EITC MFS - Taxpayer is resident alien - spouse is non-resident alien

[treedco]

Client is filing Married filing separate.  She is a resident alien for all year.  Spouse is non-resident alien for all of year.  Does residency status of spouse affect her getting the earned income tax crediit? or is his residentcy irrelevant since she is filing married filing separate?

[BobKamman]

Are you sure she doesn't qualify for Head of Household?

IRS has information about this that is so important  they shout it. 

 https://www.irs.gov/newsroom/international-taxpayers-filing-status-if-married-to-a-nonresident-alien... 

IF YOU DO NOT TREAT YOUR NONRESIDENT ALIEN SPOUSE AS A TAX RESIDENT, YOU CANNOT USE THE MARRIED FILING JOINTLY STATUS.

HOWEVER, YOU MAY QUALIFY FOR ANOTHER FILING STATUS.

OPTION NUMBER TWO IS TO FILE AS HEAD OF HOUSEHOLD.

IN ORDER TO QUALIFY FOR THIS STATUS, YOU MUST HAVE PAID MORE THAN HALF THE COST OF KEEPING UP YOUR HOME FOR THE YEAR.

IN ADDITION, A QUALIFYING PERSON MUST HAVE LIVED WITH YOU IN YOUR HOME FOR MORE THAN HALF OF THE YEAR.

TO FIND OUT IF YOU QUALIFY, USE WORKSHEET 1, “COST OF KEEPING UP A HOME,” IN PUBLICATION 501 TO DETERMINE WHETHER YOU PAID MORE THAN HALF OF THE COST OF KEEPING UP YOUR HOME.

YOU CAN USE TABLE FOUR IN PUBLICATION 501 TO SEE IF YOU ARE A QUALIFYING PERSON.

ANY PERSON NOT DESCRIBED IN TABLE FOUR IS NOT A QUALIFYING PERSON.

BUT IF BOTH CONDITIONS WE JUST DISCUSSED DO EXIST.

THAT IS, YOU MUST HAVE PAID MORE THAN HALF THE COST OF KEEPING UP YOUR HOME FOR THE YEAR AND A QUALIFYING PERSON MUST HAVE LIVED WITH YOU IN YOUR HOME FOR MORE THAN HALF OF THE YEAR.

THEN, YOU MAY CHOOSE THE HEAD OF HOUSEHOLD FILING STATUS.

FOR MORE INFORMATION ON THE DIFFERENT FILING STATUSES, PLEASE SEE PUBLICATION 501.

[treedco]

I feel HOH would be a hard sell for her.  She lives in a friend's home.  The person is un-related to her children.  That person is filing HOH with her children.  My main concern is that she is eligible for EIC since her husband is a non-resident.  On the EIC info page it says that he needs to be a resident alien or a cititzen to qualify for the EIC if they file together, but I do not see anything if they file separate.