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Guide to determine residential status of non US citizen under Internal Revenue Code

November 16, 2017

Nonresident vs Resident Alien

If you are a not a citizen of the United States you would be considered a nonresident alien,unless you meet one of the two tests (Green Card Test and Substantial Presence Test). If you do meet one of the tests, you may still be considered a nonresident alien from an income tax treaty.

  • Green Card Test - If the U.S. Citizenship and Immigration Services (USCIS) has issued you an alien registration card (green card) and you are a lawful permanent resident of the U.S. and took no steps to be treated as a resident of a foreign country through an income tax treaty, then generally you would be considered a U.S. resident for tax purposes.
  • Substantial Presence Test - You are considered a U.S. resident if you were physically present in the U.S. for at least:
  1.  31 days during 2016 AND
  2.  183 days during the period 2016, 2015, and 2014. The 183 days are calculated by the sum of the days from 2016, 1/3 of the days from 2015, and 1/6 of the days from 2014.

Days physically present is considered any day that you were physically present in the U.S. at any time of the day, do not include:

  1. Days you regularly commute to work in the U.S. from a residence in Mexico or Canada
  2. Days in the U.S. less than 24 hours if you were in transit between places outside the U.S.
  3. Days in the U.S. as a crew of a foreign vessel
  4. Days you intend, but are unable, to leave the U.S. because of a medical condition that arose while you were in the U.S. (see Form 8843)
  5. Days you are an exempt individual (see Form 8843)

Exempt Individuals

a. Foreign government-related individual

b. Teacher or trainee who is temporarily present under a "J" or "Q" visa

c. Student who is temporarily present under an "F," "J," "M," or "Q" visa

d. Professional athlete who is temporarily in the U.S. to compete in a charitable sports event

Closer Connection to Foreign Country - if you otherwise meet the substantial presence test, you can be treated as a nonresident alien if you:

a. Are present in the U.S. for less than 183 days during the year,

b. Maintain a tax home in a foreign country during the year, AND

c. Have a closer connection during the year to one foreign country in which you have a tax home than to the U.S. (see Form 8840)

Tax Treaties - If you are a U.S. resident under one of these tests, you still may be considered a nonresident if you qualify as a resident of a treaty country within the meaning of an income tax treaty between the U.S. and that country (see IRS Publication 901)

Source -IRS Publication 519- U.S. Tax Guide for Aliens