US Virgin Islands — Presence Test: No More Than 90 US Days
Summary
- Limit
- No more than 90 days in the United States
- Window
- The tax year
- Breach at
- Day 91
- What counts as US
- The 50 states and DC only
- USVI days
- Not US days
- Status
- One of five alternative presence tests
- Basis
- 26 CFR §1.937-1(c)(1); IRS Pub. 570
The §937 presence test can be met by spending no more than 90 days in the United States during the tax year — an alternative to the more familiar 183-days-in-the-USVI route. "United States" here means the 50 states and the District of Columbia: days in the USVI or any other territory are not US days. This is one of five alternatives; failing it does not disqualify you if you pass another, and passing it still leaves the tax-home and closer-connection tests to satisfy.
Who it applies to
This matters most if you are:
- Claiming USVI bona fide residency but travelling too much to reach 183 USVI days.
- Splitting your year between St Thomas or St Croix and destinations outside the US entirely.
- A USVI EDC beneficiary needing a defensible presence position.
- In a Puerto Rico Act 60 position, where the same limb is available with the same arithmetic.
It pairs with — rather than replaces — the USVI bona fide residency (183 days) counter. Running both gives you two independent routes through the presence test.
The rule — and why it exists
26 CFR §1.937-1(c)(1) and IRS Publication 570 set out the presence test, which is met if the individual satisfies any one of five alternatives for the tax year:
- At least 183 days in the relevant territory.
- At least 549 days across the current and two preceding years, with at least 60 days in the territory in each of the three years.
- No more than 90 days in the United States during the tax year — the limb this counter tracks.
- No more than $3,000 of US-source earned income, plus more days in the territory than in the United States.
- No significant connection to the United States during the tax year.
The definition of "United States" is the load-bearing detail: IRC §7701(a)(9) limits it to the 50 states and DC. Territories are outside it, so your days on St Croix do not count against the 90, and neither do days in a foreign country.
Why it exists: the alternatives exist because a single 183-day rule would exclude people whose lives are genuinely centred in a territory but who travel internationally. The ≤90-US-days limb tests the same thing from the other side: not how much you are in the territory, but how little you are on the mainland.
Counting the days
You are counting days in the 50 states and DC, and you want the total to stay at or below 90.
- 1Count every day you were physically present in the 50 states or the District of Columbia during the tax year.
- 2Do not count days in the USVI, Puerto Rico, Guam or any other territory — they are not US days for this test.
- 3Do not count days in foreign countries either; they are neither US days nor territory days.
- 490 days is allowed. Day 91 fails this alternative — though not necessarily the presence test overall.
- 5Certain US days are legally excluded (transit under 24 hours, medical, student, disaster). Bounded counts them, so its figure runs slightly high — conservative for a cap.
Set the counter's region to the United States. It is the mirror image of the USVI counter: that one counts territory days upward toward 183, this one counts mainland days and keeps them down.
Examples
Example 1 — the traveller who passes anyway
Sofia lives on St Thomas but spends four months in Europe for work. Her USVI days come to 160 — short of 183 — but she spent only 35 days on the mainland. She meets the presence test through the ≤90-US-days alternative.
Example 2 — the mainland commuter
David keeps a USVI home but flies to Miami most weeks for his business, accumulating 140 US days. He fails this limb. If his USVI days reach 183 he still passes the presence test by the first alternative — but his tax home being in Florida is a separate and bigger problem for him.
Example 3 — territory days are not US days
Lena spends 100 days in Puerto Rico and 40 in New York while resident in the USVI. Only the 40 New York days count toward the 90. Her Puerto Rico time is irrelevant to this limb.
Exceptions & edge cases
- Excluded US days. Transit of less than 24 hours between two points outside the US, days you could not leave for a medical condition that arose while there, days as a student or certain officials, and declared-disaster days are excluded. Bounded does not model these, so it over-counts — safely.
- Day of presence is generous. Any part of a day present counts as a full day, including arrival and departure days. That cuts against you here, which is another reason to leave headroom.
- Tax home and closer connection remain. The presence test is one of three. Meeting it says nothing about where your main place of business is or where your ties lie.
- First and last year rules. Special rules apply in the year you establish or end residency, applying the tax-home and closer-connection tests only to part of the year.
- Puerto Rico parity. The identical limb applies to a PR Act 60 position — see Puerto Rico Act 60, where the 30-day travel carve-out is also relevant.
Common misconceptions
- "I need 183 USVI days and under 90 US days." No — these are alternatives. Any one of the five satisfies the presence test.
- "Days in Puerto Rico count as US days." They do not. "United States" here is the 50 states and DC.
- "91 US days disqualifies me." It fails this limb only. Check the other four before concluding anything.
- "Passing the presence test makes me a bona fide resident." It does not. Tax home and closer connection are separate, and usually harder.
- "A few hours in Miami between flights counts." Transit under 24 hours between two points outside the US is excluded by the regulations — though Bounded will still count it, so treat the app as the conservative figure.
Häufige Fragen
No. The §937 presence test is satisfied by any one of five alternatives, and these are two of them. Spending at least 183 days in the USVI is one route; spending no more than 90 days in the United States is another, independent route. You need one, not both — though many people comfortably satisfy several.
No. For this purpose 'the United States' means the 50 states and the District of Columbia, under IRC §7701(a)(9). The US Virgin Islands, Puerto Rico, Guam and the other territories are not part of it. Days on St Thomas, St John or St Croix are USVI days, never US days — which is precisely what makes this limb workable for someone living there.
You fail this particular alternative, not the presence test as a whole. If you also spent at least 183 days in the USVI, or meet the 549-day three-year test, the earned-income test, or the no-significant-connection test, you still pass. Failing all five is what ends the presence test — and even passing it leaves the tax-home and closer-connection requirements.
Some days are excluded. The rules exclude, among others, days you were in transit between two points outside the US for less than 24 hours, days you could not leave because of a medical condition that arose while you were there, days as a student or as certain elected or appointed officials, and days affected by a declared disaster. Bounded does not model these exclusions, so it counts a few days the IRS would not — the safe direction for a limit you are staying under.
No. Presence is one of three tests. You must also meet the tax-home test (your main place of business is in the USVI) and the closer-connection test (your closest ties are to the USVI rather than the mainland or a foreign country). All three have to hold for the same tax year.
The same §937 presence test with the same five alternatives applies to Puerto Rico and the other territories. This counter is titled for the USVI because that is where the request came from, but the ≤90-US-days limb works identically for a Puerto Rico Act 60 position — set the counter up the same way and read it against your PR facts.
The counter's region is the United States, not the USVI — you are counting days on the mainland, and the goal is to stay at or below 90 in the tax year. Pair it with the USVI Bona Fide Residency counter, which counts USVI days toward 183. The two look at different places and run in opposite directions.
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