[f1toh1]

Hi,

I was on OPT(F1 Visa)(non-resident for tax purposes)until Oct 1, 2011 when my visa status changed to H1B(can be treated as resident for tax purposes). I do not meet the substantial presence test for tax year 2011. Can I be considered as a non-resident for the entire year and file a form 1040NREZ or will I be considered as a dual status resident though I don't meet the SPT? If I can be considered non-resident for the entire year, can I apply for the tax refund for the FICA taxes held by my employer from Oct 1st - Dec 31st 2011?

Since I am single and am allowed the standard deduction under the Tax treaty with India, I am not choosing to apply for an extension and make the first year choice.

[MukatA]

You are nonresident for 2011. You are not dual status; you can choose to be treated as dual status after you complete SPT in 2012.
During H1-B, you must pay FICA taxes even if you are nonresident. Your U.S. Tax Return: The U.S. Visas

[f1toh1]

Thanks for your response Mukat! I thought H visas are exempt from FICA taxes if they are non-resident for tax purposes according to the IRS, http://www.irs.gov/businesses/small/international/article/0, id=129427,00.html

"Nonresident aliens, in general, are also liable for Social Security/Medicare Taxes on wages paid to them for services performed by them in the United States, with certain exceptions based on their nonimmigrant status. The following classes of nonimmigrants and nonresident aliens are exempt from U.S. Social Security and Medicare taxes:
...
H-visas. Certain nonimmigrants in H-2 and H-2A status are exempt as follows:
An H-2 nonimmigrant who is a resident of the Philippines and who performs services in Guam.
An H-2A nonimmigrant admitted into United States temporarily to do agricultural labor."

[newacct]

Thanks for your response Mukat! I thought H visas are exempt from FICA taxes if they are non-resident for tax purposes according to the irs, Foreign Student Liability for Social Security and Medicare Taxes

"Nonresident aliens, in general, are also liable for Social Security/Medicare Taxes on wages paid to them for services performed by them in the United States, with certain exceptions based on their nonimmigrant status. The following classes of nonimmigrants and nonresident aliens are exempt from U.S. Social Security and Medicare taxes:
...
H-visas. Certain nonimmigrants in H-2 and H-2A status are exempt as follows:
An H-2 nonimmigrant who is a resident of the Philippines and who performs services in Guam.
An H-2A nonimmigrant admitted into United States temporarily to do agricultural labor."

Do you see H-1B?

[AtlantaTaxExpert]

I concur with MukatA; the law is clear that you ARE liabe for FICA taxes from the day you started the H-1B visa.