Alien Residency Examples
The following are examples of the application of the tax residency rules to various situations involving nonresident alien visitors to the United States and aliens temporarily present in the United States as students, trainees, scholars, teachers, researchers, exchange visitors, and cultural exchange visitors.
Example 1
Wei Wu was a citizen and resident of the People's Republic of China immediately prior to his entry into the United States. He is temporarily present in the United States as a graduate student at a university in Cleveland on an F-1 visa (student visa). He arrived in the United States on 08-15-2005. Assume that Wei Wu has not changed his immigration status since his arrival in the United States.
Solution:
Date of entry into United States: 08-15-2005
Student F-1 visa. Exempt Individual for 5 calendar years including 2005.
Then, begin counting 183 days at this date: 01-01-2010.
Number of nonexempt days in United States during 2010: 365 days
Current year (2010) days in United States × 1 = 365 days
Prior year (2009) days in United States × 1/3 = 0 days
Second Prior year (2008) days in United States (0) × 1/6 = 0 days
Total = 365 days
Wei Wu passed the substantial presence test on 07-02-2010 (the 183rd day of 2010). Wei Wu's residency starting date under I.R.C. § 7701(b): 01-01-2010 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).
Example 2
Wei Wu's wife Li Chen arrived in the United States on the same day as Wei Wu on an F-2 visa (spouse or dependent of a student on an F-1 visa). However, on 6-15-2007 she changed nonimmigrant status from F-2 to a Temporary Protected Status pursuant to an official announcement of the U.S. Citizenship and Immigration Services (USCIS). She received an EAD (Employment Authorization Document) from USCIS and went to work for a United States employer, who then petitioned USCIS on her behalf to secure her a Green Card. On 09-15-2008 USCIS approved her status as a lawful permanent resident of the United States and later issued her a Green Card under the routine procedures of the USCIS.
Solution:
Date of entry into United States: 08-15-2005
Date of change in status out of F-2: 06-15-2007
Exempt Individual from 08-15-2005 through 06-14-2007
Begin counting 183 days at this date: 06-15-2007
Number of nonexempt days in United States during 2007: 200 days
Current year (2007) days in United States (200) × 1 = 200 days
Prior year (2006) days in United States (0) × 1/3 = 0 days
Second Prior year (2005) days in United States (0) × 1/6 = 0 days
Total = 200 days
Li Chen passed the substantial presence test on: 12-14-2007 (the 183rd day after 06-14-2007). Li Chen's residency starting date under I.R.C. 7701(b): 06-15-2007 (the first day she was counted as being present in United States during the calendar year in which she passed the substantial presence test). An "exempt individual" is never counted as being physically present in the United States for the purposes of the substantial presence test. For tax purposes it does not matter that she later became a Lawful Permanent Resident on 09-15-2008 because she had already become a resident alien under the substantial presence test on 12-14-2007.
Example 3
Assuming the same facts as in (1) and (2) above. What kind of federal income tax returns will both taxpayers file for 2009 and 2010?
Solution:
2009:
Option #1: Wei Wu may file Form 1040NR or 1040NR-EZ as a nonresident alien, married filing separately. Li Chen may file Form 1040 or 1040A as a resident alien, married filing separately.
Option #2: Wei Wu and Li Chen may take advantage of the option allowed by I.R.C. 6013(g), Election to Treat Nonresident Alien Individual as Resident of the United States, to file a joint 1040 or 1040A for 2009 because Li Chen is a resident alien at the end of 2009. See U.S. Citizens and Resident Aliens Abroad - Nonresident Alien Spouse for more information on the election to treat a nonresident alien as a resident and file a joint return..
2010:
Wei Wu and Li Chen may file a joint 1040 or 1040A because both spouses are resident aliens for 2010, or each spouse may file Form 1040 or 1040A as married filing separately.
Example 4
Mr. Avatar Venkateschwaran was a citizen and resident of India just prior to his arrival in the United States. He is a research scholar in chemical engineering at a university in Chicago. He arrived in the United States on 08-29-2008 on a J-1 visa. Assuming he has not changed to another immigration status, determine his residency starting date. What kind of federal income tax returns will he file for 2009 and 2010?
