For non-resident aliens in particular, navigating the U.S. tax system may be a challenging undertaking. The substantial presence test, first-year residency, U.S. sourced income, effectively connected income (ECI), fixed, determinable, annual, or periodic (FDAP) income, income subject to the 30% or treaty withholding, issues pertaining to hiring non-residents, totalization agreements, and withholding requirements are just a few of the taxation regulations that apply to non-resident aliens that are covered in detail in this article. We will also go over the definitions of visas and how those who are temporarily in the United States are taxed.
People are divided into resident aliens and non-resident aliens under the U.S. tax system. While non-resident aliens are only taxed on their income that is sourced in the United States and that is directly related to a U.S. trade or company, resident aliens are taxed on their global income in the same way as U.S. residents.
If a taxpayer is a lawful permanent resident of the United States at any point throughout the calendar year, they are regarded as residents for tax reasons. The "green card" test is the name given to this. This status is often granted to them if they have received Form I-551, commonly referred to as a "green card," from the U.S. Citizenship and Immigration Service (USCIS), or if their foreign passport has an I-551 stamp on it while they are waiting for the real green card to be issued. Until it is voluntarily relinquished, abandoned, or terminated by the USCIS or a U.S. federal court, that status remains in effect. The day they arrive in the United States as a Lawful Permanent Resident or decide to be taxed as a resident alien for the first time is their residence beginning date.
The substantial presence test is a numerical formula used to determine whether an individual qualifies as a resident alien for tax purposes. To meet this test, an individual must be physically present in the U.S. for at least:
Example Scenario: if Eduardo spent 112 days in the U.S. in 2024, 119 days in 2023, and 136 days in 2022, he would calculate his days of presence as follows:
2024: 112 days
2023: 119 days * 1/3 = 39.67 days
2022: 136 days * 1/6 = 22.67 days
Total = 112 + 39.67 + 22.67 = 174.34 days
Since Eduardo does not meet the 183-day requirement, he would be considered a non-resident alien for tax purposes for 2024.
Non-resident aliens can elect to be treated as resident aliens for their first year of residency under the "First-Year Choice." This allows them to meet the substantial presence test one year earlier than usual. To qualify, the individual must:
Example Scenario : Maria is a citizen of Brazil. She came to the United States for the first time on October 15, 2023, and stayed continuously until November 20, 2023 (37 days). She then returned to Brazil for a short visit and came back to the United States on December 5, 2023, staying for the rest of the year.
Steps to Determine First-Year Residency:
Maria was present in the U.S. for 37 days (October 15 to November 20) + 27 days (December 5 to December 31) = 64 days. Since 64 days is more than 59 days, Maria meets the 75% requirement.
Maria meets both the 31-day and 75% requirements. Therefore, she can choose to be treated as a U.S. resident for part of 2023. Her residency starting date would be October 15, 2023, the first day of her 31-day period. She will be treated as a U.S. resident for the rest of the year 2023.
By making this choice, Maria will be considered a resident alien for tax purposes from October 15, 2023, through December 31, 2023, and will be taxed on her worldwide income for that period.
Non-resident aliens are taxed on their U.S. sourced income, which includes:
ECI refers to income earned by a non-resident alien from conducting a trade or business within the U.S. This income is subject to U.S. income tax and must be reported on a U.S. income tax return. ECI can include:
FDAP income refers to U.S. source non-business income paid to a foreign person or corporation that is not ECI. This can include:
FDAP income is subject to a 30% (or lower treaty) tax rate. Non-resident aliens receiving only FDAP income upon which the 30% (or lower treaty) rate has been withheld are not required to file a U.S. income tax return.
Non-resident aliens are subject to a 30% withholding tax on their U.S. sourced FDAP income unless a tax treaty between the U.S. and their country of residence provides for a lower rate. To claim a reduced rate or exemption under a tax treaty, non-resident aliens must file Form 8233 with their U.S. employer or withholding agent.
Employing non-resident aliens in the U.S. involves specific documentation and withholding requirements. Employers must ensure that non-resident aliens complete the necessary forms, such as:
Non-resident aliens cannot claim the standard deduction, except for students and business apprentices from India who meet certain conditions. Employers must follow special procedures outlined in IRS Notice 1392 and Publication 15-T for withholding calculations.
For non-resident aliens working for a U.S. employer but providing their services within their foreign country, the taxation and withholding rules are as follows:
In summary, non-resident aliens working outside the U.S. for a U.S. employer are not subject to U.S. income tax, withholding, or information reporting requirements. The U.S. employer treats them as independent contractors and can deduct the payments made to these workers as business expenses, thus not subject to payroll taxes or any information reporting requirements, which is huge benefit to U.S. employers.
International agreements known as "totalization agreements" are made between the United States and other nations in order to avoid paying two taxes on Social Security. These agreements guarantee that foreign workers in the United States do not pay the same amount of Social Security taxes in their home country as the United States. To claim an exemption under a totalization agreement, foreign workers must provide their U.S. employer with a certificate of coverage from their resident country.
U.S. employers may need to withhold federal income tax, Social Security, and Medicare taxes from the wages of non-resident alien employees working in the U.S., depending on the withholding requirements based on the employee's visa status and tax treaty benefits. Employers required to withhold payroll taxes must:
Visa Definitions and Taxation of Individuals Temporarily in the U.S. - The taxation of non-resident aliens also depends on their visa status. Common visa categories include:
Forms W-8BEN and W-8ECI serve distinct purposes for foreign individuals and entities dealing with U.S. income. Here's a breakdown of each form's purpose:
Form W-8BEN - is primarily for foreign individuals to establish their foreign status and claim benefits under tax treaties, and is used for the following purposes:
Form W-8ECI - is for foreign persons (individuals or entities) to claim that their income is effectively connected with a U.S. trade or business, making it subject to U.S. taxation.
Both forms are essential for ensuring proper tax treatment and withholding for foreign individuals and entities receiving U.S. source income.
Understanding the taxation rules for resident and non-resident aliens is crucial for both the individuals and their employers. Non-resident aliens must navigate the substantial presence test, first-year residency, U.S. sourced income, ECI, FDAP income, and income subject to the 30% or treaty withholding. Employers must be aware of the specific documentation and withholding requirements for non-resident alien employees, including totalization agreements and visa definitions. By following these guidelines, non-resident aliens and their employers can ensure compliance with U.S. tax laws and avoid potential issues.
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