Hi!

1. I worked for my current employer under OPT from MAY 2007 to OCT 2007. On OCT1st my H1B was approved. I didn't get it stamped until JAN 2008. Because my status changed in OCT 2007 I filed my 2007 taxes as a Resident (1040). I read a response to a similar question by Atlanta Tax Expert and came to know that I must have filed a 1040NR. Is this correct?

2. During my OPT days with my employers they erroneously charged me Medicare and Social Security Taxes (between May 07 and Oct 07). I filed a Form 843 with the required documentation to get that back but they have responded saying that since they don't find a 1040 NR filing in 2007, they can't refund those taxes to me.

I have tried asking my employer to return the money but I can't get through the wretched Human Resources and talk to someone who understands this.

What should my next step be?

1) Yes, that is correct. On 31 Dec 07, you had NOT YET met the Substantial Presence Test, so you should have filed either Form 1040NR or 1040NR-EZ plus Form 8843 one last time.

2) That is the typical IRS response when you file as a resident alien, then apply for the FICA tax refund.

You first need to amend your 2007 tax return, attaching a properly-prepared Form 1040NR-EZ and Form 8843 to Form 1040X and specifically request that they reinstate your non-resident alien status for 2007.

Once the amendment is processed, then you can re-submit Forms 843 and 8312 to request the refund of the FICA taxes.

If you need professional help to do this, email me at [email protected].