@GreenMountain85 wrote:
Thank you for all of this helpful information.
I apologize for not giving more info. I didn't know how much or what to provide.
Our children live with us. My spouse lives with me. We are all living in the US. He does not have any income.
For some reason, I had thought that a W7 could only be filed if the non-resident alien had a W2 which my spouse does not have since he is not working. Obviously I was incorrect in thinking that. Now I see that a W7 for an ITIN can be filed if we file jointly and mail it in. That is what I am going to plan on doing.
Your spouse is NOT a "non-resident alien" if he lives in the US, he is a resident alien.
https://www.irs.gov/individuals/international-taxpayers/resident-aliens
Or possibly he has been in the US less than 180 days of 2020, and does not pass the substantial presence test, which might make him an NRA for 2020, but he would be a resident alien for 2021.
In either case, filing a joint return would make him eligible for an ITIN even if he were an NRA for 2020. Filing MFS in your situation will give you the best tax situation, even though there will be a delay in processing the return.
