Hi again! I posted a question a few days ago and you were very helpful.

I am a little confused as to what my status is.

2003 - F1 - 202 days
2004 - F1/OPT - 305 days
2005 - 293 days:
>> F1/OPT until Jun 30 - 176 days
>> stayed after visa expired for 1 month - then left country
>> H1B Oct 1 to Dec 31 (left a few days for Xmas) - 117 days

I guess I am a nonresident since I don't meet the substantial presence test, right? I was reading about first year choice and I was a little confused. I am not a U.S resident so I guess that is not a choice, right?

Thanks a lot in advance!!
Maria

Maria:

Technically, you are a dual-status alien, because you began the year as a non-resident alien, but, since 1 Oct 05, you have been a resident alien.

At this time (5 feb 2006), you cannot file as a resident alien because you have not met the Substantial Presence Test. To meet that test, you have to wait until early June, at which time you can, under the First Year Choice, file as resident alien for 2005.

If you do not want to wait, you could file either a dual-status return (a rather complicated paperwork drill) or file a non-resident return.

However, unless you are from India, it is likely you cannot claim the $5,000 standard deduction if you file as a non-resident alien, which is why I generally recommend that dual-status aliens wait out the Substantial Presence Test and file late to get the standard deduction. All you need to do is file for an extension.

Thanks a lot!
I have a follow up question, well, two questions.
1) if I wait an file as a residen will I get a refund for SS and Medicare for 2005? My employer deducted those taxes and I was going to file form 843 to get a refund.
2) I was confused when I read about First Year Choice, because they use the term "U.S. resident" instead of just "resident", and they list the First-Year Choice under the "First Year Residency" where they also refer to "U.S. Resident", I assumed that they were referring to people who by inmigration terms were residents of this country, which I am not.
Thanks in advance!
Oh, by the way, I am from Argentina, so no treaties for me :-(

Maria

Maria:

1) file the Form 843 while you are waiting to qualify for the First Year Choice.

2) A U.S. resident is a resident alien. I know it is confusing. File the extension, then file Form 1040 in late June as a resident alien.

Thanks a lot!!

Hi again ATE,
I was reading the pub 519, and waiting for the days to pass the presence test would make me dual status by June, 2006, not a resident. I mean, the publication says that once you meet the presence test, you are a resident for part of 2005, starting the first day of the 31-day period (something like that), so I guess dual status is not better than nonresident, right?

Thanks a lot, you are so helpful!
Maria

Tax-wise, dual-status is the same as non-resident.

For most people, waiting out the time required for the First Year Choice is the best way to go because it allows you to claim the standard deduction.

Even at the lowest tax rate (10%), that standard deduction adds $500 to your tax refund.

I apply for citizenship on 1998 a recite my appointment for the Tess but my father die at the time, is any chance to get a new appointment, because today the cost for citizenship is to Spence

This is a immigration law question, not a tax question.

Please report to the LAW forum under Immigration Law.