Generally before you become married, you are not able to file any marriage-based petitions except for the K-1 fiancé visa petition. However, we advise most of our clients to start as soon as possible to obtain documents that are likely to be needed from a foreign country. Some of these documents are typically difficult and time consuming to procure, especially foreign birth certificates or registrations.

For those aliens whose births were not registered, or whose birth registration is lost, special procedures are necessary to obtain the affidavits and substitute documentation from the foreign local government that may satisfy the requirement. In addition, all documents in a foreign language must be provided along with certified translations. Those planning to submit marriage based visa petitions may make the process faster if they obtain foreign documents with certified translations ahead of time. Such will typically include birth certificates or registrations, divorce decrees, adoption records, school records, marriage certificates and such.

The K-3 visa petition generally permits those married to US citizens to enter the US faster than if they had to wait for the entire green card process to be completed before entering. Note however, that upon entry with the K-3 visa, the spouse of the US citizen must still complete the green card process in the US. See Faqs for K-1 fiance/K-3 Visas.

Victims of spousal abuse, assault and/or battery may be able to self-sponsor for a green card. Where an abusive US citizen spouse refuses to support an application, the alien may be able to file the petition on his or her own behalf under the provisions of the Violence Against Women Act (VAWA). The application may be approved with or without the support of the abusive spouse. To qualify for self-sponsorship under VAWA, applicants must show the following:

• He/she is a spouse of a US citizen or Legal Permanent Resident (LPR);
• Entered into a good faith marriage;
• Has resided with US citizen or LPR;
• Has good moral character;
• Was battered or subjected to extreme mental cruelty by spouse OR is the parent of a child abused by USC or LPR spouse; and
• Has credible evidence to prove the items above.

Petitions under VAWA are filed using the Form I-360 at the Vermont Service Center and may also be filed by those who may have entered without inspection (EWIs), illegal aliens and those in removal or deportation proceedings.

Illegal aliens may seek adjustment of status under section 245i if they qualify. Also, provisions of VAWA may permit those spouses that have been subjected to abuse to self-sponsor a VAWA adjustment of status application while in the US. Finally, illegal aliens married to US citizens may apply for a hardship waiver at the US embassy of their native country. Visit our Married to Illegal Aliens page for more information on the waiver for illegal aliens married to US citizens.

Aliens married to US citizens but have worked illegally may nevertheless apply for a green card, adjustment of status and work authorization. However, the income earned from illegal employment cannot be counted to meet the I-864 Affidavit of Support obligation. Aliens who have worked illegally should apply for work authorization at the earliest possible time to minimize the duration of unauthorized employment

Most aliens who entered legally with a visa whose visas subsequently expired may still apply for a green card, adjustment of status and work authorization if married to a US citizen. However, it is important to consult an experienced immigration attorney to review the facts and circumstances of the entry, the type of entry visa, and to confirm that adjustment of status application is appropriate and approvable.

Green card applicants who have applied for adjustment of status can only travel with permission from the USCIS. Aliens with pending adjustment of status applications must first apply for Advance Parole and may only travel upon approval of the application for advance parole. Such aliens must carry the approved Advance Parole application and present such upon re-entry. Those aliens on H-1B or H-4 visa status are not required to obtain advance parole. Such aliens may travel on the H visa. However, it is important to speak to an experience immigration attorney before traveling to ensure that current state of the law and that there are no special requirements that may apply to that alien.

Aliens who entered illegally and those that overstayed their visa may not qualify for advance parole and may not be permitted to return to the US after traveling abroad. Such aliens should consult an experienced immigration attorney before making any travel plans.

Yes, In fact our law firm routinely submits those at the same time for qualified applicants. You can submit an application for an EAD card as well as Advance Parole at the same time you submit the marriage green card application. It takes anywhere from 60 to 90 days to obtain USCIS approval for these.

Generally, the USCIS examiner’s goal is to determine whether the couple is in a good faith marriage and sharing a joint life. The USCIS examiner typically asks questions about day-to-day life of the couple; where and how they met; whether friends, relatives and coworkers are aware of the marriage and joint life; and whether or not they have visited friends and family members as a couple. Examiners also review documents from the couple such as leases, bills, photographs, bank statements, credit card statements, and insurance policies to determine whether the claim of a joint life is supported by the documentation provided by the couple. In some instances, the couple will be separated and quizzed separately on different aspects of their daily life, home and activities.

