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Fernando113 · Jan 19, 2011, 04:19 PM

I graduated from a Texas University in May 2009 and did a year of OPT, do I still file the form 1040NR or can I file 1040 because I have been a student for more than 5 years? Any help would be greatly appreciated. Thank you.

MukatA · Jan 19, 2011, 05:31 PM

Yes, after 5 years on F-1 your days in U.S. are not exempt from residency. If you entered U.S. in 2005, you will file 2010 return as resident. Your U.S. Tax Return: The U.S. Visas

Fernando113 · Jan 19, 2011, 08:58 PM

Thank you MukatA one more question, I came back to school after my OPT does this make any difference? And do I still need to file an 8843?

AtlantaTaxExpert · Jan 19, 2011, 10:06 PM

No, it makes no difference, and no, you need NOT file Form 8843, unless...

You are claiming that you have maintained a "closer connection" to your home country.

If you are making such a claim, then, in addition to the Form 8843, you must annually file Form 8840.

Fernando113 · Jan 19, 2011, 11:07 PM

Thank you for your answer AtlantaTaxExpert. Final question just to be sure, but is there any benefit in claiming that I have maintained a closer connection to my home country, thus filing 8843 and 8840?

AtlantaTaxExpert · Jan 20, 2011, 07:51 AM

Probably not, but everyone's situation is unique. Below is an example of whatCAN happen bu not filing the required forms:

I had a Russian client who went to school for five years under a F-1 visa, then taught for two years under a J-1 visa, then was a dependent of a F-1 visa student (he was F-2). He NEVER got a H-1 or L-1 work visa, and he returned to Russia in 2008.

However, he failed to file the Forms 8843 and 8840 to establish that he maintained closer connections to Russia to maintain his non-resident status, so the IRS started to consider him a resident alien right after his J-1 visa expired in 2005.

It was not an issue for 2006 and 2007, because no money was earned by either he or his wife while his wife attended college classes. However, in 2008, he did SUBSTANTIAL stock trading with his U.S. broker AFTER he returned to Russia, and showed gains in excess of $300,000, on which he paid Russian taxes.

Unfortunately, since he failed to notify the IRS of his return to Russia and TERMINATE his resident status, the IRS sent him a notice that he owed about $120,000 in income taxes on the $300K in capital gains.

ALL because he failed to file the required forms that would have taken about 10 miuntes to complete and mail.