I am a born citizen, but my husband is not. He has know SS #. I was told we could apply for a ITIN number for him. He has not worked this year due to a bad car accident and I need to claim him on my taxes because we are in the process of getting his green card and a tax return helps prove marriage. We have 2 children. My question is I know people who use the ITIN number do not qaulify for the EIC, but will I if I put him on my taxes? Should I claime him as a dependent or file jointley even though he has know income. Also can I apply for his ITIN number ahead of time? Thank you.

Get ITIN and file as Married Filing Jointly. Your husband is treated as treated as resident for the tax purposes. You must include his world wide income. You can get EIC.
For EIC, the AGI limit without qualifying child for Married Filing Jointly is $14,120, and for Single (over 25) is $12,120.

MukatA:

Sorry, in this case you are wrong.

If either parent has an ITIN, they are NOT eligible for the EIC. That is clearly covered in the EIC chapter of IRS Pub 17.

Confused:

I answered your email earlier today. Did you get it?

Yes, on the joint return you can get EIC only if your husband also has SSN.

Agreed!

Was there a change on this particular law for the 2011 tax refund? I got a rejection letter for EIC since my wife has an ITIN number

No, the law still applies.

Check this out and let me know if I have a way around this in my situation. I just lost $3,400.00 because of this.
http://www.irs.gov/taxtopics/tc601.html
Thanks

And, will there be a difference in my case if I files married separate not joined tax refund? Will I still lose the EIC?

There is no work around. If the return has an ITIN ANYWHERE on the forms (taxpayer, spouse, dependent), it is INELIGIBLE for the Earned Income Credit.

If you file Married Filing Separately, you are automatically ineligible for the EIC.