Very early tax question

[Mr. Don]

We haven't completed AOS yet but this question popped up in my mind. When I file my tax returns next year, from what I've read it sounds like we should file married/jointly. What about my step son? Can I claim him as a dependent even though he has only been here since early September?

[dnoblett]

Yes, and yes. File joint, and claim step child as dependent.

[Randy W]

That might catch some attention, Dan,.On the plus side, no one ELSE will be trying to claim him as a dependent. I forget what's been said about claiming step children while they're still in China, but I think it's No.

 

Residence — for more than half the year, the person must have the same residence as you do.

 

That is, they must be a U.S. resident.

Edited September 26, 2012 by Randy W (see edit history)

[Randy W]

Publication 501

[Mr. Don]

yes...my step son is living in the US and no one else will be trying to claim him. However, he doesnt have an SSN so not sure what to do about that as far as claiming him on my tax return

[Mr. Don]

Based on what I just read from Randy's link, my step son has to have lived with me for more than 1/2 the year in order for me to claim him on my tax return for 2012. But, since his mom is also filing and he is HER dependent, WE can claim him......right?

[dnoblett]

That is logical, it a joint return, so you can claim your and she can claim him in the joint return.

 

Anyway, she can apply for her SSN NOW, don't wait, and he can apply for an SSN shortly after getting EAD or Green-card, which should happen sometime before you file your taxes.

 

When filing the two AOS most definitely file an I-765 with the step child's I-485 AOS package, to get step child EAD, which you can then file to get a SSN.

[Mr. Don]

so even though he is 13 we should apply for an EAD for him? EAD is work authorization...right?

[dnoblett]

so even though he is 13 we should apply for an EAD for him? EAD is work authorization...right?

Correct, you are getting the EAD in this case to be able to apply for a SSN. SSA has to have a reason to issue a SSN to a non-resident, work-auth is the basis they issue SSN to a non-resident, green-card also = work authorization.

[Mr. Don]

So....when he gets his green card he can apply for SSN? If that's the case I'm going to wait til then because I'm already looking at around $1700 for her and his AOS....then another $380 for her EAD

[Randy W]

Actually, references to a six month rule usually are concerned about which of two separated parents has custody of the child. This does not apply in your case, as Dan is pointing out.

 

What bothers me, though, is the substantial presence qualification (which does NOT apply to the spouse - spouses can ALWAYS be claimed when you're still married on Dec. 31).

 

in order to claim individuals, even children, as dependents, they have to be citizens or residents of the U.S. Children usually are citizens or residents of the country of their parents.

. . .

A child can become a U.S. resident either by having a green card or by being substantially present in the U.S.

. . .

Substantial presence means that the individual has been present in the U.S. for more than 182 days in the current year.

 

http://www.bankrate....children_a1.asp

 

 

IRS -

The Green Card Test and the Substantial Presence Test

Edited September 27, 2012 by Randy W (see edit history)

[dan_ling]

But the IRS website states:

 

"An alien may become a resident alien by passing either the green card test or the substantial presence test as explained below."

Green Card Test

 

Are you an "immigrant" (Lawful Permanent Resident) of the United States under the immigration laws of the United States? Aliens who are Immigrants are Resident Aliens of the United States for tax purposes, under the condition that they spend at least one day in the United States.

If you answered yes to the above question, you do not need to proceed to the questions below.

 

 

So if he has the greencard and been in the US one day I think he passes.

[Randy W]

But the IRS website states:

 

"An alien may become a resident alien by passing either the green card test or the substantial presence test as explained below."

Green Card Test

 

Are you an "immigrant" (Lawful Permanent Resident) of the United States under the immigration laws of the United States? Aliens who are Immigrants are Resident Aliens of the United States for tax purposes, under the condition that they spend at least one day in the United States.

If you answered yes to the above question, you do not need to proceed to the questions below.

 

 

So if he has the greencard and been in the US one day I think he passes.

 

yes

[dnoblett]

So....when he gets his green card he can apply for SSN? If that's the case I'm going to wait til then because I'm already looking at around $1700 for her and his AOS....then another $380 for her EAD

EAD is no charge when applied for with AOS so the cost will be $1070 for spouse and step son is underage 14 so fee is just $635 so total for both including EAD would only be $1705

 

http://www.uscis.gov...00045f3d6a1RCRD

 

Note there is a question on the I-765 #16 is is always (c )(9 ) based on adjustment of status filing. And is NO added cost because of this.

[Mr. Don]

This is ALL great information guys. Thanks alot!