The term "exempt individual" does not refer to someone exempt from the U.S. tax, but rather to someone who does not count their days of physical presence in the United States in determining whether they are a U.S. resident under the Substantial Presence Test. A "foreign government-related individual" is one specific subcategory of exempt individuals. The rules applicable to this subcategory are listed below.
A foreign government-related individual is an individual (or a member of the individual's immediate family) who is temporarily present in the United States:
- As a full-time employee of an international organization,
- By reason of diplomatic status, or
- By reason of a visa (other than a visa that grants lawful permanent residence) that the Secretary of the Treasury determines represents full-time diplomatic or consular status.
A foreign government-related individual is considered temporarily present in the United States regardless of the actual amount of time present in the United States.
Full-time Employee of International Organization
The term "international organization" means a public international organization that the President of the United States has designated by Executive Order as being entitled to the privileges, exemptions, and immunities provided under the Internationals Organizations Immunities Act (22 U.S.C. 288-288f). An individual is a full-time employee if his or her work schedule meets the organization's standard full-time work schedule.
Diplomatic or Consular Status
An individual is considered to have full-time diplomatic or consular status if he or she:
- Has been accredited by a foreign government that is recognized by the United States,
- Intends to engage primarily in official activities for the foreign government while in the United States, and
- Has been recognized by the President, Secretary of State, or a consular officer as being entitled to that status.
Note: Generally, an individual who is present in the United States under an “A” or “G” class visa is considered a foreign government-related individual (with full-time diplomatic or consular status). None of their days count for the purposes of the substantial presence test.
Caution: An individual present in the United States under an "A-3" or "G-5" visa as a personal employee, attendant, or domestic worker (i.e., in a household staff position) for either a foreign government or international organization official is not considered a foreign government-related individual and must count all their days of presence in the United States for purposes of the substantial presence test.
Members of the Immediate Family
Members of the immediate family include the individual's spouse and unmarried children (whether by blood or adoption) but only if the spouse's or unmarried children's visa statuses are derived from and are dependent on the exempt individual's visa classification. Unmarried children are included only if they:
- Are under 21 years of age,
- Reside regularly in the exempt individual's household, and
- Are not members of another household.
The immediate family of an exempt individual does not include attendants, servants, or personal employees.