Spouse with green card not in the US for more than 6 months

[Bsto]

My husband and I are green card holders, he had medical issues that kept him outside country for long period of time and finally in November of 2021 he was able to come back in US with SB-1 visa, he has never officially lost his status and he has SSN. He has his Green Card since 2012 and was present in US at the end of 2021. He has only Social Security income from the foreign country and no other income.

I was out of the country for just 3 months during the summer, I live here and am considered resident. We have no other dependents.

I have entered all our income from US and outside of US, but am I able to claim EIC - How do I answer the "Did X and Y live in the U.S. for more than six months in 2021?", since I did, but he has been here since Oct 24 till now, which is not 6 months?

Thank you so much!!! Any help would be much appreciated

[LeonardS]

In order to claim the Earned Income Credit (EIC), you must have earned income.  Earned income is from wages reported on a W-2 or self-employment from Schedule C.  From your post, it appears that your husband did not have any earned income and you did not indicate that you had any income.  You will answer the questions to accurately report the individual time spent in the US for your and your husband.  TurboTax will use your information you to determine if you qualify for the EIC.

[Bsto]

I have US income and have claimed it in the TurboTax software, as well as any foreign income including my husband's Social Security Income.

The problem is the question in turbo tax is about both of us in the same question, it's not 2 individual questions - I have been here for more than 6 moths so for me the answer is "Yes", for my husband is a "No", but the question is about both of us -"Did X and Y live in the U.S. for more than six months in 2021?", so choosing either answer is not 100% accurate since our situations are different.

I saw that the IRS guide states you are a resident of the United States for tax purposes if you meet either the green card test or the substantial presence test for the calendar year (January 1 – December 31). There is also IRS guide that states "If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a U.S. resident within the meaning of Internal Revenue Code (IRC) section 7701(b)(1)(A) and the other is not, you can choose to treat the nonresident spouse as a U.S. resident for tax purposes."

I am US resident within the meaning of Internal Revenue Code (IRC), but I am not sure if my husband is considered the same as a green card holder since he doesn't meet the substantial presence test.

In this case can I answer the question "Did X and Y live in the U.S. for more than six months in 2021?" with yes, so we can claim the EIC?

Thank you!

[LeonardS]

While there is a specific language regarding a child having to be in the US for more than 6 months there is no specific language for your situation.  From your post, it appears that you always maintained your home in the US except for a short vacation and long-term medical care outside the US.  As there is no specific guidance for your situation you may want to answer yes and have supporting documentation in your records as to the reason for being outside the US.