Are you a Resident or Nonresident Alien for Tax Purposes?

If you are not a U.S citizen, it is important to know if you are a resident or nonresident alien because this affect your tax return. Most U.S. source income a nonresident alien receives is subject to withholding with a tax rate of 30%. Nonresident aliens must file and pay any tax due using Form 1040NR, U.S. Nonresident Alien Income Tax Return or Form 1040NR-EZ, U.S. Income Tax Return for Certain Nonresident Aliens with No Dependents. A nonresident alien who is married to a U.S. citizen or resident at the end of the year can choose tax treatment as a U.S resident.

Generally, the IRS considers a person a resident alien if he or she meets either the green card test or the substantial presence test.

To meet the substantial presence test, the nonresident alien must be physically present in the United States (U.S.) on at least:

1. 31 days during the current year, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   • All the days you were present in the current year, and
   • 1/3 of the days you were present in the first year before the current year, and
   • 1/6 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" includes all 50 states and the District of Columbia, territorial waters, 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. The term does not include U.S. possessions and territories or U.S. airspace.

If one spouse is a nonresident alien and the other is a resident alien or a U.S. citizen, the nonresident alien can choose to be treated as U.S. resident alien. and file joint return. A nonresident alien can elect taxation as a U.S. resident for the whole year if all of the following apply:

• He or she is married;
• His or her spouse is a U.S. citizen or a resident alien on the last day of the tax year;
• He or she files a joint return for the year of the election using form 1040, 1040A or 1040EZ.

If you become a U.S. resident, you stay a resident until you leave the United States,

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