Hi,

I am on H1B and applied for green card both I140 and I485 for me and my wife. My wife is currently on F1-OPT till September 2010 (starting October 2009). I applied for green card in October 2009. My wife's employer is presently deducting the FICA and Medicare taxes along with federal and state taxes from her pay check. Now my questions are:

1. We spent money for her tution and plan to file jointly to get the tution tax benefits. If we do this can we retrieve her FICA and medicare taxes.

Also she did not yet get the green card application based EAD (Employment authorization document) card. Will she be treated as she is on F1-OPT based EAD (for tax purposes) until USCIS issue her the green card based EAD. What do think will be her tax status for the year 2009 and 2010.

Your response is highly appreciated . Thank you very much and Have a very Happy New Year 2010.

Thank you..

Your wife is currently exempt from FICA (Social Security and Medicare) taxes. You can download IRS Pub 519 from Internal Revenue Service and print out pages 50-51 to show her employer.

With those pages from IRS Pub 519 in hand, she should go to her employer and politely ask tha they refund the improperly-withheld FICA taxes for 2009 and STOP withholding these taxes until her F-1 visa expires.

Her FICA tax exemption is good EVEN IF she files jointly with you. This is clearly shown at the IRS link below:

Nonresident Spouse Treated as a Resident (http://www.irs.gov/businesses/small/international/article/0,,id=96370,00.html)

If the employer refuses to refund the FICA taxes (which MAY happen even though the employer gets a refund as well), then she must submit Form 843 and 8316 to request the refund direct from the IRS.

However, all this MUST be done BEFORE you file jointly, because, once the joint filing is done, the IRS will NOT honor any FICA tax refund request via Form 843.

Your wife is currently exempt from FICA (Social Security and Medicare) taxes. you can download IRS Pub 519 from Internal Revenue Service and print out pages 50-51 to show her employer.

With those pages from IRS Pub 519 in hand, she should go to her employer and politely ask tha they refund the improperly-withheld FICA taxes for 2009 and STOP withholding these taxes until her F-1 visa expires.

Her FICA tax exemption is good EVEN IF she files jointly with you. This is clearly shown at the IRS link below:

Nonresident Spouse Treated as a Resident (http://www.irs.gov/businesses/small/international/article/0,,id=96370,00.html)

If the employer refuses to refund the FICA taxes (which MAY happen even though the employer gets a refund as well), then she must submit Form 843 and 8316 to request the refund direct from the IRS.

However, all this MUST be done BEFORE you file jointly, because, once the joint filing is done, the IRS will NOT honor any FICA tax refund request via Form 843.


Hi AtlantaTaxExpert,

Thanks for the answer. If I understand properly, first I should file Form 843 and 8316 to request refund direct from the IRS. Once, I get the refund for FICA taxes for her, then I can file jointly. Please let me know.

Another question is,when I file jointly, Can I claim her tax exempt (Based on Tax treaty: Country India) as this is her first year of OPT. Please let me know.

Thank you,

Yes, you have it right. Try to get the refund from the employer FIRST (the IRS requires this), then submit the Form 843 and 8316 if necessary. Once you get the FICA taxe refund, then (and only then) do you file jointly with your wife.

The treaty exemption you speak of is the standard deduction, which you get anywait when you file jointly. You CANNOT claim the standard deduction more than once.

Yes, you have it right. Try to get the refund from the employer FIRST (the IRS requires this), then submit the Form 843 and 8316 if necessary. Once you get the FICA taxe refund, then (and only then) do you file jointly with your wife.

The treaty exemption you speak of is the standard deduction, which you get anywait when you file jointly. You CANNOT claim the standard deduction more than once.

Dear AtlantaTaxExpert,

What if I cannot get reimbursed by the employer. Can I directly file with IRS and get the FICS taxes back. Please let me know.
Thanks & Happy New Year