Solution:
Date of entry into United States: 08-29-2008
Research scholar J-1 visa. Exempt Individual 2 calendar years: 2008, 2009.
Then, begin counting 183 days at this date: 01-01-2010
Number of nonexempt days in United States during 2010: 365 days
Current year (2010) days in United States × 1 = 365 days
Prior year (2009) days in United States (0) × 1/3 = 0 days
Second Prior year (2008) days in United States (0) × 1/6 = 0 days
Total = 365 days
Avatar passes the substantial presence test on: 07-02-2010 (the 183rd day of 2010). Avatar's residency starting date under I.R.C. 7701(b): 01-01-2010 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).
Which tax return will Avatar file for 2008, 2009, and 2010?
2008:
Avatar will file Form 1040NR or 1040NR-EZ as a nonresident alien.
2009:
Avatar will file Form 1040NR or 1040NR-EZ as a nonresident alien.
2010:
Avatar will file Form 1040/1040A/1040EZ as a resident alien.
Example 5
Mr. Gerard de la Fontaine was a citizen and resident of France just prior to his arrival in the United States. He is an employee of a French corporation affiliated with a U.S. corporation. He arrived in the United States on 04-30-2008 on an L-1 visa to work for the affiliated U.S. corporation in Cleveland. He does not intend to leave the United States until 04-29-2011. Determine his residency starting date.
What kind of federal income tax returns will he file for 2008, 2009, and 2010?
Solution:
Date of entry into United States: 04-30-2008
Nonexempt individual.
Begin counting 183 days at this date: 04-30-2008
Number of nonexempt days in United States during 2008: 246 days
Current year (2008) days in United States (246) × 1 = 246 days
Prior year (2007) days in United States (0) × 1/3 = 0 days
Second Prior year (2006) days in United States (0) × 1/6 = 0 days
Total = 246 days
Gerard passed the substantial presence test on: 10-29-2008 (the 183rd day after 04-29-2008). Gerard's residency starting date under I.R.C. § 7701(b): 04-30-98 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).
What kind of tax returns will Gerard file for 2008, 2009 and 2010?
2008:
Gerard will file a dual-status tax return as a dual-status alien.
2009:
Gerard will file Form 1040/1040A/1040EZ as a resident alien.
2010:
Gerard will file Form 1040/1040A/1040EZ as a resident alien.
Example 6
Miss Rebeca de los Santos was a citizen and resident of Argentina immediately prior to her arrival in the United States. She arrived in the United States on 03-15-2008 as a tourist on a B-2 visa and remained continuously in the United States thereafter. Later in 2008 she enrolled as a student at a university in New York, and, as a result, changed nonimmigrant status to F-1 (student) on 11-15-2008. Determine her residency status for 2008, 2009, and 2010. What kind of federal income tax returns will she file for 2008, 2009, and 2010?
Solution:
Analysis for 2008
Date of entry into United States: 03-15-2008
Nonexempt individual 03-15-2008 through 11-14-2008
Exempt Individual 11-15-2008 through 12-31-2012
(student on F-1 visa is “exempt Individual” for 5 calendar years, including 2008)
Begin counting 183 days at this date: 03-15-2008
Stop counting days at this date: 11-14-2008
Number of nonexempt days in United States during 2008: 245 days
Number of exempt days in United States during 2008: 47 days
Current year (2008) days in United States (245) × 1 = 245 days
Prior year (2007) days in United States (0) × 1/3 = 0 days
Second Prior year (2006) days in United States (0) × 1/6 = 0 days
Total for 2008 = 245 days
Rebeca passed the substantial presence test on: 09-13-2008 (the 183rd day after 03-14-2008). Rebeca's residency starting date under I.R.C. 7701(b): 03-15-2008 (the first day she was present in United States during the calendar year in which she passed the substantial presence test).
Under the general rule, the residency ending date under the substantial presence test is December 31st of the year in which Rebeca ceases to be present in the United States. However, an exception is allowed for a residency ending date that is earlier than December 31 in the alien's last calendar year in the United States. Refer to Residency Starting and Ending Dates.
