File tax return "married file seperately" and then amend it

[housegryffindor]

Hi people of CFL forum, I am new to this forum but I have spent the last 8 hours reading tons of posts on here and I want to thank all of you for taking the time to share your experiences and knowledge with others who are going through this difficult and confusing process.

 

Quick summary of my situation. We got married in Asia in March last year, 2016, submitted I-130 in early this year 2017.

 

After submitting the petition we decided to move to the US and continue the process here so we arrive early June, I entered the country with a B2 tourist visa.

 

Since my husband has been gone for too long, almost 10 years, we had to wait 90 days consecutively for him to get is resident status back (he is a US citizen). I have been filling out all the forms for adjustment of status and waiting for the day we can submit it.

 

The problem I have is he didn't file his tax returns for the last 3 years. Now we are scrambling to get this done. A CPA accountant told us that I need to get an ITIN so he could file as married for 2016 tax so he could get tax breaks, he is too late in his tax returns that they might not accept his deduction (foreign earned income under $100k). This means we have to either wait 6-7 weeks to get the ITIN back from the IRS or pay a few hundreds for a professional to do it and this would take 2-4 weeks. I plan to submit this Sep 4, exactly 90 days since we got here to save time.

​I was wondering if he could file as "married file separately", we submit our I-485 as planned, meanwhile I make an appointment with an IRS service office (we got the earliest one which is Sep 21st) and a few weeks later get my ITIN, file my late tax return then? OR should I wait till I get my SSN and then file an amended return as "married file jointly"?

​ 1. Have any of you done this before or could give me your opinion on this? If it's okay to do so, in the field where he needs to put my SSN he will put "Applied for ITIN"? or "000000000" if we file electronically?

 

2. For his last 3 year tax filing, he would need to fill out 1040, 4852 and 2225? Is there anything else?

 

2. We have his mom as our co-sponsor by the way and I have her last year tax return and her passport copy which I hope is good enough?

 

Thank you for reading my loooong post.

Edited January 24, 2018 by Randy W (see edit history)

[dnoblett]

One note, the I-485 can be filed as soon as you have the I-130 receipt letter, However, you may be asked hard questions about this, the immigration officer may ask hard questions about your intent upon entry on the visit visa, they can easily deny the AOS if they feel the intent of entry on the visit visa was to immigrate. Tread carefully.

 

The hang up is the tax return, yes can file the return Married filing separate, and then amend, or deal with getting an ITIN so can file a joint return.

 

Will need the return filed in order to attach it to the required I-864 for the AOS.

[housegryffindor]

One note, the I-485 can be filed as soon as you have the I-130 receipt letter, However, you may be asked hard questions about this, the immigration officer may ask hard questions about your intent upon entry on the visit visa, they can easily deny the AOS if they feel the intent of entry on the visit visa was to immigrate. Tread carefully.

 

The hang up is the tax return, yes can file the return Married filing separate, and then amend, or deal with getting an ITIN so can file a joint return.

 

Will need the return filed in order to attach it to the required I-864 for the AOS.

 

Dnoblett, thank you for your super fast reply!

 

I do have the receipt notice of the I-130, but a friend who does immigration services told us we need to wait 90 days until my husband gets his residency back then he can sponsor he, so that's what we did.

 

​If the officer does ask about my intention upon entry on the visitor visa, I'm thinking we could say we were here for the summer and just decided that it is time to settle and move back here so we are doing AOS. Or just tell him the truth, we submitted Í-130, planning to do everything from abroad but then we decided to move here earlier and a visitor visa was the only option I had then.

[Randy W]

If you are not reporting any income or filing your own return, you do not need an ITIN to file separately. You can show NRA (non resident alien) in the field for SSN. Most tax return software does not allow you to do this, but you can either enter "000-00-0000" for the SSN, or file paper returns. If you wish to use tax software, simply print out the forms, and enter "NRA" by hand if you do not wish to enter "000-00-0000".

 

Yes, the IRS in some situations advises the "000-00-0000" for an alien who does not HAVE either an SSN or ITIN when filing electronically.

 

If your tax due is $0 when filing "married filing separately", there is no need nor will you be ABLE to file an amended return to show "married filing jointly".

 

The I-7 is normally filed along with a current return. In that case, you would not need to wait for the number - simply enter "Applied for". But you are filing late returns.

 

As long as no money is due to the IRS, my understanding is that there is no fee or penalty. But he was REQUIRED to file returns if his income was above the reporting requirement limit BEFORE the Foreign Earned Income Exclusion.

 

You do not need to wait for tax transcripts or any acknowledgment from the IRS to file the I-864. Simply enclose copies of the returns as filed, or as they WILL be filed..

Edited August 26, 2017 by Randy W (see edit history)

[Randy W]

Don't get hung up on the tax returns. You can fill them out TODAY (stamp them "Preliminary" if you wish) to file copies for immigration purposes.

[housegryffindor]

Admin, you are the best, you have no idea how much help you have just given me. I have been researching and freaking out about these tax matters and could not find an answer that would put it to rest.

 

It makes much more sense that I don't need to file separately or amend his returns later since our tax due is 0

 

Thank you again <3<3<3