I came to US in 2000 with F-1 status. I got my OPT in July 2003. In Feb 2004, I got my H-1 visa. In the past three years, I did not leave the US for vacation for more than a month. Should I file tax return as resident status or dual status? I get confused for my status as last year is my first year to get H1 visa and stayed more than 183 days.

AtlantaTaxExpert

Kkm:

For the first four years, you need to file Form 1040NR/1040NR-EZ and Form 8843. Tax Year 2003 was the last year you filed these forms. For 2004, you file the normal Form 1040/1040A/1040-EZ, because you meet the Substantial Presence Test.

For 2000 through 2003, you were an "exempt individual", which is why the Form 8843 is required.

kkm

Thanks for your prompt response. As I said in my previous question, my situation is that I was in 1 month of F-1 status (even I was under OPT in January) , and then started in February, I got my H1. I want to make sure do I have to file dual status because last year was my first year to get H1? Or I can just go ahead to file 1040, 1040A or 1040EZ? I always get confusion for H1 visa holders tax filing.

AtlantaTaxExpert

Kkm:

You are not only one confused. I have read and re-read Pub 519 and the 2004 instructions for Form 1040NR, and I cannot find specific guidance on this issue. In your case, you met the Substantial Presence Test, so I am inclined to believe that this year is not a dual-status tax year for you.

However, I am not sure. For this reason, I have queried my parent organization (the National Association for Tax Professionals) and asked the following question:

If students/trainees under F-1 visas who convert to H-1 visas early enough in 2004 to meet the Substantial Presence Test, must they treat tax year 2004 as a dual-status year??

I expect an answer not later than Wednesday evening. Once I get that answer, I will post a synopsis on this forum.

kkm

Thanks for your reply again. I look forward to your reply after you get the answer from your parent organization.

AtlantaTaxExpert

See my separate posting on this issue!