The exception allows Rebeca's residency ending date to be the last day during the calendar year that she ceases to be present in the United States if, for the remainder of the calendar year:
- the individual's tax home is in a foreign country (Rev. Rul. 93-86); and
- he or she maintains a closer connection to that foreign country than to the United States (Treas. Reg. § 301.7701(b)-2(d)).
If she qualifies for the exception, Rebeca's residency ending date under the exception to the general rule: 11-14-2008.
However, Rebeca does not seem to qualify for the exception to the general rule for determining her residency ending date because, after 11-14-2008, she did not have a tax home in a foreign country and she did not maintain a closer connection to a foreign country than to the United States.
Since Rebecca does not qualify for the exception to the residency ending date general rule, her residency ending date remains: 12-31-2008.
Analysis for 2009
Date of entry into United States: 03-15-2008
Nonexempt individual: 03-15-2008 through 11-14-2008
Exempt individual: 11-15-2008 through 12-31-2012
(student on F-1 visa is “exempt Individual” for 5 calendar years, including 2008)
Begin counting 183 days at this date: 03-15-2008
Stop counting days at this date: 11-14-2008
Number of nonexempt days in United States during 2009: 0 days
Number of exempt days in United States during 2009: 365 days
Current year (2009) days in United States (0) × 1 = 0 days
Prior year (2008) days in United States (245) × 1/3 = 82 days
Second Prior year (2007) days in United States (0) × 1/6 = 0 days
Total for 2009 = 82 days
Rebeca does not pass the substantial presence test for 2009.
Per the Analysis for 2008 above, Rebeca's residency ending date under the general rule: 12-31-2008.
Rebeca is a nonresident alien for calendar year 2009.
Analysis for 2010
Date of entry into United States: 03-15-2008
Nonexempt individual: 03-15-2008 through 11-14-2008
Exempt Individual: 11-15-2008 through 12-31-2012
Begin counting 183 days at this date: 03-15-2008
Stop counting days at this date: 11-14-2008
Number of nonexempt days in United States during 2010: 0 days
Number of exempt days in United States during 2010: 365 days
Current year (2010) days in United States (0) × 1 = 0 days
Prior year (2009) days in United States (0) × 1/3 = 0 days
Second Prior year (2008) days in United States (245) × 1/6 = 41 days
Total for 2010 = 41 days
Rebeca does not pass the substantial presence test for 2010.
Rebeca's residency ending date under the general rule: 12-31-2008.
What kind of tax returns will Rebeca file for 2008, 2009 and 2010?
2008:
Rebeca will file a dual-status tax return as a dual-status alien, since she is a nonresident alien from 01-01-2008 through 03-14-2008 and a U.S. resident alien under the substantial presence test from 03-15-2008 through 12-31-2008.
2009:
Rebeca will file Form 1040NR or 1040NR-EZ as a nonresident alien.
2010:
Rebeca will file Form 1040NR or 1040NR-EZ as a nonresident alien.
Example 7
Miss Natalia Nabokova was a citizen and resident of Russia just prior to her arrival in the United States. She arrived in the United States on 08-25-2008 as a student on an F-1 visa. In late 2008, she became enamored of a young American lad, and on 02-02-2009 she married Mr. Paul Oakland, a United States citizen. On 03-01-2009 she petitioned USCIS for a change in immigration status to that of lawful permanent resident based upon her marriage to Mr. Oakland. On 05-15-2010 USCIS approved her petition to become a lawful permanent resident of the United States, and issued her a green card later in the year under the routine procedures of the USCIS. Determine her residency starting date.
What kind of federal income tax returns will she file for 2008, 2009, and 2010?
Solution:
Analysis for 2008
Date of entry into United States: 08-25-2008
Exempt individual: 2008.
(student on F-1 visa is “exempt Individual” for 5 calendar years, including 2008).
Number of nonexempt days in United States during 2008: 0 days
Number of exempt days in United States during 2008: 129 days
Current year (2008) days in United States (0) × 1 = 0 days
Prior year (2007) days in United States (0) × 1/3 = 0 days
Second Prior year (2006) days in United States (0) × 1/6 = 0 days
Total for 2008 = 0 days
Natalia failed to pass the substantial presence test in 2008.
