A foreign person will be considered a U.S. Resident for Tax Purposes if he/she meets the Substantial Presence Test for the calendar year. The test must be applied each calendar year that the individual is in the U.S.
To meet the test, a foreign person must:
- Be physically present in the U.S. for at least 31 days during the current year, and
- Be physically present 183 days during the 3 year period that included the current year and the 2 years immediately before that, counting:
- All the days the individual was present in the current year, and
- 1/3 of the days the individual was present in the 1st year before the current year, and
- 1/6 of the days the individual was present in the 2nd year before the current year
There are exceptions to the above rule for F1 students, J1 students and J non-students. F1 and J1 student visa holders may exempt 5 calendar years of presence for purposes of the substantial presence test. J1 non-student visa holders are able to have 2 exempt calendar years of presence for purposes of the substantial presence test. The substantial presence test will look at prior visits and have a sliding scale analysis on the last 6 calendar years.