TN 6 (07-90)

GN 05010.045 Developing the Substantial Presence Test

A. Policy

1. General

Do not develop for U.S. resident status under the substantial presence unless the individual:

  1. Alleges U.S. residence, and

  2. Either:

    • Has not been lawfully admitted for permanent residence, or

    • Cannot submit evidence of that admission.

In developing whether this test is met, consider whether the individual was present in the U.S. on the required number of days (GN 05010.040C.1.) and whether he was an exempt person (GN 05010.040B.).

A beneficiary outside the U.S. cannot meet this test on a continuing basis unless the file shows he plans to return to the U.S. in the next year.

NOTE:  Since this test is based on a computation of the days present in the U.S. in the current and preceding 2 years, there are annual contacts (see GN 05010.050) to verify this test continues to be met.

2. Presence in the U.S.

Generally, accept an individual's statement about days he was present in the U.S. if supported by documentary evidence.

Evidence of presence in the U.S. must be sufficient to establish presence at the beginning of each period and to permit a reasonable assumption an individual remained in the U.S. as alleged. It need not show he was in the U.S. on each day of every period.

Assume periods of residence on the SSA-21 or other statements correspond to an individual's presence in the U.S. Do not develop for periods of presence, other than shown on the SSA-21 or other data in file, unless information on other periods comes to SSA's attention.

If an individual shows only the month and year his presence began and ended, assume the period of presence began on the last day of the first month of the period and ended on the first day of the last month of the period. Do not recontact an individual to get actual day of entrance/departure unless it is material to the computation.

NOTE:  This does not eliminate need for evidence of presence in the U.S. (see C.). It only eliminates need for recontact when this information is not needed,

3. Exempt Person

Assume, absent information to the contrary, an individual is not an exempt person.

B. Procedure - Presence in U.S.

1. General

Secure a statement of residence in the U.S. as explained in GN 05010.030C.1.

Ask the individual when he became a U.S. resident and when he was present in the U.S. if the information on the SSA-21 about the periods he was in U.S. is not sufficient to develop substantial presence or there is no SSA-21.

2. Residence Began in Current Year

Ascertain the number of days the individual was present in the U.S. in the current year.

  1. Not Present at Least 183 Days - Explain the provisions of the test and advise the individual to contact SSA when he meets these provisions.

  2. Present at Least 183 Days - Get evidence of presence (see E.).

3. Residence Began in Year Before Current Year

Ascertain the number of days the individual was present in the U.S. in the current and prior years.

  1. Not Present in Current Year at Least 31 Days - 

    Do not undertake further development. Explain the provisions of the test and advise the beneficiary to contact SSA when he meets these provisions.

  2. Present in Current Year at Least 31 Days - Use formula in GN 05010.040C.3. to determine whether the substantial presence test can be met.

    If the substantial presence test can be met,get evidence of presence (see E.).

4. Residence Began More Than 1 Year Before Current Year

Ascertain the number of days the individual was in the U.S. in the current year and preceding 2 years. Take action as explained in 3.

C. Procedure - Exempt Person

Examine the individual's visa or other admission papers to ascertain his status if there is an indication he may be an exempt person.

If the individual is an exempt person, advise him he cannot be considered a U.S. resident under the substantial presence test and is subject to tax withholding.

D. Kinds of Evidence of Presence

Evidence of presence in the U.S. can include,is not limited to: