What Determines Residency Status? The IRS vs. The USCIS

31 May 2017
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Your residency status may differ if you are filing for taxes or if you are in the process of changing your immigration status with United States Citizenship and Immigration Services. What does this mean? This means that USCIS and the IRS have their own specific criteria for determining who has residence status. In order to be considered a resident by the IRS you must fulfill their own criteria:

  1. Permanent residence (Green Card).
  2. Substantial Presence in the United States.
  3. Married to a U.S. citizen or a permanent resident.

For the IRS it is possible for you to be considered a resident alien for tax filing with just one day of presence in the United States only if you were granted permanent residence (Green Card) in the current year by USCIS. How can that be? Yes this sounds odd, but it is possible. For example let’s say a young woman named Camila was granted permanent residence status on the 31st of December 2016. For USCIS she is a resident alien because she has a Green Card. The IRS recognizes Camila as a resident alien for tax filing purposes.

Another possible way to determine residence status by the IRS is the Substantial Presence test. For this test there are two things you must have to determine residence status. The test is based on a 3-year period, which you must be present for a total of 183 days. Let’s break it down and make it simple. You must be physically present in the United States for more than 31 days during the current year. During the 3-year period you were present in the U.S. 132 days per year (2014, 2015, 2016). In order to count all the days in the 3-year period The IRS counts the days of presence differently depending on the year, and it goes as follows:

  1. All days present in the current year (2016) count.
  2. All days present in the first year before the current year count (2015) as 1/3
  3. All days present in the second year before the current year (2014) count as 1/6

On the second year before the current year you were present for 22 days (1/6 of 132 days). For the first year before the current year you were present for 44 days (1/3 of 132 days). Finally, the during the current year you were present for 132 days (everyday counts). In total you were present for 198 days during the 3-year period. According to the IRS you pass the 183 days presence in the 3-year period, and therefore you are considered a resident by the IRS.

The third and final possible way to be considered a resident by the IRS is marriage. If one spouse is a U.S. citizen or a Permanent Resident (Green Card holder) the other spouse (non-resident alien) may be considered a resident by the IRS. This can be best explained with a scenario. Supposed Patrick a U.S. citizen marries Mathilde, a non-resident alien. The couple can decide if Mathilde may be treated as a resident for the IRS. When filing for the year in where Mathilde decided to be a resident the couple must file joint returns. For the next year the couple has the option of filing either joint or separate returns.

The IRS can decide whether someone has residence status or not, but they are not the only ones as the United States Citizen and Immigration Services (USCIS) can also determine residence status.

USCIS may grant lawful permanent residence (Green Card) to those who meet the requirements. A Green Card holder can live and work in the U.S. permanently. The Green Card can be attained through:

  1. Family
  2. Job
  3. Refugee or Asylee status

Attaining a permanent residence through immediate family members is possible. Someone who is a spouse, unmarried children (under 21), and Parents of U.S. citizens over the age of 21 can be eligible for a Green Card.

A job offer can allow a worker to become a permanent resident. The employer must have/get a labor certification. Those who wish to invest in enterprises to create jobs in the U.S. are also eligible for permanent resident. Another option is to be a self petitioner, and this is for certain individuals who have extraordinary abilities (sciences, arts, education, etc.) or were granted National interest waiver. A certain individual can gain permanent residence through special categories of jobs:

  • Broadcaster
  • International Organization Employee
  • Afghan/Iraqi Translator
  • Iraqi Who Assisted the U.S. Government
  • NATO-6 Nonimmigrant
  • Panama Canal Employee
  • Physician National Interest Waiver
  • Religious Worker

Refugees and Asylees can be eligible for permanent residence. After a year of being a Refugee/Asylee the person can petition for a Green Card without being charged any filing fees.

Permanent residence can be granted inside or outside the United States. The process of attaining a Green Card varies if the individual is inside or outside the United States

When can the petitioner be considered a resident by the USCIS? Once the petitioner is granted a Green Card he/she is considered a resident from that day forward.

Remember that residence status varies on who determines it either the IRS or the USCIS. To recap, the IRS has specific criteria to determine residence, like how many days you have spent in the country. The USCIS grants Green Cards, which give residence status. Once the USCIS grants permanent residence then the IRS will recognize an individual as a resident as well. Keep in mind that the requirements and criteria for residence status may change in the future.

Feel free to email us or message us if you have any other compliance tips or questions!

Written By: Brian Johnson Immigration Attorney

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