LumenAs an F-1 or J-1 student in the US, when do I become a tax resident?
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Days you spend in the US as a student on an F, J, M or Q visa, while substantially complying with it, don't count for the substantial presence test. After 5 calendar years as an exempt student, teacher or trainee, they count unless you show you don't intend to live permanently in the US. You file Form 8843.
Key facts
| What | The rule | Source |
|---|---|---|
| Who is an exempt student | Someone temporarily in the US on an F or M visa, or as a student on a J or Q visa, who substantially complies with the visa’s requirements | 26 U.S.C. 7701(b)(5)(D); IRS, Substantial presence test |
| Effect | Days as an exempt individual don’t count as days of presence for the substantial presence test | 26 U.S.C. 7701(b)(3)(D) |
| Limit for students | Not exempt in any calendar year after the 5th calendar year as an exempt teacher, trainee or student, unless you show you don’t intend to reside permanently in the US and you substantially comply with your visa | 26 U.S.C. 7701(b)(5)(E)(ii); Publication 519, ch. 1 |
| Limit for teachers and trainees (J or Q, not as students) | Not exempt if you were exempt as a teacher, trainee or student for any part of 2 of the 6 preceding calendar years; “4” replaces “2” where all compensation is from a foreign employer (with conditions) | 26 U.S.C. 7701(b)(5)(E)(i); Publication 519, ch. 1 |
| Family | Immediate family members of exempt students and teachers are also included | Publication 519, ch. 1 |
| Form | Form 8843 to exclude the days, attached to your return or mailed to the IRS if you don’t file one, by the Form 1040-NR due date | IRS, Substantial presence test; Publication 519, ch. 1 |
How the student exemption works
The law treats you as not present in the US on any day you are an “exempt individual”. Students on F, J, M or Q visas are exempt individuals as long as they substantially comply with the visa requirements. Publication 519 says you substantially comply if you haven’t done anything prohibited by immigration law that could cost you your visa status. As long as you are exempt, your days don’t count toward the 183-day substantial presence test, so you stay a nonresident for tax purposes.
After 5 calendar years
The exemption isn’t unlimited. Under the law, you lose it for any year after the 5th calendar year in which you were exempt as a teacher, trainee or student, unless you show that you don’t intend to reside permanently in the US and that you substantially comply with your visa. Publication 519 says this counts any part of a calendar year, and that the facts include whether you kept a closer connection to a foreign country and whether you took steps toward a green card. Once you are no longer exempt, your days count and you may meet the substantial presence test.
Teachers, researchers and trainees on J or Q visas
For people on J or Q visas other than as students, the window is shorter: you aren’t exempt in a year if you were exempt as a teacher, trainee or student for any part of 2 of the 6 preceding calendar years. Publication 519 describes an exception for up to 3 of the 6 years when a foreign employer paid all your compensation.
Filing Form 8843
The IRS says you must file Form 8843 to exclude these days. Attach it to your income tax return, or, if you don’t have to file one, send it to the IRS by the due date for Form 1040-NR. If you don’t file it on time, the IRS says you can’t exclude the days, unless you show by clear and convincing evidence that you took reasonable steps to comply.
Related questions
- Students who meet the substantial presence test may still be able to use the closer connection exception for students (IRS, Substantial presence test).
Sources
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This is general information, not legal advice, and Lumen is not a law firm. Rules change and offices differ: check the official sources above before you act. Found something wrong or out of date? Write to support@lumen.observer.