The examiner generally does not rely on one or two factors alone. Instead, they review all of the facts of the situation together to reach a judgment whether they believe that the couple share a joint life.

In some cases, the examiner will approve the petition at the time of the interview. In may cases however, the examiner may first need to get approval from a supervisor, request additional documentation, or conduct additional research before the application is approved. Petitions are sometimes approved on the day of the interview where all of the necessary information has been obtained by the USCIS, the interviewing agent has authority to issue the final approval and no additional documentation is required from the couple prior to the approval. Where additional documentation or material is requested, the alien should cooperate with the USCIS examiner to arrange a mutually convenient time to provide the documents and information expeditiously.

Yes. The USCIS typically requires that your spouse be present at the interview. If your spouse is unable to attend, it is good practice to explain the reasons in writing, submit supporting evidence and request that the interview be rescheduled so that your spouse may attend at a later date.

A typical request for additional evidence must be responded to in 30 or 84 days. It is important to review the amount of time within which to respond in order to provide ample time to do so. Review our checklist of items to show a good faith marriage. If you have already submitted all of the documentation that you have but the examiner is still not satisfied and is asking for more, it is advisable to seek the help of an experienced immigration attorney if you did not retain one already. The attorney is likely to interview the couple extensively to determine whether additional information can be obtained. The attorney may also collect sworn statements from friends, family, co-workers, landlords and others to submit to the USCIS.

This situation needs a thorough review of the case file before a recommendation should can be made. An experienced immigration attorney will likely review the entire application, the divorce decree, other visa options available to the alien and explore whether self-sponsorship is viable under the situation. Aliens in this situation need to consult an attorney as soon as possible while different options may still be available. It is important to note however that failure to appear for the interview will likely result in a rejection of the application

The sponsoring spouse is required to complete and submit an I-864 affidavit of support regardless of income. To meet the public charge requirement however, income from other family household members as well as the alien count in some instances. Those couples with less than the required income may ask household members and other relatives with verifiable income to provide sponsorship as joint sponsors. Joint sponsors must complete the I-864 form and submit the required income verification and tax returns. All of the income, when combined, must also exceed the poverty guidelines considering the number of dependents that they sponsors have.

Generally, those married to US citizens qualify for citizenship after 3 years. Please review our Citizenship/Naturalization Page for information on citizenship.

This is typically difficult to predict because a lot of it depends on the workload of the USCIS. However, an estimate of 6 months to one year is fair. Sometimes, the process is completed sooner than six months. In other instances, it takes more than one year to complete. The difficulty in predicting the length of the processing time stems from the largely unpredictable schedule of the USCIS and its process. The USCIS is committed to reducing this backlog and the waiting period is likely to improve in the coming months and years.

Yes, you may apply for your alien spouse even though you have a criminal conviction

Most minor traffic offenses and parking tickets do not affect an alien’s ability to complete the green card process. Aliens convicted of certain crimes may or may not be able to obtain adjustment of status, depending on the nature of the conviction. More severe crimes and felonies may affect an alien’s ability to obtain or even retain his or her green card. Violent crimes and crimes involving fraud and moral turpitude may hurt an alien’s chances of obtaining permanent residence. Since the determination depends very much on the specific nature of the charge and conviction, Aliens with a conviction should obtain the entire criminal case file from the courthouse and set an appointment with an experienced immigration attorney who will review the facts and circumstances surrounding the conviction and render an opinion.

J-1 visa holders who are not subject to the 2 year foreign residence requirement do not need a waiver prior to seeking a change or adjustment of status. Those subject to the requirement must return to their home country to complete the 2 year foreign residency requirement or obtain a waiver of that requirement through various methods. Review our J-1 visa waiver options page.

Depending on the reason for the denial, there are a couple of options. Generally, most denials can be appealed to the BIA, AAO or Federal court, depending on the reasons and how the denial came about. In some instances, an alien may be able to file a motion to reopen the case and for additional evidence or documentation to be submitted in support. If the case is reopened, it may be reviewed and approved based on the existing evidence and additional evidence submitted. In many instances, the alien is able to resubmit the entire application and pay the filing fees again. Where a petition is resubmitted, the alien would ensure that the missing information that resulted in the prior denial is addressed in the new petition so that another denial does not result.

