Contractor vs Employee in 2026: The US Guide for Founders and Finance Teams
Contractor or employee in 2026? IRS common-law test, DOL economic-reality test, and state ABC tests, with the live status of the Feb 2026 DOL NPRM.
Reviewed by Rohan Sasne on Apr 24, 2026
A nonresident alien is an individual who is not a US citizen or US national and who has not passed either the green card test or the substantial presence test. An NRA is generally taxed by the US only on US-source income and gives a US payer Form W-8BEN to establish foreign status.
A nonresident alien, often shortened to NRA, is a foreign individual whom the US taxes only on income from US sources rather than on worldwide income. The IRS defines the term on its Nonresident Aliens page: “An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test.” For a US company paying a foreign contractor, this status is the starting point that decides what documentation to collect and how, or whether, to withhold.
Alien tax status turns on two tests, set out by the IRS on its Determining Alien Tax Status page.
An individual who is not a US citizen or US national and who meets neither test is a nonresident alien for that tax year. Meeting either test makes the individual a resident alien instead, taxed like a US citizen on worldwide income.
The US taxes a nonresident alien only on US-source income, and it splits that income into two categories. The IRS explains both on the Nonresident Aliens page.
A single individual can have both kinds of income in the same year, each taxed under its own rule.
A nonresident alien receiving US-source income gives the US payer Form W-8BEN to certify foreign status and claim any reduced withholding under an income tax treaty. By contrast, a foreign individual who meets the green card or substantial presence test is a resident alien and provides Form W-9, the same form a US person uses. The W-8BEN on file is what supports applying a treaty rate, or confirming foreign-source income, instead of the 30 percent default.
Omnivoo Contract Management checks each foreign contractor’s status and W-8BEN documentation, so US-source payments are sorted by the right tax rules from the first payment onward.
TDS, professional tax, and Form 16 filings handled inside one payroll workflow.
Form W-8BEN is the IRS certificate a non-US individual gives a US payer to establish foreign status and claim any reduced withholding under an income tax treaty.
NRA withholding is the chapter 3 regime under Internal Revenue Code sections 1441 through 1443 that requires a US withholding agent to deduct tax, generally at a 30 percent statutory rate, from US-source FDAP income paid to a nonresident alien or foreign entity, unless a treaty or other exemption reduces the rate.
The substantial presence test is the IRS day-count rule that determines whether a foreign individual is a US resident alien for tax purposes. An individual meets it if present in the US at least 31 days in the current year and at least 183 days over a three-year weighted count: all current-year days, one-third of prior-year days, and one-sixth of days two years prior.
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