http://www.VisaTaxes.comNon Resident Tax Experts - File Form 1040NR, Form 8843, Form 843, Form W7inF1,J1,H1B, H4 VisasH4 ITIN - How to apply for Individual Tax Identification Number ITIN H4 visaholder Taxes -IRS Form W7

This article addresses the issues associated with filing a tax return with your wife (orchild) who is on an H-4 visa and does NOT have a Social Security or Individual TaxIdentification Number (ITIN).

You are now in the United States on an H-1B visa and your wife has joined you in theUnited States on an H-4 visa. She has no job, and therefore is NOT ELIGIBLE to get aSocial Security number for herself (or the children, if any) when she arrived in thecountry. You wish to file your tax return, but do not know how to treat your wife on thereturn. Do you claim her as a dependent, like the children? Also, the tax instructionsrequire that your wife (and the children) have Social Security numbers (SSN). Now whatdo you do?

As a resident alien, you must file the same return as U.S. citizens, using Form 1040EZ,1040A or 1040. On this return, you can NEVER claim your wife as a dependent unlessyou are filing as a dual-status alien. You either file jointly with your wife, or you fileMarried Filing Separately and your wife files her own tax return. If you file Married FilingSeparately, you CAN claim your wife's personal exemption if she has NO U.S.-sourcedincome. The second option makes no sense because, as a condition of her visa, your wifehas no job and therefore probably has no income to report. There are exceptions to thisrule, but they are few and far between. Therefore, there is no logical reason for her tofile separately, whereas by filing jointly, you can claim your wife’s personal exemption of$3,500 plus double the Standard Deduction, which for 2008 will be $5,450 or $10,900for a couple filing jointly.

Since it is likely you will file jointly (and claim your children as dependents if you havechildren), your wife and children need to apply for an ITIN. Starting in 2005, the IRSrequires you wait until you file your tax return before applying for an ITIN. The formused to make this application is Form W-7. It can be downloaded from the IRS websiteat www.irs.gov, along with the instructions on how to fill out the form. You submit a W-7for each ITIN you apply for, so you will need to fill out one W-7 for your wife and one foreach child.

The instructions which accompany the single page Form W-7 are pretty straight forward,and they offer a number of options as to which supporting forms you need to send withthe W-7 to get your ITIN. However, by far the easiest document to send is a notarizedphotocopy of your wife’s (and children’s) passport. In most states, you can make thephotocopy, then bring the photocopy and the passport to your local bank to have itnotarized as a true copy. You then fill out the Form W-7 and stapled the notarizedphotocopy of the passport to the back of the Form W-7. Note that the passport MUST BECURRENT! In other words, it cannot be expired; the IRS will NOT honor an ITIN requestwith an expired passport.

When you fill in the tax return, you put your wife’s and children’s names on the return asthey appear on their passports. You leave the SSN section next to names BLANK (theIRS will fill in this section when they issue the ITIN). You finish the tax return and print itout. You attach the W-7 (with the notarized photocopy of the passport) to the tax returnwith a paper clip and mail it to the address on the W-7 instructions, which is in Austin,Texas.

The IRS unit that issues the ITIN will open the envelope, review the W-7 and the

supporting documents, and, assuming everything is in order, issue your wife andchildren their own ITIN. These IRS workers will then manually print the ITINs on yourtax return and then process it. If you are getting a refund, you will probably get it aboutsix weeks after you mail the return. Note that the six-week processing time is theoptimal processing time. Forms W-7 that are submitted in March and April often take 2-3months to process due to the heavy volume of returns filed during that period of time.Conversely, Forms W-7 submitted in early January have reportedly been processed inTEN DAYS! So, the earlier you file in the tax year, the faster you will get the ITINs.

The IRS will mail the ITINs to you in separate envelopes, one for each ITIN. Keep thesedocuments in a safe place, as you can use the ITIN in place of the SSN for some of theofficial purposes, like opening a bank account or registering the wife or children atschool. You will also need the ITINs for future tax returns. If your wife or childsubsequently become eligible for a Social Security Number, the SSN supercedes the ITINand should be used on future tax returns in the place of the ITIN.

That is the process, if everything goes according to plan. However, there CAN beproblems.

First, some states (most notably California) do not permit notary publics to notarizepassport photocopies. If you live in such a state, you DO have alternatives. You cancontact the local office of U.S. Post Service (USPS) to see if they will notarize thephotocopies. Since USPS is a federal agency, they do not have to abide by the statenotary laws. If the USPS is not an option, you can contact your local IRS office, whonormally will certify the photocopies and may even accept the filing of the tax returnitself.

Second, many foreign nationals do NOT have their spouse with them in the UnitedStates, but wish to file jointly anyway. The problem is getting the passport photocopyproperly certified or notarized. While there ARE notary publics in foreign countries, theirnotarization seals will NOT be accepted by the IRS unless it is accompanied by anapostille, which refers to the legalization of a document for international use under theterms of the 1961 Hague Convention Abolishing the Requirement of Legalization forForeign Public Documents.

Documents which have been notarized by a notary public, and certain other documents,and then certified with a conformant apostille are accepted for legal use in all the nationsthat have signed the Hague Convention. Getting that apostille CAN be a challenge insome of the countries in Southeast and Southwest Asia, however.

Third, you can get your home country government agency to certify that the passportphotocopy is a true copy. The instructions with the Form W-7 clearly states that thephotocopy can be certified by the government agency which issued the passport.However, in the past two years, the IRS has not accepted such certification as valid, sowe do NOT recommend that this form of certification be used.

The fourth (and probably) the best option for certification available to those in a foreigncountry is to go to the U.S. Embassy or one of the U.S. Consulate offices. Thiscertification is equivalent to the certification by the IRS itself and is ALWAYS accepted bythe IRS, so use this option if possible. The problems, however, are obvious: The U.S.embassy is normally located ONLY in the country's capital city, and NOT all of thesmaller cities have a U.S. Consulate office. Further, not every U.S. Consulate office willcertify these documents, and if they do, they often charge a fee for the service.

As a last resort, you can actually send the passport itself with the Form W-7. The IRSstates they will return the passport after they are done with it. However, in the FormW-7 instructions, the IRS admits that the passport MAY be lost in the process andtherefore suggests you do NOT submit the passport itself. If the IRS admits in the W-7

instructions that the passport may be lost, I cannot in good conscience recommend thatyou send the passport with your tax return.

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