Can I claim EITC as head of household? Iam on F1 visa (passed the presence test) married to F-2 ( does not have SSN)

[MM96]

Can I claim EIC in my 2020 return? I'm on F1 visa since 2015. My wife was on F2 visa since 2015. I passed the presence test in 2020 and so, I can file as resident alien using turbotax. However, my wife does not have SSN, and so I was advised by the turbotax team to file as head of household as I have 2 dependent US citizens children. Is my wife considered as resident or non resident for tax purposes? Can I claim EITC as it was stated in turbotax online that I can not claim EITC if I am married to a non resident alien? Thank you for your help!

[DanaB27 · Accepted solution]

No, you cannot claim the Earned Income Credit (EIC).

Your wife is considered a resident for tax purposes once she met the Substantial Presence Test  in 2015 or 2016 (assuming she was never a full time student).

If you lived together then you are not able to file as head of household. You can only file a married filing jointly or married filling separately. But in both cases you would not qualify for EIC. Please see What are the qualifications for the Earned Income Credit (EIC or EITC)?

(Pub 4011 2020)

[MM96]

Thank you so much for your response. 

She was filing 8843 form for excempt individual for the past 5 years (2015 till 2019) because as far as I know, the excemption still applies for immediate family members for full time students ( myself on F1). In 2020, I passed the presence test, I became resident alien, I assume she also became resident alien as well? Can we now apply as married filing jointly and apply for ITIN for her while filing? If I already filed my return as head of household, Can that be amended using turbotax? I assume I would greater refund if I did file as MFJ

Thanks a lot in advance for your reply

[DanaB27]

Yes, she would only be exempt for 5 years maxium as well therefore she is now a resident for tax purposes. 

Yes you can apply for ITIN and file married filing jointly.  Please see How do I apply for an ITIN? 

Yes, you can use TurboTax to file an amended return (1040X). Please see FAQ How to amend a tax return for instructions on how to file 1040X.

Please see the links below when Form 1040X is available:

• IRS forms availability table for TurboTax individual (personal) tax products
• State forms availability table for TurboTax individual (personal) tax products

[MM96]

Thank you so much and I really appreciate your help!

I have another question, considering my residency status.  In 2020, I meet the substantial presence test and become resident alien. I am full time employed and have a w2. However, I received 1042s form with 3000 income  ( treaty benefit US and egypt)  Does that affect my residency for tax purposes? I still want to file as resident alien to benefit from the standard deduction and I do not care that much about the tax treaty benefit. Can I just add the 3000 income on the 1042s as other income and do not claim any benefit in order to be able to e file as resident alien? 

Really appreciate your help!

[DaveF1006 · Accepted solution]

Yes, you can add your 1042 income as other income. When the program asks for an explanation, you would say 1042 foreign income. This shouldn't ruin your resident alien status because you are reporting your worldwide income.