Analysis for 2009
Date of entry into United States: 08-25-2008
Exempt individual: 2008 and 2009
(student on F-1 visa is “exempt Individual” for 5 calendar years, including 2008)
Number of nonexempt days in United States during 2009: 0 days
Number of exempt days in United States during 2009: 365 days
Current year (2009) days in United States (0) × 1 = 0 days
Prior year (2008) days in United States (0) × 1/3 = 0 days
Second Prior year (2007) days in United States (0) × 1/6 = 0 days
Total for 2009 = 0 days
Natalia does not pass the substantial presence test for 2009 and Natalia does not pass the green card test for 2009. The filing of a petition with USCIS does not constitute a change of status under immigration law.
Analysis for 2010
Date of entry into United States: 08-25-2008
Exempt individual: 08-25-2008 through 05-14-2010.
Begin counting days of presence on: 05-15-2010.
Number of nonexempt days in United States during 2010: 231 days
Number of exempt days in United States during 2010: 134 days
Current year (2010) days in United States (231) × 1 = 231 days
Prior year (2009) days in United States (0) × 1/3 = 0 days
Second Prior year (2008) days in United States (0) × 1/6 = 0 days
Total for 2010 = 231 days
Natalia passes the substantial presence test on 11-13-2010 (the 183rd day after 05-14-2010).
Natalia passes the Green Card test on 05-15-2010.
Since she was already in the United States when she became a lawful permanent resident, Natalia’s residency starting date under I.R.C. 7701(b): 05-15-2010 (per both the substantial presence test and the green card test).
What kind of tax returns will Natalia file for 2008, 2009 and 2010?
2008:
Natalia will file Form 1040NR or 1040NR-EZ as a nonresident alien.
2009:
Option # 1. Natalia will file Form 1040NR or 1040NR-EZ as a nonresident alien, married filing separately.
Option # 2. Natalia will file a joint 1040 or joint 1040A with her United Sates citizen spouse, whom she married on 02-02-2009, making an election under I.R.C. § 6013(g), Election to Treat Nonresident Alien Individual as Resident of the United States.
2010:
Option # 1. Natalia will file as a dual-status alien (Form 1040 with Form 1040NR attached as a schedule), married filing separately, as she became a lawful permanent resident on 05-15-2010.
Option # 2. Natalia will file a joint 1040 or 1040A with her United States citizen spouse, as she became a lawful permanent resident on 05-15-2010 and they were married as of 12-31-2010.
Example 8
Mr. Gerhard Schwarz was a citizen and resident of Germany just prior to his arrival in the United States. He arrived in the United States on 08-15-2009 as a professor of physics on an H-1b visa. He intends to remain in the United States for two academic years, and does not intend to change his immigration status during that period before returning home. Determine his residency starting date.
What kind of federal income tax returns will he file for 2009 and 2010?
Solution:
Analysis for 2009
Date of entry into United States: 08-15-2009
Nonexempt individual: 2009
Begin counting 183 days at this date: 08-15-2009
Number of nonexempt days in United States during 2009: 139 days
Current year (2009) days in United States (139) × 1 = 139 days
Prior year (2008) days in United States (0) × 1/3 = 0 days
Second Prior year (2007) days in United States (0) × 1/6 = 0 days
Total = 139 days
Gerhard does not pass the substantial presence test during 2009.
As another option, Gerhard could claim the First-Year Choice under IRC 7701(b)(2)(A) and qualify for a residency starting date of 08-15-2009. He did not meet either the green card test or the substantial presence test in the prior year (2008), he was present in the United States for at least 31 days in a row in 2009, was present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period (08-15-2009) and ending with the last day of 2009, and met the substantial presence test in the subsequent year (2010). Refer to the Residency Starting Date under the First-Year Choice section in Residency Starting and Ending Dates.
Analysis for 2010
Date of entry into United States: 08-15-2009
Nonexempt individual: 2009.
Nonexempt individual: 2010.
