[newyear2014]

Hi, I've been on F-1 status since 2011, but at the end of 2013, I applied to adjust my status (i.e. applied for green card), which is currently pending. I have two questions based on my current situations and I would truly appreciate your help.

1. Am I considered "resident" or "non-resident" alien for the tax purpose for the year of 2013?

According to the IRS's "substantial presence test," (Source: Tax Topics - Topic 851 Resident and Nonresident Aliens) it looks like I'm considered "non-resident" as I was an exempt individual (i.e. on F-1 status) for most part of the year. However, based on the IRS's "green card test," it is unclear if I am considered as "resident" (as I have applied for a green card) or if I am considered as "non-resident" (as I don't have my green card in hand yet).


2. If I am considered "non-resident," it is my understanding that I can elect to file as a resident by filing taxes jointly with my resident spouse. What would be the advantages of filing separately/independently as a non-resident, rather than filing jointly with my spouse as a resident?

All benefit I can think of is that I am able to receive withheld SSN and Medicare taxes as a non-resident. However, since my native country has ratified a social security agreement with the US, and as I intend to stay in the US from now on as a resident, I guess I can just file as a resident for 2013 and start paying for my social security taxes. Another reason why I'd rather opt to file jointly as a resident is because it was such a hassle to request withheld SSN and Medicare taxes in the past - my former employer hasn't even been willing to issue a simple letter stating that they haven't refunded my withheld taxes and accordingly, IRS has yet to process my refund request for the year of 2012. Am I missing any other benefits of filing as a non-resident?

Thanks again in advance for your invaluable advice.

[AtlantaTaxExpert]

If you are currently a F-1 student and have been since 2011, then, for 2013, you are still considered to be a non-resident alien, irrespective of the green card application. This being the case, you must file Form 8843 and a non-resident atx return (Form 1040NR or 1040NR-EZ).

You can file jointly and still get the Social Security and Medicare taxes, but you have to go through the process of submitting Form 843 and 8316 AND file as a non-resident FIRST. Once you get the SS and Medicare taxes back, then (and only then) do you amend the 2013 return to file jointly.

I can help with BOTH processes professionally. Email me at the email address in my profile.

[newyear2014]

Thank you AtlantaTaxExpert for your great input. I have a follow up question and your response will be greatly appreciated.
I got married to a US citizen in 2012, and for 2012, when I worked on OPT, I filed 1040NR (married filing separately). Although I also filed Form 843 and 8316 for the year 2012, IRS responded that I submitted insufficient evidence and thus those Forms haven't been processed.

1. If I withdraw Form 843 and 8316 for the year 2012 (and thus do not proceed with SS and Medicare taxes refund), can I earn credits/quarter of coverage for the Social Security purpose for 2012?
2. If I file jointly as a resident with my spouse for the year 2013, can I earn credits/quarter of coverage for the Social Security purpose for 2013?

As I don't have any foreign income, I would rather file jointly as a resident and start earning SS credits unless there is a huge benefit for me to file separately as a non-resident. Thank you very much for your time in advance!

[AtlantaTaxExpert]

Yes, you can both file jointly for 2013 and amend to convert your 2012 return to a joint return, then qualify to earn credits for those eigfht quarters in the Social Security system.

[newyear2014]

Got it, thanks so much AtlantaTaxExpert!

[AtlantaTaxExpert]

Glad to help!