Substantial Presence Test Law and Legal Definition

Substantial presence test is a test defined by the IRS to determine if a foreign national qualifies as a resident alien or a U.S resident for tax purposes. In order to qualify the test, the foreign national should be physically present in the United States for at least:

  • 31 days during the current year, and
  • 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting: All the days a person is present in the current year, and 1/3 of the days the person present in the first year before the current year, and 1/6 of the days the person is present in the second year before the current year.

A person is treated as present in the United States on any day s/he is physically present in the country, at any time during the day. However, there are exceptions to this rule. The following days are not counted as presence in the United States for the substantial presence test.

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