I came US on 31st Dec. 206 on F-1 Visa. I file 1040A Form for 2007 Tax Return & I received $13.82 from IRS.

From 26th Dec. 2007 I start to work on OPT & my H1-B Start from 1st Oct. 2008. My Employer deducted Social Security & Medicare Taxes Starting from the beginning. But during OPT period they should not deduct SS & Medicare. So, I am going to file Form 843 for refund.

Now My question is:
Which form I need to file for Income Tax return for 2008? 1040NR or 1040?

My concern is;
1.If I file 1040, I think I can not get refund of SS & Medicare deducted during my OPT period though, I am still within 183 days.
2.If I file 1040NR, I already did mistake by filing 1040 last year.

So, What should I do to correct this mistake so that I can get refund of SS & Medicare during my OPT period?

I will really appreciate your help.

Thanks,
Bishnu Subedi
Dallas, Texas

1. You already file resident tax return for 2007, which was a mistake. You were nonresident. Read: Your U.S. Tax Return: U.S. Tax Filing Requirements for Non-Residents (http://taxipay.blogspot.com/2008/03/us-tax-filing-requirements-for-non.html)

2. In 2008, your employer deducted SS tax and Medicare tax on OPT income. If you file Form 8843, you will not get it back as you have already chosen to be treated as a resident.

3. Normally, you should amend your 2007 tax return. File Form 1040X with properly done non-resident tax return and Form 8843.

4. For 2008 you are nonresident if you are single. If you are married, you have other choices. Read about F1/H1-B tax filing: Your U.S. Tax Return: The U.S. Visas (http://taxipay.blogspot.com/2008/08/us-visas.html)

Thanks MukatA,
if I amend 2007 tax return filing 1040X with NR tax return and Form 8843, Can I claim for OPT period's SS & Medicare? As you mensioned if I file form 8843, I can not get back. So what should I do? I am married, my wife and 1 kid is with me. Please advise me.
Thanks for your help.
Bishnu

When you amend the 2007 return, you need to ask to have your non-resident alien status RE-INSTATED. Once the IRS acknowledges receipt of the amendment, your non-resident alien status is reinstated and then (and only then) you can submit Form 843 to recover the Social Security and Medicare taxes.