A non-resident alien is a foreign national who is in the United States, but is not subject to certain U.S. taxes because they are not considered residents.  Although they aren’t subject to taxes, non-resident aliens are also limited in terms of their rights and privileges, such as the right to vote, as well as certain provisions regarding gifts

How is Residency Determined for Aliens in the U.S.?

A person is considered a non-resident alien based on two different status tests:

  • “Substantial Presence”:  An alien is only considered a resident if they have demonstrated “substantial presence” in the U.S.  The calculations involved in determining substantial presence involve very complex calculations (for example, the alien was in the U.S. 31 days of the current year, 183 days in the last 3-year period, etc.)  These usually require the assistance of a legal professional or lawyer when dealing with such calculations. 
  • “Green Card test”:  If the alien is a green card holder (permanent visa), they are automatically considered to be a resident alien, at any given time of the calendar year.  Thus, the issuance of an alien registration card (green card) automatically makes the alien a “resident” and subject to taxes

Residency status can be changed or terminated if the alien abandons their status voluntarily by moving to a different country and failing to renew their visa status.  Residency may also be terminated through other immigration law procedures such as removal. 

Why is it Important to Understand About Alien Residency?

It’s important to know whether you or a relative are considered a non-resident or a resident.  The main consideration is tax purposes.  If you fail to pay the required tax amounts when you are required to do so, it could lead to legal consequences (even criminal charges in some cases).  This could also affect the person’s visa status, and it can hinder their chances at obtaining permanent resident status or citizenship in the future. 

Do I Need to Hire a Lawyer if I Have Questions Involving Non-Resident Alien Status?

Residency laws are very important- one should pay attention to them, especially if they are a foreign national seeking permanent residence.  These laws are also important for persons doing business temporarily in the U.S., as such laws could affect their tax requirements for their business. You may wish to hire an immigration lawyer for advice if you need help with non-resident alien matters.  Your attorney can provide you with guidance and can represent you in court if you need to appear before a judge or immigration panel.