An individual who obtained a green card through marriage to a US citizen is barred from applying for a new spouse for five (5) years unless he/she can show that the previous marriage was bonafide. As such, those evaluating this option must carefully weigh the risks and additional documentation that may be required before proceeding with a petition for a new spouse during the 5-year period.

Yes. However, your alien spouse will have to wait until a visa becomes available in the Family-based 2A classification before applying for a visa abroad or seeking adjustment of status if in the US. During the waiting period, the alien spouse is not permitted to remain or work in the US unless on another valid visa

No. The K-3 and K-1 visas are only available to those engaged to marry a US citizen and those already married to US citizens. LPRs cannot sponsor the K-1 or K-3 visa.

Those who entered [without inspection] are generally not eligible for adjustment of status. They are subject to the [3/10 year bar] and are thus required to return to their native country for 3 or 10 years (depending on the length of the unlawful presence) before becoming eligible to enter or stay in the US legally. There are 3 ways that affected aliens may attempt to gain permanent residency.

• First, the alien may attempt to adjust his or her status through  [section 245(i)] where he/she filed a green card petition or labor certification petition prior to April 30, 2001.
• Second, the alien’s US citizen spouse may make an I-130 green card petition on behalf of the alien. The I-130 petition itself is not a visa and does not permit the alien to remain in the US. Upon approval however, the alien may apply for a green card at the appropriate US consulate in the alien’s native country. As part of the application, the alien may submit a request for a waiver of the [3/10 year bar]. The waiver application requires that the alien prove that absence from the US will result in extreme hardship for the alien’s US citizen spouse and/or family.

• The third alternative for undocumented aliens is for the alien to depart the US and wait either 3 or 10 years and apply for a green card thereafter. This requires that the alien remain outside the US with or without his or her family.

At the USCIS interview for marriage-based petitions, the USCIS officer questions both the husband and wife to make a determination whether the marriage is real. The officer also looks at the documentation submitted by the parties to determine whether the marriage seems to be real. In many instances, the USCIS officer will attempt to obtain documentation starting from the first months of marriage until the date of the interview. The USCIS officer will likely be impressed where the parties show apartment leases, bank accounts, pictures, assets and other documents dating back to the early months of marriage through the date of the interview. The more documentation that is provided, the more likely that the petition will be granted. Here is a list of documents that may be helpful in showing a joint life:

• Evidence of children born to marriage (birth certificate)
• Evidence of joint property (mortgage or lease contract)
• Joint income tax returns (filed together)
• Utility bills with both names reflecting your current address together (electric bills, water bills, phone bills)
• Evidence of joint finances (joint checking account, joint loans, bank statements, letter from bank)
• Evidence of joint purchases (automobiles, furniture, washer/dryer, refrigerator, etc.)
• Evidence of joint insurance policies (life, health, automobile, house)
• Wedding pictures / vacation pictures / holiday pictures of the husband and wife (and other family members if they were with you)
• Letters and other correspondences to one another (birthday cards, holiday cards, e-mails)
• Letters from family, friends, landlord, neighbors, etc, that could attest to marriage
• Documents if the wife took her husband’s last name (driver’s license, ID cards, ATM card, membership cards, i.e. health club or video stores)

USCIS plans to revise the filing instructions for the I-751 Petition to Remove Conditions on Residence. This will affect marriage-based green card visa petitions where the alien was granted 2-year conditional residence. Such aliens must petition to remove the conditions prior ro the expiration of the 2-year period. [Read The Entire I-751 Petition Changes]

The USCIS has issued a memorandum providing guidance for approving I-130/I-485 petitions submitted by aliens married to or in an abusive relationship with their U.S. citizen spouses. This April 21, 2008 memorandum explains that the Violence Against Women Act (VAWA) allows battered immigrants to petition for legal status on their own. In addition, victims of abuse may submit an I-360 petition for a special immigrant visa status. It also explains that such petitions may be approved even where the alien entered the U.S. without inspection. It essentially permits illegal aliens who are in such relationships to self-sponsor without relying on Section 245(I). It also explains the steps to take where a petition was previously denied because of illegal entry. [Read The Entire Marriage Visa Guidance For Self-Sponsorship]

