Starting DCF I-130 process in Beijing; on nagging issue with tax

[Onbelay007]

First post and I really wish I would have discovered this site MUCH earlier...

 

Quick background:

I met my Chinese wife when I was living in Chicago and she in Netherlands, as we work for the same MNC. My wife is a Chinese citizen but had been living in Europe for 5 years or so. We got along well, started dating and making several visits (me to NL and China, and her to US). in 2008 I found a job in Amsterdam within our company so made the move and we lived together ever since.

 

In 2009 we were legally married in NL, and had a church ceremony wedding in Hong Kong. In 2010 our daughter was born and is now a US citizen via Consular Report of Birth Abroad.

 

In 2010 we filed the 1-130 in Amsterdam and it was accepted. We received all the paper work and were informed to schedule an interview with the immigration officer. At that time, our company announced major investments in China, which meant job opportunities for us so we decided not to continue with the immigration process and moved to China instead (job market in US wasn't so good anyway).

 

We've now been in Shanghai for 2 years living together and are ready to start the I-130 process again as we're ready to move to the US, with baby number 2 on the way

 

Taxes:

I was a good US citizen and filed my taxes each year. Since 2009 I have only had foreign-earned income that is less than the $92k threshold, so it's always qualified to be exclued. No taxes owed to US gov't and none owned to me. However, after we were married I filed as "Single" for tax purposes as for married it required a SSN which my wife doesn't have. Any status I used wouldn't matter because I have no US income and my foreign income is definitely lower than the threshold.

 

Looking through these threads I think technically filing as "single" was not right. Although no impact on taxes owed or paid I'm worried that this stupid little technicallity may create a problem doing the process in China as opposed to when we started it in Amsterdam.

 

Would a simple letter explaining my rationale for using "single" be sufficient? I understand the "single" might create an issue for bonafide marriage but I have loads of other evidence to prove it is real. And I did file my US taxes honestly and faithfully, but maybe not technically correct when I read more on this forum.

 

Appreciate your comments.

Steve

 

 

[Randy W]

Why not file this year as married filing jointly, with the W-7 ITIN application? Then, when you get the ITIN, file amended returns for the previous two years. Or simply file the amended returns as married, filing separately - you won't need the ITIN this way (the W-7 must be filed with the return).

 

In my own opinion, the IRS won't care one way or the other, but it's better to put your best foot in front of the Wizards at GUZ, rather than to bury it in an excuse letter. Even there, I doubt you'd have a problem since you've been living together for so long. But just a few simple steps will straighten out your paperwork for all concerned.

[dnoblett]

I recall one case where GUZ may have denied over improperly filed taxes claiming single verses married filing separately or jointly.

 

http://candleforlove.com/forums/topic/42423-denial-letter/

 

I would get this corrected before the interview.

[Onbelay007]

To clarify, are the tax forms more important for the I-130 application or for the immigration interview itself?

 

I have the appointment to file I-130 next week so no time to fix my tax issue. If it is an important doc for the GUZ interview, then I definitely have time to get everything squared away with a refile to change my status.

 

These GUZ horror stories kinda make me wish I just would have followed through the process in Amsterdam....

[dnoblett]

At the interview not when filing the I-130

 

At the interview you will need to provide an I-864 which requires tax returns attached. Also the I-864 requires evidence that you maintained a US Domicile.

 

http://candleforlove.com/forums/tags/forums/Domicile/

http://candleforlove.com/forums/tags/forums/I-864/

[newacct]

In 2009 we were legally married in NL, and had a church ceremony wedding in Hong Kong. In 2010 our daughter was born and is now a US citizen via Consular Report of Birth Abroad.

(Off-topic) I want to add that, according to article 5 of the Nationality Law of the PRC, your daughter is likely also a Chinese citizen, if your wife does not have permanent residency abroad.

[pbatt]

I filed Jointly last year on my taxes but the box is checked as single. I asked my tax accountant about this and as he explained, US tax codes have many different options and meanings. Married filing separate becomes filing single when you live apart the entire year and you have a nonresident alien spouse without ITIN. Those are the boxes checked on my return and I have the printout for LiYuan to show at her interview later today.

 

The same goes for the bank I work for, I am considered single since she is alien spouse and does not have Social Security number.

 

Good luck to you.

[Randy W]

I filed Jointly last year on my taxes but the box is checked as single. I asked my tax accountant about this and as he explained, US tax codes have many different options and meanings. Married filing separate becomes filing single when you live apart the entire year and you have a nonresident alien spouse without ITIN. Those are the boxes checked on my return and I have the printout for LiYuan to show at her interview later today.

 

The same goes for the bank I work for, I am considered single since she is alien spouse and does not have Social Security number.

 

Good luck to you.

 

 

Yes, I agree in that when you file as a single even though married, you're not "lying" to the IRS about your marital status, you're simply choosing a filing status (one which may or may not be available to you).

 

But this couple lives together in Shanghai, and the issue for them is NOT with the IRS, but with getting the visa. Visa officers have been known to focus on a particular aspect of the file, and not take in the entire picture, especially with regards to tax returns. Why wouldn't they get this little duck in line?

 

About the Nationality Law - China does not recognize dual citizenship. Yes, they can claim their Chinese citizenship (and parent's hukou), but their parents have taken the other route and chosen American citizenship.

[Onbelay007]

Yes. IRS won't care but I want to leave no reason for the immigration officers to doubt our status. So I'll spend a few hours this weekend amending my filing status. Better safe than sorry.

[newacct]

I filed Jointly last year on my taxes but the box is checked as single. I asked my tax accountant about this and as he explained, US tax codes have many different options and meanings. Married filing separate becomes filing single when you live apart the entire year and you have a nonresident alien spouse without ITIN. Those are the boxes checked on my return and I have the printout for LiYuan to show at her interview later today.

 

The same goes for the bank I work for, I am considered single since she is alien spouse and does not have Social Security number.

 

Good luck to you.

I think your tax accountant is wrong. There is nothing in the 1040 about any case when you can file single when you are married. There is an exception if you are a married nonresidents alien who lives apart in the 1040NR; however, it only applies to residents of Canada, Mexico, South Korea, or are U.S. nationals (i.e. from American Samoa). Do you fall into any of those?

Edited March 15, 2013 by newacct (see edit history)