@lady_kontacts wrote:
My spouse came as a child to the US and his parents never filed for him to get a green card or anything and as an young adult going to college, he applied for DACA but never got a response back and now that we’re married, we haven’t started the process of getting him papers and this year I thought I qualified for the HOH.
but I did go back to the FTB for our state and it stated I couldn’t file as HOH because I was married and living with spouse more than 6 months.
but my question was about the ITIN and @Opus 17 gave the answer I needed. Thanks.
Your spouse is a resident alien, not a non-resident alien. Because you live with your spouse, your only choices are to file married filing separately or married filing jointly. The special rules discussed above only apply to non-resident aliens, they do not apply to you.
You are always allowed to amend a return to change to MFJ, even after the regular deadline. (You generally can't change from MFJ to something else.)
To file MFJ with a spouse who does not have an ITIN, apply for the ITIN at the same time as filing the amended return as a described. Here are some more links that may be helpful.
https://www.irs.gov/individuals/how-do-i-apply-for-an-itin
https://www.irs.gov/individuals/international-taxpayers/resident-aliens
https://turbotax.intuit.com/tax-tips/irs-tax-return/who-needs-an-itin-or-individual-tax-identificati...
https://turbotax.intuit.com/tax-tips/family/claiming-a-non-citizen-spouse-and-children-on-your-taxes...
