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The Green Card Test and the Substantial Presence Test

An alien may become a resident alien by passing either the green card test or the substantial presence test as explained below.

Green Card Test

Are you an "immigrant" (Lawful Permanent Resident) of the United States under the immigration laws of the United States? Aliens who are Immigrants are Resident Aliens of the United States for tax purposes, under the condition that they spend at least one day in the United States.

If you answered yes to the above question, you do not need to proceed to the questions below.

Substantial Presence Test

You must pass both the 31-day and 183-day tests.

  • 31 day test: Were you present in United States 31 days during current year?
  • 183 day test:

A. Current year days in United States x 1 =_____days

B. First preceding year days in United States x 1/3 =_____days

C. Second preceding year days in United States x 1/6 =_____days

D. Total Days in United States =_____days (add lines A, B, and C)

If line D equals or exceeds 183 days, you have passed the183-day test.

Exceptions: Do not count days of presence in the U.S. during which:

  • you are a commuter from a residence in Canada or Mexico;
  • you are in the U.S. less than 24 hours in transit;
  • you are unable to leave the U.S. due to a medical condition that developed in the U.S.;
  • you are an exempt individual;
  • you are a regular member of the crew of a foreign vessel traveling between the U.S. and a foreign country or a possession of the U.S. (unless you are otherwise engaged in conducting a trade or business in the U.S.)

Definition of Exempt Individual

  • Foreign Government Related Individual
    • Employee of Foreign Government
    • Employee of International Organization
    • Usually on A or G visa;
  • Teacher, Professor, Trainee, Researcher on J or Q visa;
    • Does NOT include students on J or Q visas;
    • Does include any alien on a J or Q visa who is not a student (physicians, au pairs, summer camp workers, etc.);
    • must wait 2 years before counting 183 days; however if the J or Q alien has been present in the U.S. during any part of 2 of the prior 6 calendar years in F, J, M, or Q status, then he is not an exempt individual for the current year, and he must count days in the current year toward the substantial presence test;
    • Quality of being an Exempt Individual applies also to spouse and child on J-2 or Q-3 visa;
  • Student on F, J, M or Q visa;
    • must wait 5 calendar years before counting 183 days;
    • the 5 calendar years need not be consecutive; and once a cumulative total of 5 calendar years is reached during the student’s lifetime after 1984 he may never be an exempt individual as a student ever again during his lifetime;
    • Quality of being an Exempt Individual applies also to spouse and child on F-2, J-2, M-2, or Q-3 visa;
  • Professional athlete temporarily present in United States to compete in a CHARITABLE sports event.

Exceptions to the Substantial Presence Test

Closer Connection Exception for Foreign Students only

Answer the following questions:

 

  • Do you intend to reside permanently in the United States?
  • Have you taken any steps to change your U.S. immigration status toward permanent residency?
  • Have you substantially complied with the United States immigration laws for your student nonimmigrant status during your stay in the United States?
  • During your stay in the United States, have you maintained a closer connection with a foreign country than with the United States?

If you answered "NO" to the first two questions above, and "YES" to the last two questions above, then you have a basis for claiming you are still a nonresident alien, even though you have passed the substantial presence test. To claim the exception for students on an income tax return, a student should attach Form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition to his form 1040NR or 1040NR-EZ. Refer to The Closer Connection Exception to the Substantial Presence Test for Foreign Students for further discussion.

Closer Connection Exception for All Aliens

Answer the following questions.

 

  • Were you present in the U.S. fewer than 183 days in the current year?
  • Is your Tax Home in a Foreign Country? (See Revenue Ruling 93-86)
  • Do you maintain a closer connection to that country than to the United States? (See Treas. Reg. 301.7701(b)-2(d)).
  • During your current year in the United States, have you taken any steps to change your United States immigration status to permanent residency, or have you taken any steps to adjust your immigration status in the United States?

If you answered "YES" to the first three questions above, and "NO" to the last question above, then you have a basis for claiming that you are still a Nonresident Alien, even though you have passed the Substantial Presence Test. You should attach Form 8840, Closer Connection Exception Statement for Aliens to your individual income tax return to claim this exception. If you are not required to file a tax return, file Form 8840 by itself with the IRS.

References/Related Topics

Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury Regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury Regulations, or other official tax guidance, visit the Tax Code, Regulations, and Official Guidance page. To access any Tax Court case opinions issued after September 24, 1995, visit the Opinions Search page of the United States Tax Court.

Page Last Reviewed or Updated: 24-Mar-2014