Foreign nationals are nonresident aliens for U.S. income tax purposes unless they meet one of two tests: 1) the U.S. lawful permanent resident test (also called the green card test) or 2) the substantial presence test. Foreign nationals who change immigration status during the calendar year, or who first enter the U.S. after January 1, can be part-year nonresident aliens and part-year resident aliens during the calendar year. These dual-status aliens are subject to the respective withholding and reporting rules based on their residency status. Special rules govern their dual-status tax returns. Married dual-status aliens might be eligible to make a marriage-based residency election (described in IRS Publication 519, U.S. Tax Guide for Aliens). Students and business apprentices from Barbados, Jamaica or Hungary (whether married or single) may make an election to be taxed as a resident.
Foreign nationals who are resident aliens under one of these two tests and who are tax residents of a tax treaty country may claim nonresidency status under the applicable tax treaty’s residency tiebreaker rule if their facts described on a Form 8833 support treaty-nonresidency status. Treaty-nonresidency status is only applicable for tax treaty purposes, with the result that treaty nonresidents must continue to comply with disclosure requirements based on their resident alien status under the Code.