Hi,

My employer withheld FICA taxes for 2010. Since I am on F1 for only 2 years, I requested my employer for a FICA refund in 2011. But the employer says that since they already issued W2 for 2010, they cannot refund FICA with held in 2010. So is it true that employer cannot refund FICA after they issue W2 for that year?

I'm asking this because I would like to file a joint return using 1040 as we will owe less taxes with this approach, instead of me using a 1040NR,Form 843 and 8316.

Thanks a lot for your help so far.

Taxpayer

No, that is NOT true. Using the Form 941C, they CAN adjust filing and refund your money.

Now, they may NOT do it, and you will have to submit the Form 843.

As for your annual return, you can only file a JOINT return if you converted to a work visa (like H-1 or H-1B) sometime BEFORE 1 December 2010 and WAIT until after 1 June 2011 to file.

Thanks AtlantaTaxExpert. You have been very helpful.

Regarding the joint return, I can still file joint return on F1 using 1040 with my spouse, who is a resident alien for tax purposes, as long as I don't have to to submit a form 843 for a FICA refund from IRS right?

Yes, that IS correct.

Do NOT file until you get the FICA refund from your employer.

If you have to file Form 843 to get the FICA refund, you will need to file Form 1040NR-EZ with the Form 8843, then get the FICA refund, THEN amend to file jointly AFTER getting the FICA refund.

Awesome. Thanks a lot AtlantaTaxExpert.

Glad to help!