First-Year Choice
If you do not meet either the green card test or the substantial presence
test for 2008 or 2009 and you did not choose to be treated as a resident for
part of 2008, but you meet the substantial presence test for 2010, you can
choose to be treated as a U.S. resident for part of 2009. To make this
choice, you must:
Be present in the United States for at least 31 days in a row in 2009, and
Be present in the United States for at least 75% of the number of days
beginning with the first day of the 31-day period and ending with the last
day of 2009. For purposes of this 75% requirement, you can treat up to 5
days of absence from the United States as days of presence in the United
States.
When counting the days of presence in (1) and (2) above, do not count the
days you were in the United States under any of the exceptions discussed
earlier under Days of Presence in the United States.
If you make the first-year choice, your residency starting date for 2009 is
the first day of the earliest 31-day period (described in (1) above) that
you use to qualify for the choice. You are treated as a U.S. resident for
the rest of the year. If you are present for more than one 31-day period and
you satisfy condition (2) above for each of those periods, your residency
starting date is the first day of the first 31-day period. If you are
present for more than one 31-day period but you satisfy condition (2) above
only for a later 31-day period, your residency starting date is the first
day of the later 31-day period.