What's my Spose status for tax filing?

[solenya]

I am on H1 and my spouse was working on H1 as well for the last 5 years and so we have been filing as "Married Filing Jointly". My spouse lost her job and she went back to home country for the whole tax year. Here VISA got rejected for both H4 or H1 for overstaying in USA.

I know that i can NOT change my filing status since i am still married and also i can NOT file her as a dependent because she is not in USA and also she does not have any VISA status either.

So, the question is how should I include her in my tax filing? Married Filing Jointly with my spouse as 0 income status. If anyone in a similar scenario, please let me know.

Thanks in advance.

[newacct]

A spouse is never a dependent. You must file as either Married Filing Jointly or Married Filing Separately.

To file as Married Filing Jointly, you would have to use Nonresident Spouse Treated as Resident, which means your wife's worldwide income the whole year would be subject to US tax (though she can use the Foreign Earned Income Exclusion to exclude the first ~$100k of foreign earned income since she has been out of the US for 330 days of a 12-month period; any remaining income she can use the Foreign Tax Credit on it).

If you guys file as Married Filing Separately, she wouldn't have to file if she didn't have any US income, since she is a nonresident alien.

[solenya]

Thank you. That helps. There is no income outside the US. So, filing as MFJ (Married Filing Jointly) and treat the spouse as a resident would be appropriate in my case.

Was researching on this and the IRS article confirms your answer as well. For the people in the future, here is the IRS link

https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or resident alien and the other is a nonresident alien, you can choose to treat the nonresident as a U.S. resident. This includes situations in which one of you is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other is a nonresident alien at the end of the year.