Hi,

I am a non-resident alien. I started to work for an US company on Sept 22nd, 2005 after I had graduated from a US college with an F1 visa. Initially I was on OPT. On Dec 26th, 2005, my employer applied for an H1B visa. The H1B application process took several months and it was approved on April 2006. Then in Dec 2006, the official visa is issued to my passport.

My employer withdrew Social Security and Medicare taxes for both 2005 and 2006. I was told that since my H1B application was started in 2005, I had to pay for the taxes starting from 2005.

As I know, these taxes should be paid once the H1B application is approved (not once the application is placed). However, I could not find the corresponding information in the IRS web page and I cannot prove it to my employer.

Am I eligible to receive these payments back, and if so, could you please give me any reference which clearly proves my case?

Thanks in advance.

You became liable for the Social Security and Medicare taxes the day your H-1B visa was APPROVED. Hence, you are eligible for a refund for the Social Security and Medicare taxes withheld while you were under the F-1 visa.

You need to request that your employer refund these taxes. When he refuses, get the refusal in writing. You will need the refusal letter when you file Form 843 to request the refund from the IRS, along with other support documents. Refer to IRS Pub 519 for details, or contact me at the email below.