TN 10 (04-97)

GN 05010.040 Substantial Presence Test

A. INTRODUCTION

An individual who has not been lawfully admitted to the U.S. for permanent residence can be considered a U.S. resident if he meets a substantial presence test.

Under this test, presence in the U.S. is determined under IRS law and policy and is not necessarily a period of residence for SSA purposes.

B. DEFINITION

An exempt person (see C.2.d.) is:

  • A foreign-government related individual in the U.S. with full-time diplomatic or consular status;

  • An individual temporarily in the U.S. as an employee of an international organization;

  • An individual temporarily in the U.S. as a member of the immediate family of a person described in the first or second bullet;

  • A teacher or trainee (other than a student) temporarily in the U.S. under a “J” visa and who complies with requirements for being so present. He cannot keep this status if he has been exempt (as a teacher, trainee or student) in any part of 2 of the preceding 6 calendar years;

  • A student who is temporarily in the U.S. under an “F” or “J” visa and complies with the requirements of that visa. This status cannot be kept for more than 5 years without IRS approval; or

  • A professional athlete temporarily in the U.S. to compete in a charitable event.

C. Policy

1. General

An individual meets the substantial presence test in any year in which:

  1. He is present in the U.S. (see 2.) on at least 31 days (they do not have to be consecutive days); and

  2. The sum of the number of days on which he was present in the U.S. in the current and preceding two years is not less than 183 days,as determined under IRS's formula (see 3.).

EXCEPTION:  An alien who meets the substantial presence test is not treated as a U.S. resident in any year in which he is present in U.S. on less than 183 days and he has a tax home (see 4.) in another country and a closer connection (see 5.) to that country than to U.S.

This exception does not apply to any year in which an individual has an application pending for adjustment of his status or has taken other steps to apply for lawful permanent resident status.

2. Presence in the U.S.

An individual is present in the U.S. on any day he is present in the U.S. for any part of the day except an individual is not considered present:

  1. On any day he commutes if he regularly commutes to a place of employment or self-employment in the U.S. from a residence in Canada or Mexico;

    EXAMPLE:  A Mexican resident, who crosses the border every day to work in the U.S. and returns to his home in Mexico each night, is not considered present in the U.S. on any of these days. However, if he leaves home every Monday and returns every Friday, he may be considered present in the U.S. on Tuesday, Wednesday and Thursday.

  2. On any day he is unable to leave the U.S. because of a medical condition which arose while he was in the U.S.;

  3. During transit time if he is in transit between two points outside the U.S. and physically present in the U.S. for less than 24 hours; or

  4. On any day he is an exempt person (see B.)

3. Computing Days Present in the U.S.

The number of days of presence in the U.S. in the 3-year period is the total of number of days present the U.S. in the:

  1. current year multiplied by 1;

  2. first preceding year multiplied by one-third; and

  3. second preceding year multiplied by one-sixth.

Round fraction of days up to the next number.

EXAMPLE:  Zoltan Brown was present in the U.S. on 43 days in the current year (1989), 164 days in 1988 and 167 days in 1987. Substantial presence is computed under the IRS formula as follows.

43 (days in 1989) × 1=43
164 (days in 1988) × 1/3=55
167 (days in 1987) × 1/6=28
Total days in U.S. 126

Mr. Brown does not meet the substantial presence test for 198