[adampanic]

Thanks for taking the time to help out.

I am a student on an F-1 student visa, currently on OPT and planning on filing for an OPT extension under the STEM rule. Under OPT, both social security and medicare taxes have been withheld. I have been in the US since 2001 as a non-resident alien, although I am now considered a "resident alien" for tax purposes by the Substantial Presence Test.

My question is, am I entitled to get a refund on withheld social security and medicare? I read on the Internal Revenue Service website under "Foreign student liability for social security and medicare taxes" that...

"...the Code provides one exemption from social security/Medicare taxes for foreign students and it provides another exemption from social security/Medicare taxes for all students, American and foreign. This is the so-called "student FICA exemption", and it may operate to exempt a foreign student from social security/Medicare taxes even though he has already become a RESIDENT ALIEN."

click here for link.

Given my status as a F-1 visa bearing foreign student in the US for over 5 years, now on OPT, nonresident by the USCIS but "resident" for tax purposes, am I able to claim a social security refund?

Thanks in advance for all your help.

[IntlTax]

I am not 100% sure, but I believe that the exemption from FICA taxes if you work on campus. If your OPT is not on campus, then I don't believe that the exemption would apply.

[MukatA]

Yes, student FICA exemption is for students who are also work on campus, who are alteast half time students, who are not full time employees, and who are not professionals.

[adampanic]

Thank you everybody for the valuable help. So am I right is assuming that even as an individual with an F-1 student visa, I am no longer considered a student while on practical training outside of the university community? I am not currently enrolled in any classes, although the USCIS still sees me as a student.

Social security was not withheld from my stipend while I was still on campus, even after being in the US for 6 years. Social security has only been withheld after I moved to a new research facility not associated with my university campus.

Has my student status been nullified after receiving OPT?

[rsmitha]

I know hundreds of cases how enjoy FICA benefits while on OPT, working full time in companies (not on-campus). In my case, the international office in my company where I worked on OPT and transferred to H1, deducted FICA taxes once my H1 started.

[adampanic]

I am still confused whether the student FICA exemption overides any "resident" alien status for a foreign student on OPT after having been in the US for over 5 years and meeting the substantial presence test. Any ideas?

Thanks on advance.

[AtlantaTaxExpert]

Actually, it is rather simple:

An international student on a F-1 is "exempt" from the Substantial Presence Test (SPT) for FIVE calendar years. At the start of the SIXTH calendar year, they become subject to the SPT so that, in that sixth year, they become a resident of the U.S. for tax purposes.

The link that you provided in your initial post specifically states that 5-year applies to FICA taxes as well as to income taxes, so once you are in the sixth year of your F-1 visa, you are by default subject to FICA taxes as well as income taxes as a resident alien.

Now, you CAN continue the exempt status allowed to F-1 student beyond five years if you can show a "closer connection" to your home country. However, the burden of proof to show that closer connection rests with the student, who must offer that proof ANNUALLY with a statement of facts attached to the Form 8843. The closer connection argument must be approved by the IRS each year.

Note that this is a HARD SELL to the IRS, and the argument is immediately voided if the student applies for any type of work visa (H/L/E series).