The USCIS has issued a memorandum regarding the legal rights of K-1 and K-3 visa applicants and others married to U.S. citizens. This memorandum addresses the rights of those subject to family or domestic violence or abuse in the hands of their U.S. citizen spouses. It explains that victims of domestic abuse may be able to self-sponsor for a marriage green card by filing an I-360 (VAWA) Petition as a Special Immigrant. It also explains self-sponsorship for the I-751 Petition to Remove Conditions without the assistance of the abusive spouse as well as the availability of child support payments in the event of a separation. [marriage-visa-k1-k3-visa-domestic]

Green Card/Permanent Residency Visa for Illegal Aliens Married to US Citizens Through Exceptional Hardship Waiver

US citizens married to illegal aliens (without papers) and those who entered the US without inspection (EWIs) face significant hurdles before they can obtain a visa or green card for their illegal alien spouse. In addition to meeting the requirements that all other applicants must obtain, these cases have additional filing requirements. The following are some options to be considered for illegal aliens married to US citizens.

Adjustment of Status Through Section 245i
245(I) permits those who previously filed a permanent residency or labor certification petition on or before April 30, 2001 to remain in the US and seek adjustment of status even if the previous green card application is not approved. Upon marriage to a US citizen, the affected illegal alien will submit an immediate relative petition as well as an I-485 adjustment of status application, pay a fine and proceed with the green card process while remaining in the US — [Section 245i overview]

I-601 US Citizen Spouse Hardship Waiver
Illegal aliens, EWIs, and those subject to the 3/10 year bars may apply for a green card if married to a US citizen through the hardship waiver process. The first step is to submit an I-130 immediate relative petition to a USCIS service center in the US. Upon approval and NVC processing, the alien would apply to complete the green card process at a consulate in his or her native country. As part of that application, the illegal alien will submit an I-601 request for a hardship waiver along with extensive documentation and evidence. The alien is not permitted to complete the process while in the US but must leave the country to do so.

The I-601 hardship waiver application requires the alien to prove that not permitting him to reenter the US will result in extreme hardship to his or her S citizen spouse. Extensive and detailed documentation is required to prove this equirement. Such evidence should include sworn statements from family members, friends and acquaintances, medical records, psychiatric/psychological records, school records, evidence of illness of family members, financial information and tax returns, letters from teachers, support letters from churches and community organizations, evidence of health and emotional problems that may result from the separation, and such other documentation. This waiver process may also be used for applications submitted by US citizen parents on behalf of their illegal child as well as applications by permanent residents on behalf of their illegal spouse or child. If approved, the green card application is granted and the alien is permitted to return to the US to assume permanent residency or green card status.

Due to the extensive nature of the documentation required for this process, it is important to consult an immigration attorney familiar with the law in this area. Our immigration attorneys are competent and can assist with questions or filing the application. A recent ruling by the [Administrative Appeals Office (AAO)] should also provide some guidance for reparing the I-601 hardship waiver application.

Please use our Contact Us form or call at 312 795-9110 to get more information

To qualify for U.S. citizenship, an applicant must: have been a U.S. permanent resident  for 5 years (3 years if applying based on marriage to a U.S. citizen), be a person of good moral character, be 18 years of age, meet the physical residence requirements for citizenship, pass the literacy, U.S. history and government tests.

To qualify for citizenship, an applicant must not only be a U.S. permanent resident for the required time period, but must also demonstrate that he has maintained continuous U.S. residency for a certain period of time.  For those applying based on marriage to a U.S. citizen, the requirement is 3 years of continuous residence in the U.S.  Such applicants must also prove that they were physically present in the U.S. for at least half of that time (18 months).

For those applicants not applying based on marriage to a U.S. citizen, 5 years of continuous residence is required.  Such applicants must also be physically present in the U.S. for at least half that time (30 months). 

For all applicants, absences of six months or less from the U.S. do not break an applicant’s continuous residence.  However, absences that are six months or more may result in a break of the continuous residence. Once broken, an applicant must re-accrue continuous residence.