Begin counting 183 days at this date: 08-15-2009
Number of nonexempt days in United States during 2010: 365 days
Current year (2010) days in United States (365) × 1 = 365 days
Prior year (2009) days in United States (139) × 1/3 = 47 days
Second Prior year (2008) days in United States (0) × 1/6 = 0 days
Total = 412 days
Gerhard passes the substantial presence test: 05-15-2010. (47 days from 2009 + 136 days from 2010 = 183 days)
Gerhard's residency starting date: 01-01-2010 (the first day he was present in United States during the calendar year in which he passed the substantial presence test).
What kind of tax returns will Gerhard file for 2009, 2010?
2009:
Option #1. Gerhard will file Form 1040NR/1040NR-EZ as a nonresident alien.
Option #2. Gerhard will file a dual-status tax return as a dual-status alien, claiming the First-Year Choice under IRC 7701(b)(2)(A) and a residency starting date of 08-15-2009.
2010:
Gerhard will file Form 1040/1040A/1040EZ as a resident alien.
Example 9
Miss Soula Demetrios was a citizen and resident of Greece just prior to her arrival in the United States. She arrived in the United States on 8-15-2003 as a student on an F-1 visa. She remained in F-1 status until she graduated with a Master's degree in June, 2008. She left the United States on 06-30-2008 and returned home to Greece. On 08-01-2009 she returned to the United States as a researcher on a J-1 visa. Determine her residency starting date for her most recent visit.
What kind of federal income tax returns will she file for 2009 and 2010?
Solution:
Analysis for 2009
Date of entry into United States: 08-01-2009
Exempt individual: 08-15-2003 through 12-31-2007
(student on F-1 visa is “exempt Individual” for 5 calendar years, including 2003)
Nonexempt individual: 01-01-2008 through 06-30-2008 and 08-01-2009 through 12-31-2009
Begin counting 183 days at this date: 08-01-2009. Because Soula is currently a J-1 non-student, then we will apply the 6-year “lookback rule” to her. Because she had already been an exempt individual as an F-1 student during 2 of the 6 years prior to 2009, then she cannot be an exempt individual during 2009, and she must start counting days of presence on the date of her arrival in the United States. During her prior visit as an F-1 student, applying the 5-year rule, she ceased to be an exempt individual on 12-31-2007.
Number of nonexempt days in United States during 2009: 152 days
Current year (2009) days in United States (152) × 1 = 152 days
Prior year (2008) days in United States (182) × 1/3 = 61 days
Second Prior year (2007) days in United States (0) × 1/6 = 0 days
Total = 213 days
Soula passes the substantial presence test on: 11-30-2009. (61 days from 2008 + 122 days from 2009)
Soula's residency start date: 08-01-2009 (Soula had not been present in the United States long enough to establish residency during 2008, nor to qualify for the First-Year Choice under IRC 7701(b)(2)(A) – she was present in the United States for less than 75% of the days from 01-01-2008, when she was in the United States, to the last day of 2008. Thus, her residency must begin on 08-01-2009, the first day she is present in the United States during the year she passes the substantial presence test.)
Analysis for 2010
Date of entry into United States: 08-01-2009
Exempt individual: 08-15-2003 through 12-31-2007
(student on F-1 visa is “exempt Individual” for 5 calendar years, including 2003)
Nonexempt individual 01-01-2008 through 06-30-2008 and 08-01-2009 through 12-31-2009
Begin counting 183 days at this date: 08-01-2009
Number of nonexempt days in United States during 2010: 365 days
Current year (2010) days in United States (365) × 1 = 365 days
Prior year (2009) days in United States (152) × 1/3 = 51 days
Second Prior year (2008) days in United States (182) × 1/6 = 31 days
Total = 447 days
Soula passes the substantial presence test for 2010.
Since she was a resident alien on 12-31-2009, and has not left the United States, then her residency in the United States established in 2009 continues into 2010 with no residency ending date.
What kind of tax returns will Soula file for 2009, 2010?
2009:
Soula is a dual-status alien and will file a dual-status income tax return.
2010:
Soula will file Form 1040/1040A/1040EZ as a resident alien.
