Obtaining Green Card for Non-Resident Spouse of US Citizen - Tax Requirements
Ines Zemelman, EANov-10-2016
Congratulations - you’re married! If you are a US citizen and your spouse is not, you may want to obtain a Green Card or Immigrant Visa for your new spouse. In order to do so, you must certify that you are up to date with your US tax returns and attach transcripts to show proof.
In addition to the tax transcripts, it is helpful to provide proof of current employment. Either a summary of payslips or an employer letter stating your current position, salary, and how long you have been there should suffice.
How do I know If I was required to file a tax return?
All US citizens and GC holders are required to file a US tax return declaring their worldwide income (question 20 in the I-864 application above refers to worldwide income). Please see Minimum Filing Requirements to determine if you were not required to file.
What if I was below the filing threshold for a given year, should I still complete a tax return for it in order to apply for the GC?
You must present a copy of tax return for all 3 years, including those that your income was below the filing threshold. Otherwise you jeopardize positive decision regarding your application for the spousal green card.
I didn’t file tax returns before, will I have to pay penalties?
Through the use of the Streamlined Program - you will be able to kill two birds with one stone; file 3 years of tax returns to complete your spouse’s GC application, and you will be able to get into compliance with the IRS with amnesty from penalties.
This program requires you to file 3 years of tax returns (which you need for the GC application) as well as 6 years FBAR. There are severe penalties for failure to file FBARs, so this program offers an olive branch to allow you to get caught up with full amnesty.
Do I have to declare my non-US spouse’s income and their bank accounts?
No - you do not have to declare your non-US spouse’s income on your tax return. You may choose to do so, but it is not required.
Your FBAR, however, does need to include any accounts that you are a signatory on with your spouse. Individually owned accounts by your non-US spouse do not need to be reported.
Do I have to show proof of filed FBARs?
Not officially for the spouse Green Card application. However, you want to ensure that there are no loose ends and your t’s are crossed and i’s are dotted. As a US person, you have a requirement to file FBAR if you are above the threshold ($10k in aggregate across all non-US accounts at any point in time in the year).