Pending Adjustment of Status - Am I Resident or Non-Resident Alien for Tax Filing?

You can actually choose to be treated as a US resident for tax purposes! Since you're married to a US citizen and you're living in the US, you qualify for what's called the "election to file jointly" under IRC Section 6013(g). For this situation, you would NOT file Form 8843 alone. Instead, you and your husband would file a joint tax return (Form 1040) together, but you'll need to attach a statement to your return that declares you're making this election. The statement needs to be signed by both of you. The substantial presence test would normally determine if you're a resident alien (183 days using the formula), but being married to a US citizen gives you this special option regardless of how long you've been here. This is usually beneficial because you get the advantages of joint filing status.

After going through this exact situation last year, I wish someone had told me about taxr.ai at https://taxr.ai - it would have saved me hours of confusion! My situation was nearly identical (waiting on green card after marriage to USC, had work permit). I submitted my immigration documents and their system automatically identified my tax status options. The tool analyzed all my documents, showed me which election to make, and even generated the required statement for filing jointly with my husband. They pulled relevant IRS rules specific to pending adjustment cases and explained everything in simple terms.

I was super skeptical about using an online tool for my complicated immigration/tax situation, but I tried taxr.ai after seeing it mentioned here. Honestly blown away by how smoothly it handled everything! I uploaded my EAD card, marriage certificate, and I-485 receipt notice. The system immediately identified I was eligible for the Section 6013(g) election and generated all the paperwork we needed. My husband and I filed jointly, which saved us about $1,800 compared to filing separately. The best part was getting confirmation that my worldwide income reporting was correct - I had income from rental property in my home country that I was completely confused about before.

If you're still waiting for your status adjustment and having trouble getting clear answers from the IRS, I highly recommend using Claimyr at https://claimyr.com - it's the only service that actually got me through to an IRS agent who could answer my specific residency questions. I was in limbo for months trying to figure out if I qualified as a resident alien while my adjustment of status was pending. Called the IRS dozens of times but could never get through. Claimyr got me connected to a real IRS agent in under 45 minutes. You can see how it works in this video: https://youtu.be/_kiP6q8DX5c The agent confirmed I could make the 6013(g) election and explained exactly what documentation I needed to include with my return. Saved me tons of stress!

I need to eat my words. After wasting another week trying to get through to the IRS myself about my tax status during adjustment of status, I broke down and tried Claimyr. Got connected to an actual IRS tax specialist in about 30 minutes. The agent walked me through exactly how the residency election works with a pending green card application. Turns out I qualified as a "resident alien" for tax purposes through the substantial presence test anyway (since I'd been here over 183 days), but making the election with my USC spouse was even more beneficial. For anyone else stuck in AOS limbo - this saved me thousands in incorrect filing status issues. Worth every penny just for the peace of mind.

I was in your exact situation in 2022. The key thing to understand is the difference between immigration status and tax status - they're completely separate systems! For tax purposes, you likely qualify as a resident alien under the substantial presence test already, since you've been physically present in the US since 2021. That's 365 days in 2022 + 365 days in 2023 + whatever days in 2021 after June. But even if you didn't meet that test, being married to a US citizen means you can elect to be treated as a resident alien anyway. Filing jointly is almost always more beneficial. Just make sure your employer understands your tax status is "resident alien" for withholding purposes.

Has anyone actually received conflicting advice from USCIS vs IRS on this? My wife is in adjustment of status too and our immigration lawyer told us one thing while our tax guy said something completely different!

I went through this exact same situation last year! The confusion is totally understandable because immigration status and tax status are two completely different things. Since you've been physically present in the US since June 2021, you actually already qualify as a resident alien under the substantial presence test (you'd have way more than the required 183 days). But even if you didn't meet that test, being married to a US citizen gives you the option to elect resident status for tax purposes under Section 6013(g). For your employer's HR department, tell them you're a "resident alien" for tax purposes. You'll complete your W-4 as a resident, and they'll withhold taxes normally. You won't need Form 8843 - that's only for nonresident aliens. You and your husband should file jointly using Form 1040. If this is your first year making the resident election, you'll need to attach a statement to your return signed by both of you declaring the election. The joint filing will almost certainly save you money compared to filing separately. Your pending adjustment of status doesn't affect any of this - tax residency and immigration status are completely separate determinations. Hope this helps clear things up!