Is a Pending Asylum Applicant a Resident Alien?
Understand how time spent in the U.S. while an asylum case is pending can define your tax residency and affect your annual filing obligations.
An individual’s status for U.S. tax purposes is determined by Internal Revenue Service (IRS) rules, which are distinct from immigration laws. This means that how the Department of Homeland Security classifies a person does not automatically dictate their tax filing obligations. For individuals physically present in the United States while seeking protection, their situation is defined as having a “pending asylum” application. This period begins when they file their application and continues until a final decision is made.
The Substantial Presence Test
To determine tax residency, the IRS uses the Substantial Presence Test (SPT). Passing this test classifies an individual as a “resident alien” for tax purposes for a given calendar year. The test has two conditions, the first being the 31-day test, which requires physical presence in the U.S. for at least 31 days during the current tax year.
The second condition is the 183-day test, which uses a calculation looking back over three years. It adds all days of physical presence in the current year, one-third of the days from the first preceding year, and one-sixth of the days from the second preceding year. If this total is 183 days or more, and the 31-day test is met, the individual is considered a resident alien.
For example, if an individual was present for 120 days in the current year, 150 days in the prior year, and 180 days in the year before that, the calculation is 120 + 50 (1/3 of 150) + 30 (1/6 of 180). The total of 200 days exceeds the 183-day threshold, so the individual meets this part of the test.
How Asylum Status Affects the Day Count
Days an individual is physically present in the U.S. while their asylum application is pending are counted towards the Substantial Presence Test. Unlike some other immigration categories, an individual with a pending asylum claim is generally not considered an “exempt individual.” This term refers to those whose days of presence do not count toward the SPT.
If an individual’s status changes, the rules can shift. For instance, a person who entered on an exempt F-1 student visa would not have their days counted while maintaining that status. However, once that exempt status ends or is violated, their days of presence begin to accumulate for the SPT calculation.
Filing an asylum application establishes an intent to remain in the country, which aligns with the principles of the Substantial Presence Test. The test identifies individuals with a significant connection to the U.S., and a pending asylum case is an indicator of such a connection.
Tax Obligations Based on Residency Status
An individual classified as a resident alien is taxed like a U.S. citizen and must report their worldwide income to the IRS. This income from all sources, both inside and outside the U.S., is reported on Form 1040, the U.S. Individual Income Tax Return.
Conversely, an individual who does not meet the Substantial Presence Test is classified as a nonresident alien. They are generally required to report and pay tax only on their income from U.S. sources using Form 1040-NR, U.S. Nonresident Alien Income Tax Return.
Required Information for Filing Taxes
Filing a tax return requires a valid taxpayer identification number. A Social Security Number (SSN) is available to those granted work authorization, which includes many asylum applicants with a pending case and a work permit.
Individuals not eligible for an SSN can apply for an Individual Taxpayer Identification Number (ITIN), a nine-digit number issued for tax processing. To apply, one must complete Form W-7, Application for IRS Individual Taxpayer Identification Number. This form requires proof of foreign status and identity, and a valid foreign passport is the most common document used for this purpose.
The Process for Obtaining an ITIN
There are three methods to submit the Form W-7 application package. The first is to mail the completed form, federal tax return, and original or certified identity documents to the IRS service center in Austin, Texas. A second option is to use an IRS-authorized Certifying Acceptance Agent (CAA), who can verify documents so originals do not need to be mailed. The third method is to make an appointment at a designated IRS Taxpayer Assistance Center (TAC) for in-person document verification. After submission, processing takes several weeks, and the IRS will mail the ITIN to the applicant.