[Nimkel]

Hi,

I am an F-1 student who is currently doing her OPT. I am unsure as to whether I should be paying SS and Medicare, since this is my second OPT after graduating law school. I came to the US in 2000 for Undergrad, worked afterwards under my first OPT, then went back to attend law school and am now working again under my second OPT. Do I qualify as a "resident alien" and have to pay social or am I still exempt?

Thank you!
Kim

[Visa Taxes Expert]

Hi,

I am an F-1 student who is currently doing her OPT. I am unsure as to whether I should be paying SS and Medicare, since this is my second OPT after graduating law school. I came to the US in 2000 for Undergrad, worked afterwards under my first OPT, then went back to attend law school and am now working again under my second OPT. Do I qualify as a "resident alien" and have to pay social or am I still exempt?

Thank you!
Kim

Hello Sir

It depends on the Visa you are currently holding and the time, you are holding the visa.

If you are on your F1 visa and did not exceed 5 years, you are exempt from FICA (social security and Medicare Taxes) even if it is your second OPT.

If you had filed FICA taxes by mistake on an OPT, you can file Form 843, to reclaim your Social Security and Medicare Taxes.

You will have file form 1040nr and Form 843 (if necessary)

Hope this helps!

[AtlantaTaxExpert]

Nimkel:

Since you posted that you arrived in country in 2000, then did OPT, then went back to law school (a 3-year school), then did a second OPT, it is clear that you have been in the U.S. for MORE than five years under a F-1 visa.

Your exemption from the Substantial Presence Test expired on 31 December 2004. For tax year 2005 and beyond, you should have filed as a resident alien, which means filing Form 1040, 1040A or 1040EZ.

Further, starting in calendar year 2005, you became liable for both Social Security and Medicare taxes.

[MukatA]

Yes, Nimkel will pay FICA taxes and will file as resident. If the employer is not wihholding the FICA taxes, Nimkel must inform the employer in writing.

[AtlantaTaxExpert]

Agreed.

However, Nimkel will NOT be held responsible for the FICA taxes for 2005 or 2006, and it is too late for his employer to collect the back FICA taxes for 2005 or 2006.

It is NOT too late for 2007, however, if the employer chooses to take action. The deadline for the employer to act is 31 January 2008. After that date, the employer loses any legal standing he has to collect 2007 back FICA taxes.