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Five Ways to Pass the Presence Test, and How to Tell Which One Is Yours
Most people think the presence test means 183 days in Puerto Rico. It is actually satisfied by any one of five conditions in 26 CFR 1.937-1(c). This guide covers all five and how to tell which one fits your travel year.
The presence test under IRC section 937 isn't a single 183 day count. 26 CFR 1.937-1(c) sets out five separate conditions. Meet any one of them and you satisfy the test. So if your travel year doesn't look like a clean 183 days on island, you may still be covered by one of the other four.
That matters most in a first partial year, in a year with unusual travel, or when you're defending a prior year and need to identify the right theory before building the day count argument. This guide walks through all five conditions, then shows you how to figure out which one actually describes your year.
What Is the Presence Test, and Why Five Ways to Pass It?
Bona fide residency in Puerto Rico under section 937 requires passing three separate tests: the presence test, the tax home test, and the closer connection test. This article covers only the first one. See the tax home and closer connection tests for the other two.
The presence test itself is defined at 26 CFR 1.937-1(a) and (c). The regulation gives five alternative conditions, and you only need to meet one for the taxable year. Think of the five conditions as five different shapes a travel year can take, not five requirements stacked on top of each other. A year that fails the first condition can still pass on the third, the fourth, or the fifth.
Condition One: The 183 Day Rule
The most familiar path: you were present in Puerto Rico for at least 183 days during the taxable year, per 26 CFR 1.937-1(c)(1) and restated in IRS Publication 570.
This condition fits someone who spends most of the calendar year on island with no unusual travel pattern layered on top. It's the simplest condition to document, since it comes down to a single number for a single year. See the 183 day rule for the full mechanics of what counts as a day and which exceptions apply.
Condition Two: The 549 Day Rule Over Three Years
If a single year falls short of 183 days, the three year alternative may still get you there. Under this condition you were present in Puerto Rico for at least 549 days across the taxable year and the two immediately preceding taxable years, provided you were also present for at least 60 days in each of those three years.
This fits someone whose day count moved around from year to year: an extended family trip or a medical stay off island, say, in one of the years. But the three year total still shows Puerto Rico as the center of the travel pattern. Read the 549 day alternative for the year by year math.
Condition Three: The 90 Day Rule in the United States
This condition flips the count. Instead of counting days in Puerto Rico, it caps days in the United States: no more than 90 days present in the United States during the taxable year, regardless of how the rest of the year was spent.
Picture someone who travels heavily outside both the United States and Puerto Rico, doing remote work from a third country or spending extended time abroad, and keeps mainland trips short. That's who this condition fits. See the 90 day option for how to count a U.S. day and which short visits don't count against the cap.
Condition Four: The Earned Income Condition
This condition pairs a dollar cap with a day comparison. Per IRS Publication 570, you had earned income in the United States of no more than $3,000 during the taxable year, and you were present for more days in Puerto Rico than in the United States that same year. The regulation traces this dollar figure back to the de minimis threshold in section 861(a)(3)(B), as described in 26 CFR 1.937-1(c).
Think of someone with limited U.S. source work income, a small amount of consulting or a handful of mainland speaking engagements, who still spends more of the year in Puerto Rico than in the United States even without reaching 183 days. Read the earned income condition for how to track U.S. source earned income against the cap.
Condition Five: No Significant Connection
The fifth condition is a catch-all, independent of any day count: you had no significant connection to the United States during the taxable year. This one is evaluated under its own factor test, not a calendar.
It fits someone who fails the day count math under the first four conditions but has genuinely reduced their U.S. footprint: no permanent home retained in the United States, no immediate family residing there. The factor list is detailed and fact specific. See the no significant connection page for the full breakdown of what counts as a connection and what doesn't.
How to Tell Which One Is Yours
Start with your travel calendar for the current year and the two years before it. Test the five conditions in order against your actual numbers, not your intended plan:
- Count days in Puerto Rico for the current year. If it is at least 183, you are done: condition one applies.
- If not, add the two prior years. If the three year total is at least 549, with at least 60 in each year, condition two applies.
- If neither day count works, check days in the United States. If that number is 90 or fewer, condition three applies.
- If you had limited U.S. earned income and still spent more days in Puerto Rico than in the United States, check condition four against the $3,000 figure.
- If none of the day-based conditions fit, review your remaining U.S. ties against condition five.
One caution: passing the presence test only clears the first of three tests. The tax home and closer connection tests still apply, and a passed presence test doesn't resolve either of them on its own. An automatic day ledger, which is what One83 keeps for you, turns this five-condition check into a lookup against your actual calendar instead of a manual recount every time a question comes up.
Frequently Asked Questions
Do I need to pass all five conditions of the presence test?
No. The presence test is satisfied by meeting any one of the five conditions in 26 CFR 1.937-1(c). Meeting more than one doesn't change the outcome. The test is pass or fail on a single condition, not cumulative across all five.
Which of the five conditions is easiest to satisfy?
It depends on your travel pattern, not a general ranking. Someone who stays close to 183 days in Puerto Rico every year usually finds condition one simplest to document. Someone with an uneven day count across years, heavy but sub-90-day mainland travel, limited U.S. earned income, or few remaining U.S. ties may find conditions two through five fit their year better. Reviewing your own calendar against each condition is the only reliable way to tell which one is yours.
Does passing the presence test alone make me a bona fide resident of Puerto Rico?
No. Bona fide residency under section 937 requires passing three separate tests: the presence test, the tax home test, and the closer connection test. Passing the presence test is necessary, but not sufficient on its own.
Can I qualify under a different condition each year?
Yes. The presence test is evaluated separately for each taxable year, so the condition that fits you can change from one year to the next as your travel and income pattern changes.
What counts as a day of presence in Puerto Rico?
Generally, any day you're physically present in Puerto Rico at any time during that day. Certain days spent in the United States don't count against your U.S. day totals under some of the conditions above, including short transit under 24 hours, qualifying medical treatment, and a Presidentially declared major disaster. See what counts as a day for the complete list of exceptions.
The Takeaway
The presence test has five doors, not one. Most people only know about the 183 day door, and assume they've failed the test the moment a single year comes up short. Before drawing that conclusion, run your actual travel numbers against all five conditions in 26 CFR 1.937-1(c). Once you know which condition fits your year, read that condition's detail page for the full mechanics, then confirm the tax home and closer connection tests separately before relying on any of it.
One83 is a tracking tool, not tax advice. Consult a licensed tax professional about your situation.