Chipping Away at the Day Count: Qualifying as an "Exempt Individual" or for the "Medical Exemption"

Previously, we discussed two possible remedies to the Substantial Presence test—the Closer Connections exception (general) and the Closer Connections exception specific to Foreign Students. Those exceptions work by setting aside an otherwise valid substantial presence determination. The following two remedies, however, work differently. Rather than setting aside a substantial presence finding, they allow the individual to exclude days from the day count computation which in turn could result in the individual never having had substantial presence in the U.S.

Exemption 1: Medical Exemption

You can exclude days present in the U.S. if you were unable to leave the U.S. because of a medical condition or medical problem. To claim the exemption, you must file Form 8843 by June 15th.

Exemption 2: Exempt Individual

Don’t count days if you are an exempt individual. You are an exempt individual if you were: (1) Temporarily present in the U.S. as a foreign government-related individual under an “A” or “G” visa, except for those with an “A-3” or “G-5” class visa; (2) A teacher or trainee temporarily in the US under a “J” or “Q” visa, who substantially complied with the requirements of the visa; (3) A student temporarily present in the US under an “F”, “J”, “M” or “Q” visa, who substantially complied with the requirements of the visa; or (4) A professional athlete temporarily in the U.S. to compete in a charitable sports event. To claim the exemption, you must file Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition, with your tax return. If you do not have to file an income tax return, send Form 8843 to the address indicated in the instructions for Form 8843 by the due date for filing an income tax return.

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