Parents Visiting From China: Do Their Days Count for U.S. Tax?
Your parents are planning a long stay with you, and a relative says visitor days do not count toward U.S. tax. Generally they do: B-2 visitors are not "exempt individuals" under the substantial presence test. Whether your parents become U.S. tax residents depends on a three-year day count, a possible closer connection to China, and any green card step already filed.
Short answer
Days your parents spend in the United States on a B-2 visa generally count toward the substantial presence test. You may hear that visitor days do not count, but the IRS list of exempt individuals does not include visitors. Whether they actually become U.S. tax residents depends on the three-year count, whether they can claim a closer connection to China, and any green card steps already taken.
Key facts and figures
- Yes, B-2 days generally count. B-2 visitors are not "exempt individuals" under the substantial presence test (IRS, verified Oct 15, 2026).
- The test: at least 31 days this year, and 183 days using all of this year's days plus 1/3 of last year's and 1/6 of the year before (IRS, verified Oct 15, 2026).
- Parents present fewer than 183 days in the year may avoid residency with Form 8840, but we treat a pending or earlier-filed I-130 or similar green card filing as disqualifying (IRS, verified Oct 15, 2026).
- The U.S.-China treaty has no automatic tie-breaker for individuals; Article 4(2) leaves dual residence to the competent authorities (Treaty and Protocol, verified Oct 15, 2026).
How the substantial presence test counts days
A foreign national meets the test for 2026 if present in the U.S. at least 31 days in 2026 and at least 183 days over 2024 through 2026, counting all 2026 days, 1/3 of 2025 days and 1/6 of 2024 days (IRS, verified Oct 15, 2026). Days that generally do not count include days in transit for less than 24 hours, days you cannot leave because of a medical condition that arose in the U.S., and days as an exempt individual (Pub. 519, verified Oct 15, 2026). The medical exclusion must be claimed on Form 8843 (Form 8843).
The exempt categories are foreign government-related individuals on A or G visas (with some exceptions), teachers or trainees on J or Q visas, students on F, J, M or Q visas, and professional athletes at charitable sports events (IRS, verified Oct 15, 2026). A B-2 visa is not one of them.
Illustrative examples
| Scenario (illustrative numbers) | 2026 / 2025 / 2024 days | Weighted total | Result |
|---|---|---|---|
| A: regular long visits | 120 / 120 / 120 | 120 + 40 + 20 = 180 | Below 183. Not a resident under the test. |
| B: longer stays | 150 / 150 / 120 | 150 + 50 + 20 = 220 | Meets the test. Under 183 days in 2026, so Form 8840 may be available. |
| C: helping with a newborn | 200 / 90 / 60 | 200 + 30 + 10 = 240 | Meets the test. 183 or more days in 2026, so the closer connection exception is not available. |
The closer connection exception (Form 8840)
Someone who meets the test can still be treated as a nonresident if, for the year, they were present fewer than 183 days, kept a tax home in a foreign country for the entire year, and had a closer connection to that country than to the U.S. (IRS, verified Oct 15, 2026). Facts include the location of the permanent home, family, belongings, bank accounts, driver's license and voter registration.
- Green card steps: the exception is not available to someone who applied, or took other affirmative steps, to become a lawful permanent resident, or who has an application pending. The IRS closer connection page lists Forms I-508, I-485, I-130, I-140, ETA-750 and OF-230 as indications of that intent when filed during or before the year in question (IRS, verified Oct 15, 2026). An I-130 is filed by the petitioner, so a parent is only the beneficiary, and the IRS does not say how that is treated. We treat a pending or earlier-filed I-130 as disqualifying.
- Timing: attach Form 8840 to Form 1040-NR if filing. If not filing, mail it by the 1040-NR due date including extensions (Form 8840 (2025 instructions; 2026 form in draft)). For 2026 with no wages subject to U.S. withholding, that is generally June 15, 2027 (the 15th day of the sixth month after year-end; Pub. 519, verified Oct 15, 2026; date calculated by COOP).
- Missing it matters: without a timely Form 8840, the exception generally cannot be claimed unless there is clear and convincing evidence of reasonable efforts to comply.
