I graduated in May 07 and was on OPT till December 07 and have been on H1 B since. Do I have to file 1040 NR or 1040? I was in the US all year last year and certainly qualify for the substantial presence test.

Thanks

When did you first start your F1 visa?

If you have not completed 5-years on F1 and OPT and you are single, you will file nonresident tax return. You do not qualify for SPT since the days of F1/OPT are exempt from residency. Also your income during OPT is not subject to FICA taxes.

Thank you for the responses.

Here is my situation with some more specifics. Any additional help you guys can provide is greatly appreciated.

I was on F-1 from January 1998 to Aug 2001 and then again from August 2005 to December 4th 2007. So that makes it more than 5 years on F1 visa. Do the 5 years have to be consecutive or do my 5 inconsecutive years make me a resident?

I changed to H-1b on December 4 2007. The way I understand the rules from Pub 519, I cannot use December 4th as my start of residency date because I did not have 31 days in the US with that visa. If I am a non-resident for tax purposes, I need to get back a ton of money because FICA was being withheld from my paychecks. What is the best way to get that refunded?

Thanks again.

You have surpassed the five year point and hence you were resident in 2006 and in 2007. You should file a 1040 for 2007.

I am a little confused now,

I came to US on F-1 in August 2003 and now it's April 2008. I am a resident or still non-resident?

aulke:
You were not resident for 2003 to 2007. You will file 2007 return as nonresident.
In 2008, you are resident.