Hi.

Can anybody give me advice on this situation?
I found some similar cases, but they were not exactly same things I wanted to know.

Here is my situation.

I am from South Korea (single), and I came to US as a F1 student on 2005.
Until April 2007, I was on F1 (attended gaduate school). I paid the tuition by myself.

From May 2007 to Sep 2007, I was on F1 OPT, and started working on July 2, 2007.
Since that, I had US income.

On Oct 1st 2007, my visa status was changed from F1 to H1B.
And I have been in US continuously since last October.


1. If I file 1040NR, can I get $2000 exempt for Korean? (Or is this only for current students)?

2. I cannot meet SPT yet, but if I wait until the end of May, do I meet SPT? (92/3days (for 2007) + 152days (for 2008)) (but not before June?)

3. With filing an extension form first, when I meet SPT I can file 1040, right?
Even if I cannot claim standard deduction(5,850), is filing 1040 as a resident better than filing 1040NR as a non-resident?

4. If I file 1040, can I use my tuition I paid when I was on F1 staus as an itemized deduction('tuition and fee' or 'education credit')?

5. Is there any other default deductions or exemptions for 1040 filing?


Thank you for your help. :)

I just figiured out this. Is that right?

1. $2000 exempt is not applied for H1-B holder.

2. Not until the end of MAY

4. Now I know I cannot claim education credit either.
But how about tuition and fees deduction? Still applicable?

3. If there are no deduction items and above 4 is not applicable, it looks same as 1040NR

5. anything else?

For 2007 you can only file nonresident tax return. You don't have any other option since your are single. You can't file resident tax return even if you wait till you meet SPT tax in 2008.

Your income during OPT is exempt from FICA taxes. You must pay FICA during H1-B.

File 1040NR or 1040NR-EZ. You will get exemption deduction of $3,400, treaty deduction of $2,000, state tax deduction. You will also file form 8843. Nonresidents can't claim tuition fee deduction.

Thank you for your comment.

More questions here.

If I meet SPT, can't I file 1040 form (with 1040NR-EZ) as dual status alien?
On Publication 519(First year choice) I see that to make first year choice I don't have to be married .

And I heard that if I am on H1-B status I cannot get treaty decution of 2,000.
Is it not true?

Also I know non-residents can't claim tution fee deduction, but I am asking whether I can get tution fee deduction when I file a tax return as a dual status alien.
(Not eduction credit but tuition fee deduction on 1040)
IRS says I cannot take an education credit including standard deduction when I file a tax return for a dual status tax year, but doesn't say anything about tuition and fees deduction.

For Dual status you must be nonresident in the beginning of the year and resident at the end of the year.
You are nonresident. You will get $2.000 deduction as it includes OPT income.

Thanks again.
But I cannot still understand this.

This is from the part of publication 519.

Dual-Status Aliens
...
-First Year of Residency

-First-Year Choice
If you do not meet either the green card test or the substantial presence test for 2005 or 2006 and you did not choose to be treated as a resident for part of 2005, but you meet the substantial presence test for 2007, you can choose to be treated as a U.S. resident for part of 2006. To make this choice, you must:

Be present in the United States for at least 31 days in a row in 2006, and

Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of 2006. For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.


When counting the days of presence in (1) and (2) above, do not count the days you were in the United States under any of the exceptions discussed earlier under Days of Presence in the United States.

If you make the first-year choice, your residency starting date for 2006 is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are treated as a U.S. resident for the rest of the year. If you are present for more than one 31-day period and you satisfy condition (2) above for each of those periods, your residency starting date is the first day of the first 31-day period. If you are present for more than one 31-day period but you satisfy condition (2) above only for a later 31-day period, your residency starting date is the first day of the later 31-day period.

-Note.
You do not have to be married to make this choice.


- Statement required to make the first-year choice. You must attach a statement to Form 1040 to make the first-year choice. The statement must contain your name and address and specify the following.
That you are making the first-year choice.

That you were not a resident in 2005.

That you are a resident under the substantial presence test in 2007.

The number of days of presence in the United States during 2007.

The date or dates of your 31-day period of presence and the period of continuous presence in the United States during 2006.

The date or dates of absence from the United States during 2006 that you are treating as days of presence.

You cannot file Form 1040 or the statement until you meet the substantial presence test for 2007. If you have not met the test for 2007 as of April 17, 2007, you can request an extension of time for filing your 2006 Form 1040 until a reasonable period after you have met that test. To request an extension to file until October 15, 2007, use Form 4868, Application for Automatic Extension of Time To File U.S. Individual Income Tax Return. You can file the paper form or use one of the electronic filing options explained in the Form 4868 instructions. You should pay with this extension the amount of tax you expect to owe for 2006 figured as if you were a nonresident alien the entire year. You can use Form 1040NR or Form 1040NR-EZ to figure the tax. Enter the tax on Form 4868. If you do not pay the tax due, you will be charged interest on any tax not paid by the regular due date of your return, and you may be charged a penalty on the late payment.


Actually these are talking about tax year 2006.
So it means if I wait until meeting SPT I can be partial resident of the year(dual status alien), doesn't it?

If you are single, you don't have option of first year choice.

Hmm it's still confusing...

You are saying if I am a single, I cannot make 'first year choice'.

But Pub 519 says "You do not have to be married to make this choice"
It doesn't mean a single? Is it wrong?

You do not have to be married to make the First Year Choice of filing DUAL-STATUS.

You DO have to be married to file jointly with your spouse and you BOTH choose to be treated as resident aliens.

I know it is confusing; IRS Pub 519 does not explain it well nor is it very explicit, but if you read the part about filing as a resident alien under First Year Choice, it is only disccused when you are fling jointly with a spouse, NEVER filing by yourself.