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.

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.

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.

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.

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

See my separate posting on this issue!