Tax Advice for Households with a Non-US Citizen Spouse
Advice from Laurel Scott:
Three important tax tips for couples where one is an unlawfully present immigrant and the other is a US citizen:
1. "Head of Household" is for single parents. You can only claim to be "Head of Household" if you did not reside with your spouse for at least half the tax year. if your spouse was in another country for at least six months, then you can claim to be Head of Household. If you lived with your spouse in the US, you cannot file as Head of Household even if your spouse does not have a valid social security number. You must file as either Married, Filing Jointly or Married, Filing Separately.
2. If you are filing either as Married, Filing Jointly or Married, Filing Separately and your spouse does not have a valid social security number, you cannot take the Earned Income Credit. Once your spouse 'legalizes", you can retroactively get the Earned Income Credit for some of the previous years even when he/she wasn't lawfully present. But you can't file the request for the credit retroactively until after he/she 'legalizes'.
3. You can only claim other people's children (e.g. nieces, nephews) or adults (e.g. sibling, parent) as dependents on your tax return if either (a) you live with the person, or (b) you provide at least half that person's support. Even where you provide half that person's support, the person must be a US citizen or national or lawful permanent resident OR must reside in the US, Mexico or Canada (due to NAFTA). So, if you are sending money to your niece and nephew in Mexico that is more than half their support, you can claim them even if they aren't US citizens or permanent residents. But you cannot do the same for your niece and nephew in Guatemala. If you reside with the children and the parents of the children, you can only claim them if you make more money than their parents.
ALWAYS USE AN EXPERIENCED, LICENSED TAX PROFESSIONAL FOR ASSISTANCE WITH YOUR TAXES. A LOT OF THEM DO NOT KNOW THE THREE THINGS I JUST WROTE ABOVE.
I would then add that if a spouse is not eligible for a Social Security Number, s/he is eligible for an Individual Tax ID Number (ITIN). You must apply for an ITIN when you file your taxes, and you must apply for it on paper (meaning you cannot file an electronic return). If your tax preparer does not know what a form W-7 is, find a new tax preparer - one who is experienced with non-citizen filers.