[htennek]

I am an F-1 visa holder from Hong Kong since 2002 and I present in America for the past four years (whole year). Should I file 1040nr as nonresident allen same as last year?

I am working as opt now and my employer withholds Fed, Fed Med/EE and CA taxes in my pay check. But I heard international students do not need to pay for Fed Med/EE tax, can I ask my employer for refund? What form should I use to file CA tax refund?

I am trying to maximize my tax refund this year and I have a brother, also an F-1 visa holder since 2005. Can I claim my brother as my dependent so I can get more allowance and tuition deduction?

Thanks

[MukatA]

You have spent 5 years on F-1 so you will file resident tax return and you must pay FICA taxes. You can not claim your brother as he is nonresident.

Your brother must file nonresident tax return and Form 1040.

[AtlantaTaxExpert]

Your exemption from the Substantial Presence Test expired on 31 December 2006.

Hence, you were a resident alien for tax purposes for BOTH 2007 and 2008 unless you clearly showed you maintained a "closer connection" to your home in Hong Kong.

The burden of proof to show the closer connection rests with you, and must be submitted with the Form 8843 that must be filed annually with or without a tax return.

If you have shown this closer connection, you should request a refund from your employe for the FICA (Social Security and Medicare) taxes.

If he refuses, get the refusal in writing on company letterhead, then you can petition the IRS for a refund of the FICA (Social Security and Medicare) taxes by submitting Form 843 with the required supporting documents; see IRS Pub 519, pages 47-50, for details.

I agree with MukatA; you cannot claim your brother as a dependent because he is a non-resident alien.