Voluntary Invoke Residency / First Year Choice Election

This option allows you to choose to be treated as a U.S. tax resident during the part of the year you spent in the U.S., even if you do not qualify for the substantial presence test for that year.

Foreigners who do not meet the criteria of the substantial presence test have the option to make a special election for their first year. This election allows them to be classified as resident aliens for tax purposes starting from their date of arrival, given they meet the following conditions:

• You are not considered a resident alien for the year in question or at any time during the previous year.
• You must be present in the U.S. for at least 31 consecutive days during the year in which you make the election.
• Additionally, you need to be present in the U.S. for a minimum of 75% of the total days starting from the beginning of the 31 days up until December 31 of the tax year.
• You are resident aliens under the substantial presence test for the following year.

Example:

Maria, a Spanish citizen, arrives in the U.S. on November 1, 2024, to start a new job. Let’s see if she qualifies for the first-year election:

Not a resident alien previously: Maria has never been to the U.S. before 2024, so she wasn’t a resident alien in 2023 (before her arrival).

31 consecutive days in 2024: From November 1 to December 31, 2024, Maria is present for 61 straight days. This is well over the 31-day minimum.

75% presence requirement: Starting from her 31-day period (November 1-December 1), she must be present for 75% of the days from November 1 through December 31, 2024. That’s 61 total days, so she needs to be present at least 75% of 61 days, which is 46 days. Here, Maria was present for all 61 days.

Substantial presence test for 2025: Maria continues working in the U.S. throughout 2025, efficiently meeting the substantial presence test (183+ days) for that year.

Conclusion: Maria qualifies for the first-year election. She can elect to be treated as a U.S. tax resident starting November 1, 2024, rather than waiting until 2025. This means she would file as a resident alien for the portion of 2024 from November 1st onward.