ITIN for Kid staying less than 180 days in US

[sachdevhiraj88]

I am staying on H1B visa since Jan 2015. My Spouse and Kid stayed with me for 2 months on H4 then they went back. They came back again in Dec 2015 and my wife returned on H1B and kid on H4. My wife now has SSN but I have question regarding my kid's ITIN. Since his physical stay in US is less than 180 days, can I apply ITIN for him and claim child tax credit?

[bine22]

when in December did they come back?

[sachdevhiraj88]

They came on December 4.

[bine22 · Accepted solution]

your child does not meet the substantial presence test and also not the requirements for the first year choice, so you wont be able to claim him/her for 2015. You can apply for an ITIN  next year, if he/she meets the SPT.

[shekhar123]

Hello,

Similar query.My kid was with me from 3rd July 2019 for the complete year.Can I file him as dependent?

It comes to 182 days.

[DavidS127]

It depends, and I am assuming you are a resident alien for U.S. tax purposes.  To be a dependent as your qualifying child your child generally must live with you for more than half the year and you miss that test by 1 day.  But, there is an exception to that rule if your son meets the test for a "child of....parents who live apart" a this IRS Publication 501 link. So, if your son lived with his other parent for at least one day, you may meet the test.  Be sure to check the other requirements and limitations if you use this exception.

Also, if you are married, note that you can treat your nonresident spouse as a resident for tax purposes by making the choice described in IRS P..., designating your spouse as a resident in TurboTax, and attaching a required statement to your mailed (not-efiled) tax return.