[konradsa]

Hi,

I am an F-1 student currently on OPT. I came first to the US on an J-1 visa in Aug of 2001, and then switched to F-1 in April of 2002. I did not file a tax return in 2001, since I did not have any income that year, but started having income in Feb 2002 and have filed an 1040NR-EZ ever since.

Now my question, do I need to file as resident now or can I still file as non-resident? Do I need to file the year 2006 partially as resident? What is the major difference between filing as resident and non-resident?

Thanks!
-- Sascha

[AtlantaTaxExpert]

Sascha:

My initial reaction would be that you were still a non-resident alien due to your F-1 status starting in 2002, but I am not sure.

Perhaps TaxSearcher has the answer?

[taxsearcher]

The J1 knocks out one year. Then you had 4 more years on F1, so now you've had too many years. You are resident from 2006 onward.

[konradsa]

Thank you both sooo much for your quick replies. So I will file a 1040 (not NR) for all of 2006.

What is the difference between filing as resident and non-resident. Can I expect my return to be smaller when I file as resident?

Thanks!

[AtlantaTaxExpert]

Konradsa:

Actually, filing as a resident alien is probably more advantageous, as you get the $5,150 Standard Deduction AND you can claim education credits/deduction.

[konradsa]

Thanks Atlanta Tax Expert, you guys are life-savers.

I quickly filled out the form and it looks like I get $400 more back as a resident than as a non-resident.

Do I still need to include form 8843 to demonstrate that I have been in the US for more than 5 years?


[EDIT]

Btw, my employer does not withhold FICA taxes since I am on F1. Does my decision to file as a resident change that, or am I in the clear as long as I am on F1? Do I need to notify my employer that I am filing 2006 as a resident?

Thanks!
-- Sascha

[Piggley Winks]

Hi,

My case is pretty similar as Sascha's.

I got my F1 student visa in Nov 2001 in Hong Kong and come to the US on Jan 2, 2002. Starting from that day until now, I have never left this country.

Prior to the issuance of my F1, I have been staying in US with my B1 visitor visa and H1 working visa (I changed my immigration status from B1 to H1 in 2001 when I was in the US and I did not actually get the H1 visa stamp from a US embassy).

My question is that since I have been staying in US with my F1 for 5 years consecutively, in this year, should I file my 2006 tax return as a non-resident or resident?

BTW, when I file my tax return for 2005 last year. I filed it as a non-resident. I think that I was correct. Could anyone confirm with me please?

Looking forward to hear from you. Thank you!

Regards,
Piggley

P.S. Thanks for answering my previous question "Refile 8843", AtlantaTaxExpert. I appreciate your help.

[AtlantaTaxExpert]

Piggley:

File as a resident alien for 2006. The B1-to-H1 visa year counts against the five-year F-1 exemption.

Filing as a non-resident alien in 2005 was CORRECT.

If you need my professional tax help, contact me at [email protected].

[Piggley Winks]

Hi AtlantaTaxExpert,

Thanks for your promptly response.

1st question:
Please allow me to clarify my situation in 2001 a little bit more clearly. I switched from B1 to H1 during that year and I was in the US from Jan to early Nov (i.e. slightly more than 10 months). So, does 2001, in which I stayed in the US for less than a year, still count towards my 5-year F1 exemption?

2nd question:
Say, if I had never filed my H1 petition in 2001 and stay in the US just with my B1 for 10 months, does the year 2001 still count towards my 5-year F1 exemption? [Just ask in order to know more about the US tax system]

3nd question:
I just want to make sure that NO 8843 is required anymore as I am going to file as a resident.

Looking forward to hearing from you! Thank you very much!

Regards,
Piggley

[AtlantaTaxExpert]

1st/2nd question: Yes. ONE DAY on the B-1 visa uses up the entire year of the 5-year F-1 exemption.

3rd question: No Form 8843 is required if you file as a resident alien.

[Piggley Winks]

Dear AtlantaTaxExpert,

Thank you very much for your great great help! I really appreciate that.

Regards,
Piggley

[Piggley Winks]

Dear AtlantaTaxExpert,

I am sorry that I forgot to mention to you that I actually first came to the US with my B1 visa in June 2000, although I went back to Asia in August 2000 and returned to US again in October 2000 and stayed in California until November 2001.

So, if the year 2000 is my first year of the 5-year F-1 exemption, it means that I should have filed my 2005 tax return as a resident alien, while tax returns prior to 2005 should have been filed as non-resident applications. But, I filed my 2005 tax return as a NON-RESIDENT. I have just heard that this may jeopardize my future green card application as not filing as a resident, while I am supposed to, implies giving up the intention of being a permanent resident.

If I should have filed my tax return for 2005 as a resident, is it possible for me to amend it? If yes, how can I do it? With the Form 1040X-Amended Tax Return?

Looking forward to hearing from you. Thank you very much!

Regards,
Piggley

[taxsearcher]

Piggly,

I'm actually just very confused about your situation. You seem to have changed visas an awful lot! Are you saying that you were in the US in 2000 and 2001 and NOT on an F1? And that you were only in the US on F1 from 2002?

If that is the case, then it appears to me that 2006 is your 5th year on F1 and you should file as a NR.

TS

[Piggley Winks]

Dear taxsearch, AtlantaTaxExpert and other tax experts,

Here is my immigration history.
2000
- in US since Jun to Aug, Oct to Dec
- visa status: B1
2001
- in US since Jan to Nov
- entered with B1, then changed status to H1 locally
2002 to 2007 (today)
- in US without leaving the US
- visa status: F1

So, taxsearch, the answers for both of your questions are "yes".

If 2000 and 2001 both are included in the 5-year F1 exemption, I should have filed my tax return for 2005 as a resident alien, but I filed it as a non-resident.

Should I refile my 2005 tax return? If yes, how can it do it? With the 1040X Amended Tax Return?

Please help. I would highly appreciate that.

Thank you!

Regards,
Piggley

[taxsearcher]

Piggley -- it's Taxsearcher (with an ER).

OK, looks to me like the following:

2000 - NR (although you are really close to the cut off so go and double check your days)
2001 - Resident
2002, 2003, 2004, 2005, 2006 = NR
2007 Resident.

But your situation looks really messy. You must be an immigration service nightmare with all those visa changes.

[AtlantaTaxExpert]

Agree with TaxSearcher. It looks like you are NRA for 2005 and 2006.

[Piggley Winks]

Dear AtlantaTaxExpert and taxsearcher,

Yes, my case is very complicated.

Thank you very much for the help! I really appreciate that.

Regards,
Piggley

[AtlantaTaxExpert]

Glad to help!