In some instances, an applicant who must take an extended trip outside of the U.S. may file an application to preserve residence for naturalization.  If approved, this permits a permanent resident to meet the continuous residence requirement even though he is not physically present in the U.S. for a prolonged period as required.

Good moral character is not specifically defined. However, it reflects character that measures up to the standards of the average citizen in a particular community in which the applicant resides. It does not require that the applicant be a person of the highest degree of morals.

Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years, or three years if married to a U.S. citizen, or one year for Armed Forces expedite) prior to filing for naturalization. The Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:

• has committed and been convicted of one or more crimes involving moral turpitude;
•  has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
• has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana;
• has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more; 
• has committed and been convicted of two or more gambling offenses;
• is or has earned his or her principle income from illegal gambling;
• is or has been involved in prostitution or commercialized vice;
• is or has been involved in smuggling illegal aliens into the United States; 
• is or has been a habitual drunkard;
• is practicing or has practiced polygamy;
• has willfully failed or refused to support dependents;
• has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.

Applicants are required to show good moral character.  Certain convictions may adversely affect one’s ability to show good moral character.  In some instances, applicants are not able to demonstrate good moral character when they engage in certain criminal conduct even if no conviction or charge was obtained against them.  The determination whether one is prevented for naturalizing due to a crime depends on the nature, severity and circumstances surrounding the criminal conduct.  In order to evaluate the impact of a charge or conviction on a potential citizenship petition, an immigration attorney is likely to review all documents relating to the charges and conviction as well as copies of the court file.

An application for naturalization may be submitted 90 days earlier than the date on which the applicant meets the continuous residence requirement. As such, those who seek to apply based on marriage to a U.S. citizen may submit the application after 2 years and 9 months. Other applicants may submit the petition after 4 years and 9 months.

Please click here to read the USCIS memorandum on Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote. 

To see a flow chart on illegal voting and false claim to U.S. Citizenship, click here.

Yes, applicants must pass a test to demonstrate ability to read, write and speak elementary English.  Disabled persons who are unable to pass this test may obtain and submit a statement from a health-care provider to obtain an exemption.

Applicants are tested on their ability to speak and understand the English language.  This requirement will be waived if:

• the applicants are over 50 years of age and have lived in the U.S. for 20 years subsequent to their lawful permanent resident status; or
• the applicants are over 55 years of age and have lived in the U.S. for 15 years subsequent to lawful permanent resident status. 

Applicants are also required to take a written exam regarding U.S. government and history. Applicants over the age of 65 who have been lawful permanent resident for 20 years or more may obtain special consideration. Applicants who qualify for this special consideration would only be required to take a written examination which consists of 25 questions. The applicants would be required to answer only 10 of those questions. Of those 10 questions, the applicants need to answer only 6 correctly. The test would be administered in the persons' native language.  Preparation material for this examination may be obtained at a U.S. government book store. In addition, certain schools offer preparatory courses.

Knowledge of U.S. History and Government Examination

• United States History Study Guide for Civics Exam  
  
• United States Government Structure Study Guide for Civics Exam 
  
• 100 Sample U.S. History and Government Questions with Answers
  
• Naturalization Test Questions for Applicants Meeting 65/20 Exception
  

English Language Examination

• Sample Sentences for Written English Testing 
   

Yes, click here to perform an online self-test of U.S. History.

Under the Child Citizenship Act (CCA) of 2000, effective on February 27, 2001, orphans adopted by U.S. Citizens acquire citizenship automatically when the following requirements are met:

• At least one parent is a U.S. citizen.
• The child is under 18 years of age.
• There is a full and final adoption of the child, and the child is admitted to the U.S. as a Lawful Permanent Resident.
• The child is residing in the legal and physical custody of the citizen parent in the United States.

Orphans entering the U.S. under the IR-3 visa become U.S. citizens upon admission as long as they meet the above-mentioned requirements. Those meeting the requirements usually receive a certificate of citizenship within 45 days of entering.

On the other hand, orphans entering the U.S. under the IR-4 visa do not become U.S. citizens when the adoption is finalized in the United States.  They will however, be Lawful Permanent Residents until then. 

