First year choice applicability

[amrd]

Hello, 

I have a query in regards to first year choice for myself. From tax purposes:

I was resident alien in 2019 

I was non resident in 2020 entire year

I stayed for 70 days in 2021 (continuous)

I would staying for more than 183 days I in 2022 which will make my status to resident alien.
Will I be able to make first year choice? I do not see any restrictions on IRS website for tax status before the immediately preceding year. Hence the confusion. 

Any help or pointers are highly appreciated. Thank you! 

[DaveF1006]

Yes, for tax year 2022, you will be considered a resident alien in accordance with the substantial presence test if you stay more than 183 days.

To meet this test, you must be physically present in the United States (U.S.) on at least:

1. 31 days during the 2020 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.

[ Edited 01/14/22|03:54 PM PST]

[amrd]

Thanks @DaveF1006. I was more trying to understand if I can be eligible for making first year choice for year 2021 so that I can be treated as resident alien instead of non-resident. 

My current case is as below:

I was resident alien in 2019 

I was non resident in 2020 entire year

I stayed for 70 days in 2021 (continuous)

assuming I will be resident in 2022.

[DianeW777]

No, not for 2021 under the Substantial Presence Test, which is based on the information you provided and meeting the necessary requirements.

My current case is as below:

I was resident alien in 2019    

I was non resident in 2020 entire year

I stayed for 70 days in 2021 (continuous)  Must be present at least 31 days in the current year (2021) AND 

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 (this eliminates your eligibility because you had zero days in 2020). 
• 1/6 of the days you were present in the second year before the current year.

Based on the IRS Substantial Presence Test, it would be some time before you are eligible, but you could potentially use the Green Card Test in 2021 or 2022, if it applies to you. If not, you will file as a nonresident alien.  Review the information in the links provided.