What is IRS Form 8843?

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The Internal Revenue Services (IRS) first released Form 8843 in 1993 and has revised it every year from 1993 through 2021. Form 8843 is titled “Statement for Exempt Individuals and Individuals with a Medical Condition” and its purpose is to explain foreign individuals’ basis for their claim that they can exclude days present in the United States for the purpose determining their tax residency status.  

How Does Form 8843 Work?

If you are a foreign alien in the United States, the IRS requires you to file Form 8843 in order to explain the basis of your claim that you can exclude days present in the United States for purposes of the substantial presence test because you: (1) an exempt individual or (2) were unable to leave the United States because of a medical condition or medical problem.

What is the Substantial Presence Test?

You are considered a United States resident if you meet the substantial presence test. You meet this test if you have been physically present in the United States at least: (1) 31 days during 2021; and 183 days during the period 2021, 2020, and 2019, counting all the days of physical presence in 2021 but only 1/3 the number of days of presence in 2020 and only 1/6 the number of days in 2019.

However, you do not count the following days of presence in the United States for purposes of the substantial presence test: (1) days you regularly commuted to work in the United States from a residence in Canada or Mexico; (2) days you were in the United States for less than 24 hours when you were traveling between 2 places outside the United States; (3) days you were temporarily in the United States as a regular crew member of a foreign vessel engaged in transportation between the United States and a foreign country or a possession of the United States unless you otherwise engaged in trade or business on such a day; (4) days you were unable to leave the United States because of a medical condition or medical problem that arose while you were in the United States; or (5) days you were an exempt individual.

How am I Exempt Under Form 8843?

Form 8843 considers (1) teachers or trainees, (2) students, and (3) professional athletes temporarily present in the United States to compete in a charitable sports event as exempt individuals. Form 8843 also considers those present in the United States as foreign government-related individuals under an A or G visa as exempt; however, visa class A-3 and G-5 are excluded. If you are not exempted you must count all of your days present in the United States for purposes of the substantial presence test.

For the sake of simple definitions, teachers or trainees are any individuals who are in the United States with a J or Q visa. However, in order to qualify the requirements for any of the 2 of the 6 prior calendar years, you must meet all 4 of the following conditions: (1) you were exempt as a teacher, trainee, or student for any part of 3 or fewer of the 6 prior calendar years; (2) a foreign employer paid all of your compensation during 2021; (3) you were present in the United States as a teacher or trainee in any of the 6 prior years; and (4) a foreign employer paid all of your compensation during each of those prior 6 years you were present in the United States as a teacher or trainee.

Likewise, Form 8843 has defined students as those holding an F, M, J, or Q visa. However, in order to satisfy this exemption for the purposes of the substantial presence test, you must also show that: (1) you maintained a closer connection to the United States than another foreign country, and (2) that you have taken affirmative steps to change your states from nonimmigrant to lawful permanent resident.

What qualifies as a medical condition or medical problem?

Any medical treatment, surgery, or procedure that would give you reason to stay in the United States until its termination qualifies as a medical condition or medical problem for the sake of Form 8843.

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*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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