For more information,  please see Frequently Asked Question on Child Citizenship Act

At the present time, USCIS is not able to automatically provide biological parents with documentation of their child's citizenship. USCIS will continue to implement programs that streamline processes to more rapidly issue Certificates of Citizenship to qualifying children.

Child Citizenship Act     Child Citizenship Act FAQs 

No. Individuals who are 18 years of age or older on February 27, 2001, do not qualify for citizenship under the CCA, even if they meet all other criteria. If they wish to become U.S. citizens, they must apply for naturalization and meet eligibility requirements that currently exist for adult lawful permanent residents.

Child Citizenship Act     Child Citizenship Act FAQs

If your child permanently resides in the U.S, you can obtain evidence of your child's citizenship by applying for a Certificate of Citizenship. You will need to file an Application for Certificate of Citizenship to the USCIS. You can also apply for a U.S. Passport from the Department of State.

Child Citizenship Act     Child Citizenship Act FAQs 

No. If your child satisfies the requirements listed above, he or she automatically acquires U.S. citizenship by operation of law on the day he or she is admitted to the United States as an immigrant. Your child's citizenship status is no longer dependent on USCIS approving a naturalization application.

Child Citizenship Act     Child Citizenship Act FAQs 

Under the Child Citizenship Act (CCA), your child will automatically acquire U.S. citizenship on the datethat all of the following requirements are satisfied:

• At least one parent is a U.S. citizen
• The child is under 18 years of age
• The child is admitted to the United States as an immigrant.

Child Citizenship Act     Child Citizenship Act FAQs 

An April 25, 2008 Memorandum issued by the USCIS responds to the surge in N-400 citizenship and naturalization applications as well as the lengthy delays in processing applications already filed and pending. The memo also addresses the lengthy delays and wait for citizenship/naturalization interviews.

The USCIS issued an updated memorandum on April 14, 2008 regarding naturalization/Citizenship through military service. The provides a good avenue for those who served or are serving in any of the following branches of the military: Army, Navy, Air Force, Marine Corps, Coast Guard and certain reserve components of the National Guard of the Ready Reserve. Read USCIS Fact Sheet..

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For tax purposes, an alien is an individual who is not a U.S. citizen. Aliens are classified as resident aliens and nonresident aliens. Resident aliens are taxed on their worldwide income, the same as U.S. citizens. Nonresident aliens are taxed only on their U.S. source income.

The difference between these two categories is that effectively connected income, after allowable deductions, is taxed at graduated rates. These are the same rates that apply to U.S. citizens and residents. Income that is not effectively connected is taxed at a flat 30% (or lower treaty) rate

The term "exempt individual" does not refer to someone exempt from U.S. tax. You were referred to as an exempt individual because as a student temporarily in the United States on an F Visa, you do not have to count the days you were present in the United States as a student during the first 5 years in determining if you are a resident alien under the substantial presence test.

You must file Form 1040NR if you are engaged in a trade or business in the United States, or have any other U.S. source income on which tax was not fully paid by the amount withheld. You can use Form 1040N R-EZ instead of Form 1040NR if you meet all 11 conditions listed under Form 1040NR-EZ in chapter 7.

You were a dual-status alien last year. As a general rule, because you were in the United States for 183 days or more, you have met the substantial presence test and you are taxed as a resident. However, for the part of the year that you were not present in the United States, you are a nonresident. File Form 1040. Print "Dual-Status Return" across the top. Attach a statement showing your U.S. source income for the part of the year you were a nonresident. You may use Form 1040NR as the statement. Print "Dual-Status Statement" across the top.

If you are an employee and you receive wages subject to U.S. income tax withholding, you must generally file by the 15th day of the 4th month after your tax year ends. If you file for the 2007 calendar year, your return is due April 15, 2008. If you are not an employee who receives wages subject to U.S. income tax withholding, you must file by the 15th day of the 6th month after your tax year ends. For the 2007 calendar year, file your return by June 16, 2008.

A social security number (SSN) must be furnished on returns, statements, and other tax-related documents. If your spouse does not have and is not eligible to get an SSN, he must apply for an individual taxpayer identification number (ITIN). If you are a U.S. citizen or resident and you choose to treat your nonresident spouse as a resident and file a joint tax return, your nonresident spouse needs an SSN or an ITIN. Alien spouses who are claimed as exemptions or dependents are also required to furnish an SSN or an ITIN.

