If you do not meet either the green card test or the substantial presence test for the current year (for example, 2020) or the prior year (2019), and you did not choose to be treated as a U.S. resident for part of the prior year (2019), but you meet the substantial presence test in the following year (2021), you can choose to be treated as a U.S. resident for part of the current year (2020) and be taxed as a dual-status alien for the current year (2020). To make this first-year choice, you must:
- Be present in the United States for at least 31 days in a row in the current year (2020), and
- Be present in the United States for at least 75% of the number of days following the 31-day period, beginning with the first day of the 31-day period and ending with the last day of the current year (2020). (For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.)
When counting the days of presence in (1) and (2) above, do not include the days you were present in the U.S. as an exempt individual.
If you make the first-year choice, your residency starting date for the current year (2020) is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are then treated as a U.S. resident for the rest of the year.
If you are present for more than one 31-day period and you satisfy condition (2) above for each of those periods, your residency starting date is the first day of the first 31-day period. If you are present for more than one 31-day period but you satisfy condition (2) above only for a later 31-day period, your residency starting date is the first day of that later 31-day period.
Residency Examples
Example 1. J is a citizen of a foreign country who came to the U.S. for the first time on November 1, 2020 and was here 31 consecutive days (from November 1 through December 1, 2020). J returned to the foreign country December 1 and came back to the United States December 17, 2020. J stayed in the United States for the rest of the year. During the following year (2021), J was a resident of the United States under the substantial presence test. J can make the first-year choice for 2020 because J was in the United States in 2020 for a period of 31 days in a row (November 1 through December 1) and for at least 75% of the days following (and including) the first day of that 31-day period (46 total days of presence in the United States divided by 61 days in the period from November 1 through December 31 equals 75.4%). If J makes the first-year choice, J’s residency starting date will be November 1, 2020.
Example 2. The facts are the same as in Example 1, except that J was also absent from the United States on December 24, 25, 29, 30, and 31. J can make the first-year choice for 2020 because up to 5 days of absence are considered days of presence for purposes of the 75% (0.75) requirement.
Filing Form 1040
You must attach a statement to Form 1040 to make the first-year choice. The statement must contain your name and address and specify the following:
- That you are making the first-year choice for the current year (2020).
- That you were not a U.S. resident in the prior year (2019).
- That you qualified as a U.S. resident under the substantial presence test in the following year (2021).
- The number of days of presence in the U.S. during the current year (2020).
- The date or dates of your 31-day period of presence and the period of continuous presence in the U.S. during the current year (2020).
- The date or dates of absence from the U.S. during the current year (2020), if any, that you are treating as days of presence under the first-year choice – see (2), above.
You cannot file Form 1040 or the statement for the current year (2020) until you meet the substantial presence test in the following year (2021). If you have not met the test for the following year (2021) as of April 15 of 2021 (the filing due date of the current year), you can request an extension of time for filing your Form 1040 for the current year (2020) until a reasonable period after you have met that test for the following year (2021). To request an extension to file, use Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return.
Once you make the first-year choice, you may not revoke it without the approval of the Internal Revenue Service.
Note: If you do not follow the procedures discussed here for making the first-year choice, you will be treated as a nonresident alien for the entire tax year. However, this does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing procedures and significant steps to comply with the procedures.
Choosing Resident Alien Status
If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.
You were a nonresident alien at the beginning of the year.
You are a resident alien or U.S. citizen at the end of the year.
You are married to a U.S. citizen or resident alien at the end of the year.
Your spouse joins you in making the choice.
This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year.
Note. If you are single at the end of the year, you cannot make this choice.
If you make this choice, the following rules apply.
You and your spouse are treated as U.S. residents for the entire year for income tax purposes.
You and your spouse are taxed on worldwide income.
You and your spouse must file a joint return for the year of the choice.
Neither you nor your spouse can make this choice for any later tax year, even if you are separated, divorced, or remarried.
The special instructions and restrictions for dual-status taxpayers in chapter 6 do not apply to you.
Note. A similar choice is available if, at the end of the tax year, one spouse is a nonresident alien and the other spouse is a U.S. citizen or resident. See Nonresident Spouse Treated as a Resident, later. If you previously made that choice and it is still in effect, you do not need to make the choice explained here.
Making the choice. You should attach a statement signed by both spouses to your joint return for the year of the choice. The statement must contain the following information.
A declaration that you both qualify to make the choice and that you choose to be treated as U.S. residents for the entire tax year.
The name, address, and taxpayer identification number (SSN or ITIN) of each spouse. (If one spouse died, include the name and address of the person who makes the choice for the deceased spouse.)
You generally make this choice when you file your joint return. However, you can also make the choice by filing Form 1040-X, Amended U.S. Individual Income Tax Return. Attach Form 1040 or 1040-SR and print "Amended" across the top of the corrected return. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.
You must generally file the amended joint return within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later.
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