My wife was on student visa whole of 2011 and she started working on OPT starting April 2011. I am on H1-B and we are filing "married filing jointly - 1040" form from last 3 years, since she didn't have any income before. She was on H-4 dependent visa in 2008. Should we get FICA refund? What form we need to file?

Thanks in advance for your help!

FIRST and FOREMOST, try to get her employer to refund the improperly-withheld FICA (Socia;l Security and Medicare) taxes. The IRS requires this. If they refuse, then get a refusal letter on company letterhead stating HOW MUCH in FICA taxes was withheld and WHY they cannot refund the money. Then (and only then) can you submit Formd 843 and 8316 to get the refund from the IRS.

If you must submit Forms 843 and 8316, YOU must make some HARD decisions, because, effectively, she has to REVOKE her decision to file jointly with you and file independent as a non-resident alien BEFORE the IRS will process the Forms 843 and 8316. If you file jointly, they will reject the refund request.

Once she revokes her joint filing option, she CANNOT file jointly with you as long as she is a non-resident alien.

Like I said, HARD decisions abound.

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