When the closer connection exception does not apply
In Scenario C, a parent who is also a China tax resident may be a dual resident. Article 4(2) of the U.S.-China treaty has no tie-breaker tests: the competent authorities determine residence through consultations, and the treaty's Protocol says they are to be guided by the UN Model Convention's residence rules (Treaty and Protocol, verified Oct 15, 2026). The IRS says a dual-resident taxpayer claiming treaty benefits files Form 1040-NR with Form 8833 (Pub. 519, verified Oct 15, 2026). Failing to disclose a treaty-based position can carry a $1,000 penalty per failure (IRC §6712), and competent authority assistance is available under Rev. Proc. 2015-40. This is a facts-heavy position, and the China side is covered in our China overseas-income coordination guide.
Becoming a U.S. resident generally brings worldwide income into U.S. tax and can trigger FBAR and Form 8938 reporting. See our FBAR and FATCA guide.
California is a separate question
California applies its own residency rules. The FTB says you are presumed (rebuttably) a resident for any year in which you spend more than nine months in California, and that presence for other than a temporary or transitory purpose can make you a resident (FTB Pub. 1031 (2025), section H, verified Oct 15, 2026; the presumption can be overcome by satisfactory evidence of a temporary or transitory purpose, R&TC §17016). The FTB also notes that federal treaty benefits generally do not limit California tax, and that treaties that expressly limit themselves to federal income taxes do not apply to California (FTB Pub. 1031 (2025), section K, verified Oct 15, 2026). For most visiting parents the issue is narrow, but long stays deserve a look.
Practical steps for 2026 visits
- Keep a day log with entry and exit dates (the CBP I-94 travel history is a useful cross-check).
- Run the three-year count before booking long stays around holidays or a new baby.
- If a green card petition is planned, tell us before the visit, because the filing changes the tax analysis. Whether and when to file is an immigration decision for your attorney. Our pre-immigration planning guide covers the move itself.
- If your parents hold U.S. stocks or property, also read the $60,000 nonresident estate-tax issue.
Frequently asked questions
Are days on a B-2 visitor visa excluded from the substantial presence test?
No. The IRS list of exempt individuals covers certain A and G visa holders, students and teachers on F, J, M or Q visas, and professional athletes at charitable events. B-2 visitors are not on the list, so their days generally count (IRS, verified Oct 15, 2026).
My parents will be here 150 days in 2026. Will they become U.S. tax residents?
It depends on the prior two years. The test counts all current-year days, 1/3 of last year's days and 1/6 of the year before. If the total reaches 183 and they were here at least 31 days this year, they meet the test, though they may qualify for the closer connection exception if under 183 days this year (IRS, verified Oct 15, 2026).
What is Form 8840 and when is it due?
Form 8840 is the Closer Connection Exception Statement for Aliens. If no U.S. return is required, the IRS says to mail it by the due date for Form 1040-NR, including extensions. For filers without U.S. wages that is generally the 15th day of the 6th month after year end, so June 15, 2027 for 2026 (Form 8840 (2025 instructions; 2026 form in draft), Pub. 519, verified Oct 15, 2026; date calculated by COOP).
We filed an I-130 for my parents. Can they still use Form 8840?
Generally no. We treat a pending or earlier-filed I-130 as disqualifying. The IRS closer connection page lists Form I-130, among others, as an indication of intent to become a permanent resident when filed during or before the year in question. An I-130 is filed by the petitioner, so a parent is only the beneficiary, and the IRS does not say how that is treated (IRS, verified Oct 15, 2026).
Does the U.S.-China treaty decide residency if they are residents of both countries?
Not automatically. Article 4(2) of the U.S.-China treaty has no tie-breaker tests: the competent authorities determine residence through consultations, and the Protocol says they are to be guided by the UN Model Convention's residence rules. A dual-resident taxpayer claiming treaty benefits files Form 1040-NR with Form 8833, and failing to disclose a treaty-based position can carry a $1,000 penalty per failure (Treaty and Protocol, Pub. 519, verified Oct 15, 2026; IRC §6712).
Talk it through
If you would like us to review your parents' day counts and filing options, you are welcome to book a consultation. See our cross-border family tax services.
Primary sources
General information. This article covers U.S. federal and California tax only and is general information, not advice for your situation. COOP does not advise on immigration law. A tax filing, including Form 8840 or Form 8833, can have immigration consequences that are outside our scope, so consult an immigration attorney before taking a tax position that touches your parents' visa or green card status. Results depend on your facts, and law and guidance can change.