[mettle]

Hi ATE,

The date on my opt is from May 2005 to May 2006. But meanwhile my H1B petition got approved starting 1st Nov 2005. But my employer who filed for my H1B was not deducting social security and medicare taxes till January. When I noticed, I asked him about this and he said it is a technicality and it is up to me whether to avail the benefits of OPT till May 2006 or not. If I want then my employer would start deducting social security and medicare taxes which would mean I have accepted H1B status. And no one can legally force me to accept H1B status unless I my opt is over. I did not know what to do but then I asked him to start deducting from month of February. Now my question is what tax form I should file for 2005. And should I be paying social security medicare taxes for month of nov and December or not. I am totally confused as to what should be done. I don't want to get into any trouble for this.

I would really appreciate advise in this case.

Regards,
Mettle.

[vaya]

Federal income tax returns have very little to nothing to do with social security and medicare taxes. Your visa/immigration status does not depend on social security or medicare taxes. Paying SS tax does not indicate that you have "accepted" H1B (in fact, you have no option but to be in H1B status because your old OPT and F1 terminated once you got your H1B, so yes, you were forced into your new H1B status).
You do not have to pay any SS or medicare taxes. It's employer's responsibility to make sure they properly deduct required amounts.
SS and medicare taxes do not affect what form you need to use.

In short, SS taxes and medicare are not that important as you think.

Vaya

[mettle]

Hi vaya,

Thanks a lot for your quick response. That helps me a lot.
So this means I should stop worrying that I will be hold liable for not paying ss and medicare taxes and file the taxes using regular forms (1040NR EZ) I guess.

Thanks
Mettle

[vaya]

You are not liable for those taxes, but I am not quite sure which form you need to use. Please read the very first thread in this forum for people who have changed their visas from f-1 to H1/H1B.

Vaya

[AtlantaTaxExpert]

Mettle:

Yes, stop worrying about the SS and Medicare taxes.

You can file Form 1040NR or Form 1040NR-EZ if you want to file immediately. Assuming you are from India, you can claim a standard deduction of $5,000 and a personal exemption of $3,200 filing as a resident alien.

If you are NOT from India, then you cannot claim the standard deduction, which means it may make sense for you to wait until late June to qualify to file as a resident alien (in order to claim the standard deduction of $5,000) under First Year Choice.

[positive4ever]

I am in a similar situation: I got my H1-b in Oct, and my employer only started deducting SS and Medicare taxes in Jan 2010. Is this normal procedure? Do I have the obligation to inform my employer?

[AtlantaTaxExpert]

You were liable for FICA (Social Security and Medicare) taxes the day you started your H-1B visa.

You have the legal obligation to notify yor employer of this fact; do so in writing (email is good for this).

Once that notification is done, it is up to your employer to correct the mistake. You need do nothing else.

[Erplus1]

Is there an exception that allows a worker to be exempt from FICA tax if he/she works under the H-1B status for less than 90 days during the year? The employee converted from directly F-1 to H-1B status.

[AtlantaTaxExpert]

Sorry, no exceptions that I know of.