are you allowed to stop and ask for directions.

Dave does Christine not have two passports soon?? I think it'll be a while.

There's a consulate in Chicago. I'd try to get over to that one before you move. I do believe you need to go in person. http://chicago.china-consulate.org/eng/ EDIT: It looks like Visarite will do it via mail. http://www.visarite.com/Chinese_Passport_Name_Amendmant.htm

That is great news!! CONGRATULATIONS! Christmas dinner will taste oh so sweet now.

CONGRATS!

CONGRATULATIONS!

Thanks Lee. So I go ahead and file MFJ,opt for the first year choice and include the letter I found in your old post that I cited above? Then we're good to go legally correct? And how does all this affect her income, or lack thereof, as Randy mentioned? I haven't checked this year to see what updates, if any, apply to the IRS publications. They are usually a bit late in getting them published waiting for last minute changes made by congress. Last year they didn't even update the publication to the current tax year until April. Filing jointly doesn't require that she have any income. What you are doing is legally taking a full year deduction for a partial year of residency by agreeing to include her full years world wide income as US income. Now if she didn't have any income it's not your fault that you got a good deal and the IRS didn't rake in extra income because of your situation. After reading the section again, you are supposed to file an extension if she does not meet the substantial presence test by April 15 and pay any taxes you expect with that extension. I'd bet that you will be receiving a refund so filing an extension and mailing your return on April 18 doesn't have a down side. Cool. Thanks again.

CONGRATS! Just goes to show that it's not only the simple cases that sail through.

Thanks Lee. So I go ahead and file MFJ,opt for the first year choice and include the letter I found in your old post that I cited above? Then we're good to go legally correct? And how does all this affect her income, or lack thereof, as Randy mentioned?

Thanks. She also has her SSN so that helps. Sounds like you and Randy are in agreement that I don't need to extend. That's a relief.

Including the first year choice? The first year choice affects her Chinese income that you are reporting to the IRS. So since she didn't have any income in China the first year option doesn't pertain to us? Just file MFJ?

Including the first year choice?

I'm thinking ahead about taxes. Tell me if I have this right. In order to file Married Filing Jointly with the first year option, Christine must have been here for 31 consecutive days in 2007, (no problem) and meet the substantial presence test for 2008. Since she came October 16th, that means that she won't meet the requirement until April 16th. Am I right so far? All this means that I'll have to wait until April 17th to file? Which means I'll have to file an extension for those two days? Which means that if we had come back two days earlier, I would have saved myself the headache of having to file an extension? And as far as her income... Since an employer in China, (if she had one)wouldn't be reporting her income (if she had any) or any taxes she paid (if she paid any) to the IRS, she probably didn't have any income in 2007 correct? She probably had a volunteer job teaching English to kids correct? Then, when I do file, per an old post of Lee's, I'll need to attach a statement that includes: The statement must contain your name and address and specify the following. ?That you are making the first-year choice. ?That you were not a resident in 2005. ?That you are a resident under the substantial presence test in 2007. ?The number of days of presence in the United States during 2007. ?The date or dates of your 31-day period of presence and the period of continuous presence in the United States during 2006. ?The date or dates of absence from the United States during 2006 that you are treating as days of presence. Do I have all that right or am I completely mis-reading Lee's post and the IRS website? Thanks