Residency Starting Date under the First-Year Choice
If you do not meet either the green card test or the substantial presence test for the current year (for example, 2012) or the prior year (2011), and you did not choose to be treated as a U.S. resident for part of the prior year (2011), but you meet the substantial presence test in the following year (2013), you can choose to be treated as a U.S. resident for part of the current year (2012). 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, and
- Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of the current year. (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 count the days you were in the United States under any of the Days of Presence in the United States exceptions to the substantial presence test.
Note: You do not have to be married to make this first-year choice.
If you make the first-year choice, your residency starting date for the current year 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 the later 31-day period.
Example 1. Juan DaSilva is a citizen of the Philippines. He came to the U.S. for the first time on November 1, 2012, and was here on 31 consecutive days (from November 1 through December 1, 2012). Juan returned to the Philippines on December 1 and came back to the United States on December 17, 2012. He stayed in the United States for the rest of the year. During 2013, Juan was a resident of the United States under the substantial presence test. Juan can make the first-year choice for 2012 because he was in the United States in 2012 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 his 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 Juan makes the first-year choice, his residency starting date will be November 1, 2012.
You must attach a statement to Form 1040 to make the first-year choice for the current year. The statement must contain your name and address and specify the following.
- That you are making the first-year choice for the current year.
- That you were not a U.S. resident in the prior year.
- That you are a U.S. resident under the substantial presence test in the following year.
- The number of days of presence in the U.S. during the following year.
- 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.
- The date or dates of absence from the U.S. during the current year (that you are treating as days of presence under the first-year choice).
You cannot file Form 1040 or the statement until you meet the substantial presence test in the following year. If you have not met the test for the following year as of April 15 of that year, you can request an extension of time for filing your Form 1040 until a reasonable period after you have met that test. To request an extension to file until October 15 of the following year, 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 all of 2012. 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.