The Substantial Presence Test
May 08, 2017
By Coleman Jackson, Attorney, CPA
An Immigrant is Considered a Resident of the U.S. for Federal Tax Purposes When They Meet this Test
Except for certain exempt individuals, such as teachers, trainees, students, professional athletes and certain foreign government individuals, immigrants physically in the United States who meet the substantial presence test as depicted in the diagram below are considered an U.S. Resident for federal tax purposes.
| (a) | (b) | (c) | (d) |
| Year | Number of Days Immigrant Physically Present in United States During Period | Multiplier | Substantial Present Days (Multiply (b) times (c)) |
| Current Year | 1.00 | ||
| First Prior Year | .333 | ||
| Second Prior Year | .167 | ||
| Total Days Immigrant Present in U.S. (add column (d) | |||
It is critical to determine the tax status of immigrants because immigrants who are Green Card Holders and those who meet the substantial presence test are taxed just like United States Citizens. United States Citizens are taxed on their world wide income no matter where the income is earned. Generally speaking, immigrants meet the substantial presence test when all of the following statements are true:
- The immigrant was physically present in the United States for at least 31 days during the current calendar year; and
- The immigrant was physically present in the United States for 183 days during the three year period for which residency is being determined.
In the event that both of these conditions are met and none of the exemptions apply, the immigrant is treated as a Resident of the United States for tax purposes. But as is typical in American law, there are exceptions even if an immigrant meets the substantial presence test. The ‘closer connection to a foreign country exception’ is just such an exception. Also what constitutes a day in the United States can be affected by whether the immigrant is a regular commuter from Mexico or Canada, or whether the immigrant is in transit between two foreign points outside of the U.S., or simply whether the immigrant is in the U.S. in one of the ‘exempt person statuses’ that we mentioned at the top of this blog. Even the medical condition of the immigrant could impact whether time in the United States is counted toward the term ‘day’ in the United States for the substantial presence test. Any time in the United States due to a medical condition that arose while the immigrant was in the U.S. is not counted in the substantial presence test calculus.
This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.
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