The wife is a US permanent resident, and the husband is a nonresident. They have a US citizen child. If I understand correctly, they don't qualify for the Earned Income Credit because the husband doesn't have an SSN valid for employment, nor can the wife claim the EIC by herself as head of household because she is married to a nonresident alien. Is that correct?
Also, when the husband does become a permanent resident, they can amend their returns (up to three years back) to claim the EIC. Is that also correct?
Yes. The ony way to obtain the EIC in your scenario is on a joint return with the election attached to have the husband treated as a RA and the husband has a valid (eligible for employment) social security number.
Yes. However, the way the law is worded I would say that the amended return for an open year (within 3 years of the due date), must have the election to be treated as an RA attached to the return.
No. It appears that for a joint return, only one of the taxpayer or spouse need qualify (per the flowchart in the 1040 instructions).
No. His residency status is determined for each year and doesn't retroactively change.
Aside (as the requirement for EIC is U.S. residency, not citizenship, of the child): If neither of them is a U.S. citizen, how do they have a U.S. citizen child? Being born in the U.S. is only HALF of the requirement for citizenship under the 14th Amendment, and as neither of the parents are themselves citizens, the second half of the requirement was not met. The child is an alien, just like his parents.
I don't know where in the 1040 instructions you are looking but on page
45 the test question reads: Do you, and your spouse if filing a joint return, have a social security number that allows you to work or is valid for EIC purposes (see page 48)?
Below are the relevant code sections for the EIC:
Sec. 32(c)(1)
(E) Identification number requirement No credit shall be allowed under this section to an eligible individual who does not include on the return of tax for the taxable year? (i) such individual?s taxpayer identification number, and (ii) if the individual is married (within the meaning of section 7703), the taxpayer identification number of such individual?s spouse.
Sec. 32(m)
(m) Identification numbers Solely for purposes of subsections (c)(1)(E) and (c)(3)(D), a taxpayer identification number means a social security number issued to an individual by the Social Security Administration (other than a social security number issued pursuant to clause (II) (or that portion of clause (III) that relates to clause (II)) of section 205(c)(2)(B)(i) of the Social Security Act).
When someone is able to make an election to be treated as a resident alien, that election period remains alive as long as the tax year is an open year. If a person can not make an election (e.g., not married to a US citizen) then obtaining residency status or a valid SSN in a later year can not change the status in a prior year.
You need to read up on the current debate about why this country provides citizenship to any child born on its shores. There is no requirement for either parent to be a US citizen.
Here's the FAQ from US Citizenship & Immigration Services
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How can I become a U.S. citizen? You may become a U.S. citizen (1) by birth or (2) through naturalization.
Who is born a U.S. citizen? Generally, people are born U.S. citizens if they are born in the United States or if they are born to U.S. citizens:
(1) If you were born in the United States:
Normally you were a U.S. citizen at birth.1 (Including, in most cases, the Commonwealth of Puerto Rico, the territories of Guam and the U.S. Virgin Islands, and after November 4,
1986, the Commonwealth of the Northern Mariana Islands)
The footnote "1" refers to an exception for persons who were born not subject to the jurisdiction of the United States, such as children of foreign diplomats.
I was looking 3 questions later: Were you or your spouse a non-resident alien ....? That question, upon "Yes", refers to page 51, which then returns the couple to the chart if the filing status is MFJ. This means that one spouse may be a NRA as long as the other isn't.
If she does NOT file a joint return, she makes it past this question, and has a valid SSN, and therefore can pass both question #2 and #5, thus claiming the credit.
Absoultely WRONG according to the U.S. Constitution. The Congressional committee report and discussion in 1866 makes it clear: The child of two aliens is born an alien. They need NOT be diplomats. A statute may not override the Constitution.
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Generally, people born in the U.S. are born to at least one citizen parent.
What you have cited is the common misinterpretation. The footnote is wrong in limiting not "subject to the jurisdiction" to just the children of diplomats. Congress said otherwise 145 years ago.
This has been discussed on groups such as "us.politics", and "alt.politics.usa.constitution" for the past 2.5 years ad naseum.
She would have to be able to file as Head of Household. Married separate filers are not eligible for the EIC. However, the question asked specifically referred to a joint return.
I don't wish to turn this forum into a debate on citizenship. Suffice to say that the federal courts have already interpreted the jurisdiction clause in the 14th amendment to mean that a child born on US soil is under US jurisdiction and by birthright a US citizen unless the child's parents are foreign diplomats. That is why USCIS issues birth certificates and citizenship to children born on US soil. No court has ever invalidated that. That is also why certain groups are trying to get a constitutional amendment passed so that citizenship is not granted based on birthright.
Absolutely WRONG according to the Constitution. The 14th Amendment says, among other, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Where is the requirement that one parent be a citizen?
Generally people who are convicted of tax evasion have brown eyes. What does that have to do with anything?
Well, the 14th Amendment was passed 143 years ago, so it supercedes anything to the contrary that occurred before that.
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