Hello,

I am a resident alien with a non-resident alien spouse (she has no US income). We also have a son who was born in 2007 in the US. I am not treating my wife as a resident alien, and therefore, I am eligible to claim Head of Household Status.

My question is, do I also need to file an 8843 in her name? If so, do I send it with my 1040 and her W7 application? Or do I send it separately? I'm sending in a W7 in her name in order to get an ITIN for her and so I can claim a personal exemption for her.

Thanks,

ASN

You cannot claim Head of Household status. You can file joint return as residents and claim exemption of your child. You will attach W7 with the tax return.

We went over this already in thread: https://www.askmehelpdesk.com/taxes/ny-state-taxes-201-head-household-itin-needed-spouse-204906.html

Since I am not treating my wife as a resident alien, I am considered unmarried and can claim Head of Household Status. My child (who lives with me) is my qualifying dependent.
I can still take a personal exemption for my spouse even if I am considered unmarried for head of household puposes. According to Publication 501 (Page 9):

"Head of household. If you qualify for head of household filing status because you are considered unmarried, you can claim an exemption for your spouse if the conditions described in the preceding paragraph are satisfied.

To claim the exemption for your spouse, check the box on line 6b of Form 1040 or Form 1040A and enter the name of your spouse in the space to the right of the box. Enter the SSN or ITIN of your spouse in the space provided at the top of Form 1040 or Form 1040A."

As long as the spouse had no income, is not filing a return, and cannot be claimed as a dependent, a personal exemption can be taken.

My question pertains to having to include an 8843 for my wife since she is not required to file any tax forms.

ASN

I think that you should call IRS for clarification.
Normally Head of Household means you are unmarried or considered unmarried. In that case, your spouse must take care of her own return that is Form 8843 cannot be filed with your tax return. Also, how can a head of household claim exemption of the spouse?

Page 9 of Publication 501 (section entitled Your Spouse's Exemption) clearly states that even if you are considered unmarried for head of household puposes, you can claim a personal exemption for your spouse (this includes nonresident alien spouses as well). They just have to satisfy certain conditions (ie not make any income, not have to file a tax return, and not be eligible to be claimed as a dependent by anyone else).

P.S I confirmed this with Turbo Tax Deluxe software.