Nonresident status duration and FICA – Money & Services

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Hi,

Is it true that as long as you file the Form 8843, you can keep your nonresident status for tax purposes? I did my OPT after 5 years as a student, and did not realize that you don’t have to pay FICA taxes as a F-1 holder (so I did pay the taxes), and am now trying to figure out if I can file the 843 and 8316 forms. The FICA taxes paid are from 2007. Any help would be appreciated, thank you!

Answer

If you filed Form 1040NR or 1040NR-EZ plus Form 8843 in both 2007 and 2008 while on OPT, plus returned to your home country after the OPT was completed, then (and only then) will you have a chance to recover the FICA taxes.

The IRS position is that, after five calendar years under a F-1 visa, the “student” is considered to be a resident alien starting in the sixth year UNLESS he/she shows a closer connection to his/her home country. This is shown by submitting Form 8840 with the non-resident tax return (Form 1040NR or 1040NR-EZ) and the Form 8843.

Failing to submit Form 8840 in 2007 and 2008 does not cause you to forfeit your non-resident alien status, but if you converted to an H-1 or H-1B visa at the end of your OPT period, you have effectively revoked any argument that you have maintained a closer connection to your home country.

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