2019 return Head of Household filing status with nonresident alien spouse

[The Real Halloween]

Tax Payer’s spouse is a nonresident alien at any time during the tax year, she did not make an election to be treated as a resident alien. Can Tax Payer claim head of household filing status? Form 1040 instructions p 11 seems to suggest that the non-resident alien spouse needs to make an election to be treated as a resident alien in order for Tax Payer to file Head of Household filing status.

Tax Payer also has a new born child born in January 2019.

Appreciate your advice and comment. Thanks.

[TaxGuyBill · Accepted solution]

That seems to be a glaring error in the 2019 Instructions.

I think it should say that the spouse does NOT elect to be treated as a Resident Alien.

Here is the 2018 Instructions that show it correctly.

https://www.irs.gov/pub/irs-prior/i1040gi--2018.pdf#page=16

So yes, the client can claim Head of Household if the spouse is a Nonresident Alien (that does NOT elect to be treated as a Resident) and meets the other criteria for Head of Household.