Example 10
Miss Salome Rashid was a citizen and resident of Egypt just prior to her arrival in the United States. She arrived in the United States on 08-15-2007 as a researcher on a J-1 visa. Without leaving the United States, she became a student and changed to F-1 status on 08-10-2009. Determine her residency starting date.
What kind of federal income tax returns will she file for 2009 and 2010?
Solution:
Analysis for 2009
Date of entry into United States: 08-15-2007
Exempt Individual: 2007
Exempt Individual: 2008
(researcher on J-1 visa is “exempt Individual” for 2 calendar years with a 6-year “lookback rule”)
Nonexempt individual commencing: 01-01-2009
Begin counting 183 days at this date: 01-01-2009
Analysis for 2009
Begin counting 183 days at this date: 01-01-2009. However, days as an exempt individual start again on 08-10-2009 (when Salome becomes an F-1 student on 08-10-2009, we must begin applying the 5-year rule to her beginning at that point in time). After 08-09-2009 we will not apply the 6-year “lookback rule” to Salome because she has now become a student. Since Salome has already been an exempt individual during 2007 and 2008, then her status as a student exempt individual can only continue through 2009, 2010, and 2011 – student on F-1 visa is “exempt Individual” for 5 calendar years, including 2007. During 2009 her status as an exempt individual commences on 08-10-2009. Therefore, the number of nonexempt days in the United States during 2009 is 221 days.
Number of nonexempt days in United States during 2009: 221 days
Current year (2009) days in United States (221) × 1 = 221 days
Prior year (2008) days in United States (0) × 1/3 = 0 days
Second Prior year (2007) days in United States (0) × 1/6 = 0 days
Total = 221 days
Salome passes the substantial presence test on: 07-02-2009 (the 183rd day after 12-31-2008).
Salome's residency start date: 01-01-2009 (the first day she is present in the United States during the year she passes the substantial presence test.)
Under the general rule, the residency ending date under the substantial presence test is December 31st of the year in which Salome ceases to be present in the United States. However, an exception is allowed for a residency ending date that is earlier than December 31 in the alien's last calendar year in the United States. Refer to Residency Starting and Ending Dates.
The exception allows Salome’s residency ending date to be the last day during the calendar year that she ceases to be present in the United States if, for the remainder of the calendar year:
- the individual's tax home is in a foreign country (Rev. Rul. 93-86); and
- he or she maintains a closer connection to that foreign country than to the United States (Treas. Reg. § 301.7701(b)-2(d)).
If she qualifies for the exception, Salome’s residency ending date under the exception to the general rule: 08-09-2009 (the date she ceases to be considered present in the United States, since she became an exempt individual on that date).
However, Salome does not seem to qualify for the exception to the general rule for determining her residency ending date because, after 08-09-2009, she did not have a tax home in a foreign country and she did not maintain a closer connection to a foreign country than to the United States.
Since Salome does not qualify for the exception to the residency ending date general rule, her residency ending date remains: 12-31-2009.
Analysis for 2010
Date of entry into United States: 08-15-2007
Exempt Individual: 2007 Count 0 days of presence.
Exempt Individual: 2008 Count 0 days of presence.
Exempt Individual: 2009 Count 221 days of presence.
Exempt Individual: 2010 Count 0 days of presence.
Number of nonexempt days in United States during 2010: 0 days
|Current year (2010) days in United States (0) × 1 = 0 days
Prior year (2009) days in United States (221) × 1/3 = 74 days
Second Prior year (2008) days in United States (0) × 1/6 = 0 days
Total = 74 days
Salome does not pass the substantial presence test for 2010.
Summary for Salome Rashid:
2007:
Nonresident Alien
2008:
Nonresident Alien
2009:
Resident Alien
2010:
Nonresident Alien
What kind of tax returns will Salome file for 2007 through 2010?
2007 and 2008:
Salome will file Form 1040NR/1040NR-EZ as a nonresident alien for each calendar year.
2009:
Salome will file Form 1040/1040A/1040EZ as a resident alien.
2010:
Salome will file Form 1040NR/1040NR-EZ as a nonresident alien.
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.
