- All of the days you were present in the current year,
- One-third of the days you were present in the first year before the current year, and
- One-sixth of the days you were present in the second year before the current year.
For purposes of the substantial presence test, the term United States doesn't include U.S. territories or U.S. airspace. The United States includes the following areas:
- All 50 states and the District of Columbia,
- The territorial waters of the United States, and
- The seabed and subsoil of those submarine areas that are adjacent to U.S. territorial waters and over which the United States has exclusive rights under international law to explore and exploit natural resources.
- Days of presence in the United States - Don't count the following days of presence in the United States for the substantial presence test:
- Days you commute to work in the United States from a residence in Canada or Mexico if you regularly commute from Canada or Mexico. You commute regularly if you commute to work in the United States on more than 75% of the workdays during your working period in the current year. Do not count the days you commute to work in the United States from your residence in Canada or Mexico if you regularly commute from Canada or Mexico.
- Days you're in the United States for less than 24 hours when you're in transit between two places outside the United States, unless you attend a business meeting while in the United States.
- Days you're in the United States as a crew member of a foreign vessel engaged in transportation between the United States and a foreign country or a U.S. territory. However, this exception doesn't apply if you otherwise engage in any trade or business in the United States on those days.
- Days you intended to leave but couldn't leave the United States because of a medical condition or medical problem that arose while you were in the United States. Whether you intended to leave the United States on a particular day is determined based on all the facts and circumstances.
- Days you're an exempt individual.
- Exempt individuals - You're an exempt individual, which means your days of presence in the United States are not counted for purposes of the substantial presence test, if you fall into any of the following categories:
- An individual temporarily present in the United States as a foreign government-related individual under an A or G visa. However, this category doesn't include household staff of a foreign government-related individual present in the United States under an A-3 or G-5 visa
- A teacher or trainee temporarily present in the United States under a J or Q visa, who substantially complies with the requirements of the visa. Generally, you won't be an exempt individual as a teacher or trainee if you were exempt as a teacher, trainee, or student for any part of 2 of the 6 preceding calendar years; however, you still may be treated as an exempt individual if all of the following conditions are met:
- You were exempt as a teacher, trainee, or student for any part of 3 (or fewer) of the 6 preceding calendar years,
- A foreign employer paid all of your compensation during the current year,
- You were present in the United States as a teacher or trainee in any of the prior 6 years, and
- A foreign employer paid all of your compensation during each of the preceding 6 years you were present in the United States as a teacher or trainee.
- A student temporarily present in the United States under an F, J, M, or Q visa, who substantially complies with the requirements of the visa. You won't be an exempt individual as a student in the current year if you've been exempt as a teacher, trainee, or student for any part of more than 5 calendar years unless you meet both of the following requirements:
- You establish that you don't intend to reside permanently in the United States; and
- You have substantially complied with the requirements of your visa.
- A professional athlete temporarily present in the United States to compete in a charitable sports event.
Even if you meet the substantial presence test, you may still be treated as a nonresident alien if you're present in the United States for fewer than 183 days during the current calendar year, you maintain a tax home in a foreign country during the year, you have a closer connection to that country than to the United States, and you timely file a Form 8840, Closer Connection Exception Statement for Aliens claiming you have a closer connection to a foreign country or countries. You can't claim a closer connection to a foreign country if you've applied, or took other steps during the year, to change your status to that of a lawful permanent resident of the United States, or you have an application pending for lawful permanent resident status (green card). Sometimes, a tax treaty between the United States and another country will provide special rules for determining residency for purposes of the treaty. If you claim to be solely a resident of a tax treaty jurisdiction, file Form 8833, Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b). See Publication 519, U.S. Tax Guide for Aliens for more information about the substantial presence test.
Choosing resident alien status
Even if you don't meet the green card test or substantial presence test for the current year (for example, 2023), or the prior year (2022), and you did not choose to be treated as a U.S. resident for part of the prior year (2022), but you meet the substantial presence test in the following year (2024), you can choose to be treated as a U.S. resident alien for part of the current year (2023) and be taxed as a dual-status alien for the current year (2023) by making the First-Year Election or, if you are a nonresident alien married to a U.S. citizen or resident alien, and you and your spouse make an election for you to be treated as a resident alien for the entire calendar year and all subsequent years until terminated. See Chapter 1 of Publication 519 PDF for more information.
Dual-status tax year
If your status changes during the year from resident alien to nonresident alien or vice versa, you generally have a dual-status tax year. This usually happens in the year when you arrive in or depart from the United States. Your tax on the income for the two periods will differ under the provisions of the laws that apply to each period. See Publication 519 for more information about dual-status aliens.
Forms to file
If you're a nonresident alien who is engaged in a trade or business in the United States, you must file a return and report all of your income from U.S. sources, both from the trade or business and any U.S. source non-effectively connected income for which amounts have been withheld. If you're not engaged in a U.S. trade or business and have any U.S. source income on which the amount of tax withheld didn't fully satisfy the tax due, or you seek to claim a refund of overwithheld or overpaid tax, you must also file a Form 1040-NR. See the Instructions for Form 1040-NR PDF for more information.
- If you had wages subject to income tax withholding and file on a calendar-year basis, your return is due by April 15.
- If you didn't have wages subject to withholding and file on a calendar-year basis, your return is due by June 15.
Resident aliens must follow the same tax laws as U.S. citizens. If you're a resident alien, you must report your worldwide income from all sources, that is, income from both within and outside the United States. You'll file a Form 1040, U.S. Individual Income Tax Return or Form 1040-SR, U.S. Tax Return for Seniors.
- If you're a resident alien filing on a calendar-year basis, your return is due by April 15, and you should file it with the service center for your area.
For any due date that falls on a Saturday, Sunday, or legal holiday, the due date is delayed until the next business day.
