[tiger10is]

I graduated in May 07 and was on OPT till December 07 and have been on H1 B since. Do I have to file 1040 NR or 1040? I was in the US all year last year and certainly qualify for the substantial presence test.

Thanks

[The Texas Tax Expert]

When did you first start your F1 visa?

[MukatA]

If you have not completed 5-years on F1 and OPT and you are single, you will file nonresident tax return. You do not qualify for SPT since the days of F1/OPT are exempt from residency. Also your income during OPT is not subject to FICA taxes.

[tiger10is]

Thank you for the responses.

Here is my situation with some more specifics. Any additional help you guys can provide is greatly appreciated.

I was on F-1 from January 1998 to Aug 2001 and then again from August 2005 to December 4th 2007. So that makes it more than 5 years on F1 visa. Do the 5 years have to be consecutive or do my 5 inconsecutive years make me a resident?

I changed to H-1b on December 4 2007. The way I understand the rules from Pub 519, I cannot use December 4th as my start of residency date because I did not have 31 days in the US with that visa. If I am a non-resident for tax purposes, I need to get back a ton of money because FICA was being withheld from my paychecks. What is the best way to get that refunded?

Thanks again.

[The Texas Tax Expert]

You have surpassed the five year point and hence you were resident in 2006 and in 2007. You should file a 1040 for 2007.

[aulke]

I am a little confused now,

I came to US on F-1 in August 2003 and now it's April 2008. I am a resident or still non-resident?

[MukatA]

aulke:
You were not resident for 2003 to 2007. You will file 2007 return as nonresident.
In 2008, you are resident.