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What is the substantial presence test?

Substantial presence test explained with the formula from IRS Publication 519, and why it matters for LLC owners who travel to the United States.

Amel Ouchene, IRS PTIN holder and CPA Candidate. October 19, 2026, 2 min read

The substantial presence test decides whether someone who is not a US citizen or green card holder is a US tax resident for the year. Owning a US LLC has nothing to do with it: only days physically spent in the United States count.

The formula

According to Publication 519, you meet the test if you were physically present in the United States on at least:

  1. 31 days during the current year, and
  2. 183 days during the 3-year period that includes the current year and the two before it, counting all days of the current year, 1/3 of the days of the previous year and 1/6 of the days of the year before that.

Publication 519 gives the example of 120 days in each of three years: 120 + 40 + 20 = 180 days, so the test is not met.

Why it matters

A US tax resident is taxed on worldwide income and files Form 1040, not Form 1040-NR. Exceptions and treaty tie-breaker rules exist; Publication 519 describes them. If you travel to the US often, count your days every year.

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Go further

20 min read

1040-NR Foreign LLC Owner: Do You Need to File?

Wondering if you must file Form 1040-NR as a foreign LLC owner? Learn how ECI, US trade or business status, and tax treaties affect your return.

Read the guide24 min read

Form 5472 Line-by-Line Guide for Foreign-Owned US LLCs

Learn how to fill out Form 5472 and pro forma Form 1120 for your foreign-owned single-member US LLC. Line-by-line guide, worked example, fax and mailing rules.

Read the guide

This article is general information about US tax rules for foreign-owned LLCs, not advice for your specific situation. Rules change; check the date above and ask before you file.