I'm on H1B visa and my spouse is on H4 visa. We both came to US on Sep 2022 & We have been in USA for 113 days in 2022 and 0 days in 2021 & 2020. Can we file Married filing jointly as Resident Alien, with 6013(g) or 6013(h) election form and apply ITIN for my Spouse(as completed 180 days in US)? or only option is to File Married filing Separately(Resident or Non Res) for myself and apply ITIN next Year for my spouse next year. Appreciate your help.
You can do that under the IRC 7701(b)(4) (first year election) - if you qualify.
Beware that you'll both be taxed on your worldwide income for the whole year under the both first year election and the Sec. 6013 election. Read more here. Just the first year election allows you to file a dual status return, but as MFS.