Generally, you cannot file as married filing jointly if either spouse was a nonresident alien at any time during the tax year. However, nonresident aliens married to U.S. citizens or residents can choose to be treated as U.S. residents and file joint returns.

Assuming both of you had these visas for all of last year, you are a resident alien. Your husband is a nonresident alien if he has not been in the United States as a student for more than 5 years. You and your husband can file a joint tax return on Form 1040, 1040A, or 1040EZ if he makes the choice to be treated as a resident for the entire year. If your husband does not make this choice, you must file a separate return on Form 1040 or Form 1040A. Your husband must file Form 1040NR or 1040NR-EZ. Is a "dual-resident taxpayer" the same as a "dual-status taxpayer"?' No. A dual-resident taxpayer is one who is a resident of both the United States and another country under each country's tax laws. You are a dual-status taxpayer when you are both a resident alien and a nonresident alien in the same year.

The following rules apply if the dividends and capital gains are not effectively connected with a U.S. trade or business. Capital gains are generally not taxable if you were in the United States for less than 183 days during the year. Dividends are generally taxed at a 30% (or lower treaty) rate. The brokerage company or payor of the dividends should withhold this tax at source. If tax is not withheld at the correct rate, you must file Form 1040NR to receive a refund or pay any additional tax due. If the capital gains and dividends are effectively connected with a U.S. trade or business, they are taxed according to the same rules and at the same rates that apply to U.S. citizens and residents.

If you are a nonresident alien, 85% of any U.S. social security benefits (and the equivalent portion of tier 1 railroad retirement benefits) you receive is subject to the flat 30% tax, unless exempt, or subject to a lower treaty rate.

If you are a nonresident alien and the scholarship is not from U.S. sources, it is not subject to U.S. tax. If your scholarship is from U.S. sources or you are a resident alien, your scholarship is subject to U.S. tax according to the following rules. • If you are a candidate for a degree, you may be able to exclude from your income the part of the scholarship you use to pay for tuition, fees, books,A supplies, and equipment required by the educational institution. However, the part of the scholarship you use to pay for other expenses, such as room and board, is taxable. If you are not a candidate for a degree, your scholarship is taxable.

Nonresident aliens cannot claim the standard deduction.

You cannot claim the standard deduction allowed on Form 1040. However, you can itemize any allowable deductions.

Nonresident aliens can claim some of the same itemized deductions that resident aliens can claim. However, nonresident aliens can claim itemized deductions only if they have income effectively connected with their U.S. trade or business.

Publication 519 (2007) Resident aliens can claim personal exemptions and exemptions for dependents in the same way as U.S. citizens. However, nonresident aliens generally can claim only a personal exemption for themselves on their U.S. tax return. There are special rules for residents of Mexico, Canada, and the Republic of Korea (South Korea); for U.S. nationals; and for students and business apprentices from India.

As a dual-status taxpayer, you usually will be able to claim your own personal exemption. Subject to the general rules for qualification, you can claim exemptions for your spouse and dependents when you figure taxable income for the part of the year you are a resident alien. The amount you can claim for these exemptions is limited to your taxable income (figured before subtracting exemptions) for the part of the year you are a resident alien. You cannot use exemptions (other than your own) to reduce taxable income to less than zero for that period.

If you are a nonresident alien for any part of the year, you cannot claim the earned income credit.

If you are a nonresident alien for any part of the year, you generally cannot claim the education credits. However, if you are married and choose to file a joint return with a U.S. citizen or resident spouse, you may be eligible for these credits.

Generally, services you perform as a nonresident alien temporarily in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101 (a)(15) of the Immigration and Nationality Act are not covered under the social security program if you perform the services to carry out the purpose for which you were admitted to the United States.

If social security or Medicare taxes were withheld in error from pay that is not subject to these taxes, contact the employer who withheld the taxes for a refund. If you are unable to get a full refund of the amount from your employer, file a claim for refund with the Internal Revenue Service on Form 843.

Before leaving the United States, aliens generally must obtain a certificate of compliance. This document, also popularly known as the sailing permit or departure permit, is part of the income tax form you must file before leaving. You will receive a sailing or departure permit after filing a Form 1040-C or Form 2063.