I am currently on F1 visa status and non-resident for tax purposes. My status will change to H1 on October, 1st. I started my job in February and my employer has been cutting social security and medicare taxes from the beginning. I requested them to not cut my taxes as I am on OPT. However, they refused to do so and told me to get it back directly from IRS.
I am currently single but I am going to get married in October and my to be husband is resident for tax purposes as he had come to US more than 5 years ago and he is on F1 status. To get the money back P519 states that we need to have W2 as a supporting document while filing form 843. If I wait for form W2 and file form 843 with my tax returns in January 2011 then I won't be able to file jointly. As my to be husband is resident alien for tax purposes and if I file jointly I will be considered resident alien for the entire year. If I choose to file separately then I will have to pay extra federal income tax. Is there any way I will get social security and medicare taxes paid from February to September and file jointly at the end of the year.

Acube3:

You will initially have to file a separate return as a non-resident alien (Form 1040NR-EZ plus Form 8843), THEN file the Forms 843 and 8316 to get the FICA (Social Security and Medicare) tax refund, THEN amend your return to file jointly with your husband.

Theoretically, you should be able to file jointly with your husband and STILL get FICA tax refund, but, when evaluating the FICA tax refund request, the IRS takes the position that filing jointly makes you a resident and thus liable for the FICA tax.

I used to have clients file the Forms 843 and 8316 FIRST, wait to get the FICA tax refund, and THEN file jointly once they had the FICA tax refund safely in hand. However, the IRS now routinely checks to see how you filed your annual income tax return before processing the Form 843, so the requirement to file as a non-resident, then file the FICA tax refund, THEN amend the return is the current procedure that you MUST use.

QUOTE," . . . but the IRS takes the position that filing jointly makes you a resident and liable for the FICA tax. . . You will initially have to file a separate return as a non-resident alien (Form 1040NR-EZ plus Form 8843), THEN file the Forms 843 and 8316 to get the FICA (Social Security and Medicare) tax refund, THEN amned your return to file jointly with your husband."---Agreed; the best choice for you.