Non-resident Tax Rules

The IRS considers any alien not meeting the green card test or the substantial presence test to be a non-resident alien. If an alien passes either the green card test or the substantial presence test, the IRS considers him a resident alien. Non-resident aliens have separate tax forms from non-aliens and resident aliens. The most important part of non-resident alien tax law is qualification as a resident alien under the green card test or the substantial presence test.

Substantial Presence Test

To meet the substantial presence test, you must be in the United States for at least 31 days during the year and 183 days during the prior three years. The 183 days counts all the days during the past year, 1/3 of the days present the year before and 1/6 of the days you were present the year before. For example, for 2009, all the days present in 2009 would count, 1/3 of the days present in 2008 would count, and 1/6 of the days present in 2007 would count. If you qualify under the substantial presence test, the IRS considers you a resident alien.

Green Card Test

If the U.S. Citizenship and Immigration Services has given you a green card, you fit the green card test. Once passing the green card test, the IRS considers you a resident alien. If you do not pass the green card test or the substantial presence test, the IRS considers you a non-resident alien.

IRS Tax Forms

If a non-resident alien had income for the year, they must file out Form 1040NR or Form 1040NR-EZ.

References

• IRS: Publication 519 (2008)
• IRS: Topic 851 Resident and Non-Resident Aliens