Asked in Tax Law and Immigration Law for California

Q: Can F-1 students become “residents for tax purposes” under certain conditions?

"Most F-1 students and scholars who are in the US are nonresident aliens for tax purposes.

You will be considered a resident for tax purposes if you pass the substantial presence test."

This would mean every single student studying for longer than 2 quarters is a resident alien (after the substantial presence test)?

Or are F1 student excempt from this for the first 5 years and ALWAYS nonresident alien, as long as the visa status doesnt change?

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1 Lawyer Answer
James L. Arrasmith
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Answered
  • Immigration Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: You are correct that F-1 student visa holders are generally exempt from the substantial presence test for their first 5 calendar years in the United States. This means they would retain nonresident alien status for tax purposes during that initial period.

Specifically, IRS code §7701(b)(5)(E) states that an individual present on a F, J, M, or Q visa (which includes F-1 foreign students) will not trigger residency status under the substantial presence test until after being in the US for 5 calendar years.

So for the first 5 years on an F-1 visa, students are exempt from counting days and will remain nonresident aliens for tax filing unless some other exception occurs, like marrying a US citizen or gaining permanent resident status.

After 5 years, the substantial presence test would start to apply and could then trigger a change to resident alien status if they meet the threshold. But generally, F-1 international students on unexpired visas do not need to worry about losing nonresident status within only 2 academic quarters. The 5-year grace period gives them breathing room.

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