The situation
You are a U.S. citizen or U.S. tax resident — maybe on an H-1B, maybe a green card holder — and your spouse lives in Taiwan, China, or elsewhere and is not a U.S. tax resident. Married couples normally choose between filing jointly or separately, but a nonresident spouse changes the options.
The IRS gives you a choice: treat your spouse as a U.S. resident for tax purposes and file a joint return, or don't — and file without them.
Your three main options
| Option | How it works | Key trade-off |
|---|---|---|
| Married filing separately | You file your own return; your spouse is not included | Married filing separately tax rates and rules apply; your spouse's foreign income stays off your U.S. return |
| Head of household | Possible if you pay more than half the cost of a home for a qualifying dependent or relative — not your spouse | Better rates than separate, but only if you have a qualifying person |
| Joint return with the election | You choose to treat your nonresident spouse as a U.S. resident and file jointly | Joint rates and deductions, but your spouse's worldwide income is taxed by the U.S. |
The election: treating your spouse as a U.S. resident
If, at the end of the tax year, one spouse is a U.S. citizen or resident and the other is not, you can choose to treat the nonresident spouse as a U.S. resident. In this guide we call it the election. If you make it:
- Both of you are treated as U.S. residents for federal income tax purposes for every year the election is in effect.
- You must file a joint return for the year you make the election. In later years you may file jointly or separately.
- Each spouse reports their entire worldwide income for that year and all later years, unless the election is suspended or ended.
- Generally, neither of you can claim tax treaty benefits as a resident of a foreign country while the election is in effect.
- For Social Security and Medicare tax withholding, the nonresident spouse may still be treated as a nonresident.
How to make the election
Attach a statement, signed by both spouses, to your joint return for the first year. It must include:
- A declaration that on the last day of the tax year one spouse was not a U.S. citizen or resident and the other was, and that you choose to be treated as U.S. residents for the entire year
- The name, address, and identification number (SSN or ITIN) of each spouse
You can also make the election later on a joint amended return (Form 1040-X), within 3 years from the date you filed the original return or 2 years from the date you paid the tax, whichever is later.
The election continues until it is suspended or ended. It ends if either spouse revokes it, either spouse dies, you legally separate, or the IRS ends it because records are inadequate. Once it ends, neither of you can ever make it again — even if married to a different person.
When the election is suspended
The election does not apply to a later year in which neither of you is a U.S. citizen or resident at any time — for example, if you both live outside the U.S. all year. It comes back into effect if one of you becomes a U.S. resident again.
Should you make the election? A worked comparison
Kevin is a U.S. resident on an H-1B visa earning a U.S. salary. His wife Amy lives in Taiwan, is a nonresident alien, and earns a Taiwan salary.
| Kevin files married filing separately | Joint return with the election | |
|---|---|---|
| Amy's Taiwan salary on the U.S. return | No | Yes — converted to U.S. dollars |
| Tax rates and standard deduction | Married filing separately | Married filing jointly |
| Taiwan income tax Amy paid | Not relevant | May qualify for a foreign tax credit |
| Amy's Taiwan accounts | Not on Kevin's Form 8938 | Amy becomes a specified individual for Form 8938 |
| Amy needs an SSN or ITIN | Yes | Yes |
Which option costs less depends on both spouses' income, deductions, and any foreign tax credit — a joint return brings joint rates and deductions, but also adds Amy's worldwide income to the U.S. return. The only way to know is to calculate both ways before filing.
If your spouse moves to the U.S. during the year
A spouse who arrives partway through the year and is a U.S. resident at year end is usually a dual-status taxpayer for that year. A related election lets a dual-status spouse who is married to a U.S. citizen or resident at year end be treated as a resident for the entire year and file jointly. See Dual-status tax returns.
Because the election is long-lasting and can only be made once if ended, have a tax professional run the numbers if your spouse has significant foreign income, investments, or accounts — or if either of you might rely on a tax treaty.