If you are an alien, you will be considered a nonresident unless you fulfill one of two tests:
- Substantial Presence Test
- Green Card Test
What Is the Substantial Presence Test?
You will be considered a U.S. resident for tax purposes if you meet the Substantial Presence Test for the calendar year. To meet this test, you must be physically present in the United States for at least:
- 31 days during the current year, and
- 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
o All the days you were present in the current year, and
o 1/3 of the days you were present in the first year before the current year, and
o 1/6 of the days you were present in the second year before the current year.
Example: You were physically present in the United States on 120 days in each of the years 2002, 2003, and 2004. To determine if you meet the substantial presence test for 2004, count the full 120 days of presence in 2004, 40 days in 2003 (1/3 of 120), and 20 days in 2002 (1/6 of 120). Since the total for the 3-year period is 180 days, you are not considered a resident under the substantial presence test for 2001.
Who Is Considered an Exempt Individual?
Remember not to count days for which you are an exempt individual. To be "exempt" does not mean that you are exempt for paying taxes. What "exempt individual" refers to is anyone in the following categories, as they are exempt from counting their days of presence in the U.S:
- Someone temporarily in the United States as a foreign government-related person;
- A teacher or trainee temporarily present in the United States under a "J " or "Q " visa, who substantially complies with the requirements of the visa;
- A student who is temporarily present in the country while holding an "F, " "J, " "M, " or "Q" visa and substantially complies with the requirements of the visa; and
- Special categories.
What Is the Green Card Test?
You satisfy the green card test if you are a lawful permanent resident of the United States at any time during the calendar year. You are a lawful permanent resident of the United States if you have been given the privilege of residing permanently in the United States as an immigrant. You generally have this status if the U.S. Citizenship and Immigration Service has issued you an alien registration card, also known as a "green card." You will continue to satisfy this test unless the status is taken away from you, or your status is administratively, or judicially, determined to have been abandoned or revoked.
What If I Have Issues with My Alien Status Affecting My Taxes?
International tax is an extremely complex area of the law, especially when coupled with immigration issues. A tax attorney can help you understand how tax laws apply to your unique situation as an alien or permanent resident.
Seeking Legal Help
If you have legal issues concerning your status as a nonresident in the United States, you should consult an experienced immigration attorney for assistance.