Resident or non-resident alien

[CMS310]

May 2014 to July 2014  =  60 days = J-1 student intern (all expenses paid by home country organization)

Sep 2016 - present ( Feb 2021)   = F-1 student

When filing taxes now (Feb 2021) for the tax year 2020 , am i resident or non-resident ?

In a nutshell, do i count my 2014 towards 5 years exempt rule or not ?

[ReneeM7122]

You are not considered a  resident for tax purposes based on the information that you provided.

According to the Substantial Presence Test:

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you 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.

Example:

You were physically present in the U.S. on 120 days in each of the years 2018, 2019 and 2020. To determine if you meet the substantial presence test for 2020, count the full 120 days of presence in 2020, 40 days in 2019 (1/3 of 120), and 20 days in 2018 (1/6 of 120). Since the total for the 3-year period is 180 days, you are not considered a resident under the substantial presence test: for 2020.

Days of Presence in the United States

You are treated as present in the U.S. on any day you are physically present in the country, at any time during the day. However, there are exceptions to this rule. Do not count the following as days of presence in the U.S. for the substantial presence test:

• Days you commute to work in the U.S. from a residence in Canada or Mexico, if you regularly commute from Canada or Mexico.
• Days you are in the U.S. for less than 24 hours, when you are in transit between two places outside the United States.
• Days you are in the U.S. as a crew member of a foreign vessel.
• Days you are unable to leave the U.S. because of a medical condition that develops while you are in the United States.
• Days you are an exempt individual (see below).

For details on days excluded from the substantial presence test for other than exempt individuals, refer to Publication 519, U.S. Tax Guide for Aliens.

The term United States (U.S.) includes the following areas:

• All 50 states and the District of Columbia.
• The territorial waters of the United States.
• 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.

[CMS310]

My current thought process :

My tax exempt years (if we consider 2014)  = 2014, 2016, 2017, 2018, and 2019

My non tax exempt years = 2020 ( i was present for 330 days)

so when i am filing 2020 tax return, i have more than 183 days in last 3 years and so i am a resident ?

Please let me know where I am getting it wrong ?

My calculation will be = 330 days (2020) +0 (2019- bcz i m exempt) + 0 (2018 - bcz i m exempt)  = 330 >183 days

[ReneeM7122]

Yes, according to your calculation, you meet the substantial presence test and should file a 1040 tax return.

[CMS310]

Ok. In my calculations, I am considering 2014 (J-1 visa) as a year, is that correct ?

[LinaJ2020 · Accepted solution]

Correct.  2014 is counted as one year. 

Based on your information, you are a resident for tax purposes.  When you switch from a J-visa to F-visa, you would apply the F- visa life time rule, which allows you to be exempt ( not counting days) for five years including J-visa lifetime.  Therefore, it counts year 2014 and  2016-2019.  Starting from January 1st 2020, if you stayed at least 183 days, you are considered as a resident.  

To see example, click here: https://www.irs.gov/individuals/international-taxpayers/alien-residency-examples ( Example 10) 

@CMS310