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    amalenko's Avatar
    amalenko Posts: 3, Reputation: 1
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    #1

    Aug 6, 2011, 06:34 AM
    F1 to H1-B -- am I a resident alien for tax purposes?
    I came to the US for the first time on 9/14/2006 on F1 visa and was on it until 6/12/2011. The days I was present in the US in 2006 - 2010 are: 2006 - 109 days; 2007 - 344 days; 2008 - 340 days; 2009 - 324 days; 2010 - 350 days. I filed forms 1040NR-EZ and 8843 for years 2006 - 2010. In 2011 I found a job and transferred to H1B status starting 7/1/2011. I was out of the US almost all July, so the number of days in the US between 7/1/2011 and 12/31/2011 will be less than 183. Will I be a resident alien for tax purposes, a non-resident alien, or in dual status for 2011?

    Thanks so much for your help!
    taxesforaliens's Avatar
    taxesforaliens Posts: 649, Reputation: 117
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    #2

    Aug 6, 2011, 07:10 AM
    On F1 you are exempt from counting days for 5 calendar years, so from 2006-2010. In 2011 all days count, so you are a resident alien in 2011.
    amalenko's Avatar
    amalenko Posts: 3, Reputation: 1
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    #3

    Aug 6, 2011, 07:30 AM

    Dear taxesforaliens:

    Many thanks for the answer. Do you know where I can look this information up on the IRS website? I tried to find it there, but everything I found looks very ambiguous. For example, 8843 form states that "you cannot exclude days of present as a student if you were exempt as a teacher, trainee, or student for any part of more than 5 calendar years". I was exempt for 5 calendar years, which is not "more than 5".
    AtlantaTaxExpert's Avatar
    AtlantaTaxExpert Posts: 21,836, Reputation: 846
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    #4

    Aug 6, 2011, 09:38 AM
    It is spelled out in IRS Pub 519.
    amalenko's Avatar
    amalenko Posts: 3, Reputation: 1
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    #5

    Aug 6, 2011, 12:37 PM

    AtlantaTaxExpert:

    Thanks for the reference. It looks like IRS Pub 519 repeats what is stated in form 8843: "You will not be an exempt individual as a student if you have been exempt as a teacher, trainee, or student for any part of more than 5 calendar years ..." (Chapter 1, page 7). Because I have been exempt for 5 calendar years, which is not "more than 5", this statement does not imply that I should count the days I were on F-1 visa in 2011. And there is no other place in IRS Pub 519 that covers such cases. Do you know if there is any way to get clarification from IRS officials on the rule?
    AtlantaTaxExpert's Avatar
    AtlantaTaxExpert Posts: 21,836, Reputation: 846
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    #6

    Aug 6, 2011, 03:08 PM
    The woding in IRS Pub 519 leaves a LOT to be desired, but the bottom line is simple:

    If you exceed five years on F-1 status, you become liable for the Substantial Presence Test starting on January 1st of the sixth year, thus becoming a resident alien, UNLESS you can clearly show a "closer connection" to your home country.
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