Hi,

I am an alien from India working on OPT with an approved H1B petition in US. My H1B starts from October 1, 2009. I have 3 questions regarding my Tax filling for 2010.

1. Should I file my taxes as a F1 student or H1B worker for 2010? 1040 NR or 1040 NREZ?
2. Do I need to allow FICA taxes to be deducted from my pay check if I file 2010 taxes as a F1 student? Should I ask my employer to stop deducting FICA taxes?
3. Can I claim US-India Tax Treaty benefit deductions in 2010 tax filing?

Thanks
AKM

AKM:

1) If you are single, you need to file as a non-resident alien, filing Form 1040NR or 1040NR-EZ plus Form 8843 one last time. If you are married, you have the OPTION of filing jointly with your spouse and you BOTH choose to be treated as resident aliens for all of 2009. In order to do this, you must wait until about 1 June 2010 to file.

2) You become liable for FICA (Social Security and Medicare) taxes starting on 1 October 2009. If your employer has been withholding these taxes during your OPT period, download IRS Pub 519 and print out pages 51-52. That details the fact that you are NOT liable for these taxes while on OPT, and you can show that yto your employer and ask for the improperly-withheld FICA taxes be refunded to you. F they refuse, you can request a refund from the IRS by filing Form 843 in January 2010.

3) Yes, you can claim the treaty benefits on your Form 1040NR-EZ.