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I want to apply for ITIN for my wife and my kid. But my visa (H1) has expired and an extension has been applied. The decision on the extension is yet to come.

Forum|Forum|6 years ago
June 7, 2019
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I want to apply for ITIN for my wife and Kid.

They are on dependent visa H4

But my visa (H1) has expired and an extension has been applied.

The decision on the extension is yet to come.

All I have is the extension acknowledgement receipt.

How can i apply for ITIN under these circumstances

Best answer by Fern

You still need to file a tax return even though your visa has expired.  Because of your status you must determine if you are a resident alien or non-resident alien using the substantial presence test.  If you spend at least 31 days in the U.S. during the current tax year and a total of 183 days during the last three tax years (inclusive of the current tax year), you’ll usually satisfy the physical presence test and are also treated as a resident alien.

You can still apply for an ITIN for your wife and child only if you qualify as a resident alien using the substantial presence test.  If you spend at least 31 days in the U.S. during the current tax year and a total of 183 days during the last three tax years (inclusive of the current tax year), you’ll usually satisfy the physical presence test.
On Form W7, box d or e require you to provide the name and social security number of the US Citizen/Resident Alien.  A copy of the Visa is not required.  This will allow the W7 form to be processed.
However, you must resolve your Visa issue because once it expired, technically your social security number is no longer valid.  The law does state “These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.”

See https://books.google.com/books?id=Tsd8E90G6RwC&pg=PT230&lpg=PT230&dq=%E2%80%9CThese+aliens+are+authorized+to+continue+employment+with+the+same+employer+for+a+period+not+to+exceed+240+days+beginning+on+the+date+of+the+expiration+of+the+authorized+period+of+stay.%E2%80%9D&source=bl&ots=fgR44LHJK4&sig=XqjFW7xjWTmpxBsWODXOtTlqxGc&hl=en&sa=X&ved=0ahUKEwjMxrG0jZbKAhWBQCYKHRDpA1gQ6AEINDAG#v=onepage&q=%E2%80%9CThese%20aliens%20are%20authorized%20to%20continue%20employment%20with%20the%20same%20employer%20for%20a%20period%20not%20to%20exceed%20240%20days%20beginning%20on%20the%20date%20of%20the%20expiration%20of%20the%20authorized%20period%20of%20stay.%E2%80%9D&f=false

Alternatively, you can wait until you hear about the extension of your Visa if you want to file as a non-resident alien.  Under this status, you would check box g and you would need to provide a copy of your Visa with the form W7.  It can take 2 to 4 months for the extension to be processed according to the USCIS.

TurboTax does not support form W7 but you can download and prepare the form. Here are links for the form http://www.irs.gov/pub/irs-pdf/fw7.pdf and the instructions http://www.irs.gov/pub/irs-pdf/iw7.pdf for your reference.

F

FernAnswer

Employee

You still need to file a tax return even though your visa has expired.  Because of your status you must determine if you are a resident alien or non-resident alien using the substantial presence test.  If you spend at least 31 days in the U.S. during the current tax year and a total of 183 days during the last three tax years (inclusive of the current tax year), you’ll usually satisfy the physical presence test and are also treated as a resident alien.

You can still apply for an ITIN for your wife and child only if you qualify as a resident alien using the substantial presence test.  If you spend at least 31 days in the U.S. during the current tax year and a total of 183 days during the last three tax years (inclusive of the current tax year), you’ll usually satisfy the physical presence test.
On Form W7, box d or e require you to provide the name and social security number of the US Citizen/Resident Alien.  A copy of the Visa is not required.  This will allow the W7 form to be processed.
However, you must resolve your Visa issue because once it expired, technically your social security number is no longer valid.  The law does state “These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.”

See https://books.google.com/books?id=Tsd8E90G6RwC&pg=PT230&lpg=PT230&dq=%E2%80%9CThese+aliens+are+authorized+to+continue+employment+with+the+same+employer+for+a+period+not+to+exceed+240+days+beginning+on+the+date+of+the+expiration+of+the+authorized+period+of+stay.%E2%80%9D&source=bl&ots=fgR44LHJK4&sig=XqjFW7xjWTmpxBsWODXOtTlqxGc&hl=en&sa=X&ved=0ahUKEwjMxrG0jZbKAhWBQCYKHRDpA1gQ6AEINDAG#v=onepage&q=%E2%80%9CThese%20aliens%20are%20authorized%20to%20continue%20employment%20with%20the%20same%20employer%20for%20a%20period%20not%20to%20exceed%20240%20days%20beginning%20on%20the%20date%20of%20the%20expiration%20of%20the%20authorized%20period%20of%20stay.%E2%80%9D&f=false

Alternatively, you can wait until you hear about the extension of your Visa if you want to file as a non-resident alien.  Under this status, you would check box g and you would need to provide a copy of your Visa with the form W7.  It can take 2 to 4 months for the extension to be processed according to the USCIS.

TurboTax does not support form W7 but you can download and prepare the form. Here are links for the form http://www.irs.gov/pub/irs-pdf/fw7.pdf and the instructions http://www.irs.gov/pub/irs-pdf/iw7.pdf for your reference.