US tax residency: the 183-day rule
Even if you visit the US as a "snowbird", or as a B1 / B2 visa holder, or simply as a tourist, you may be considered by the US tax administration as a US tax resident if you meet the 183-day rule.
How to calculate your days: the Substantial Presence Test
To figure out if you meet the 183-day rule, you calculate your days using a weighted average over 3 years: the current year and the previous 2 years. If the calculation returns a number greater than 183, you are considered a U.S. tax resident by default.
How to calculate your days: https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test
Days excluded from the calculation
Certain days are not taken into account for the calculation, for example:
1. Days when you worked in the US and commuted from a residence in Canada or Mexico.
2. Days when you were in the US less than 24 hours while in transit between two countries
3. Days when you were temporarily in the US as a member of the travel crew between the US and a foreign country
4. Days when you were unable to leave the US for medical reasons
5. Days when you were an exempt individual - such as: (a) an individual connected to a foreign government, (b) a professor or intern, (c) a student, or (d) a professional athlete at a charity sporting event.
To exempt those days from the calculation, a request must be made by filing Form 8843. To learn more about the form: https://www.irs.gov/pub/irs-pdf/f8843.pdf
If you exceed 183 days over the 3 years: Closer connection
In this case, you will have to establish you have a closer connection to another foreign country.
You will be considered to have closer proximity to a foreign country if you have maintained more meaningful contacts with that country than with the US. To qualify for the closer connection, a request must be made by filing Form 8840.
To learn more about Form 8840: https://www.irs.gov/pub/irs-pdf/f8843.pdf
If you exceed 183 days in the current year: Tax treaty tie breaker
If you have resided more than 183 days in the US during the current year, you will have to invoke the provision clause of the tax treaty between the US and your country of residence. The tax treaty clause lists the criteria taken into account to establish the place of residence, such as: (1) the location of economic interests (place of work), or (2) the location of personal interests (family residence, vehicles , bank accounts).
To find out more about tax treaties: https://www.irs.gov/businesses/international-businesses/united-states-income-tax-treaties-a-to-z
How the US agencies check your days: I-94 records
Since 2014, an international collaboration and information exchange agreement allows the US administration to know exactly when a person entered or left the country. It is therefore important to consult your travel history on the US Department of Homeland Security to track your days in the US.
How to retrieve your I-94 travel history - https://i94.cbp.dhs.gov/I94/#/home
As always, the views contained in this article are not tax or legal advice and are not a substitute for consulting with a tax professional. Karine Bauer, EA is an Enrolled Agent licensed by the Treasury Department with unlimited rights to represent taxpayers before the Internal Revenue Service. She is an experienced tax professional with more than 20 years of international experience.
Bear in mind the date of this article as tax laws change over time.
Updated: August 17th, 2020