[TheMartian]

For the first 3 months of 2004 I was working on OPT and afterwards I was on H1 working for the same company. However I got only 1 W2 for the whole of 2004. Should I break down my gross income and specify 25% in 1040NR-EZ and the rest in 1040? Then I guess I would do the same for the state tax and federal tax?
Thanks a lot for any help!

[AtlantaTaxExpert]

No, you cannot do that.

Based on the info you have provided, you must file only Form 1040NR-EZ.

For 2005, you will go with the normal tax forms.

[TheMartian]

Really? I thought that I would be considered as having dual-status since I was partly on F1 and partly on H1 (for more than 183 days)... please correct me if I am wrong.

[AtlantaTaxExpert]

Based on the information you have provided, it is likely that you are dual-status. However, that does not allow you to file both the regular tax forms and the Form 1040NR/1040NR-EZ. You file either one or the other, not both!

If you possess a "green card" or meet the substantial presence test, then you would use the regular tax forms. However, the fact that you were in the OPT program prevents you from meeting the substantial presence test because that makes you an "exempt person". That being the case, and, based on the info below provided, you would, In my opinion, file Form 1040NR-EZ and not claim the standard deduction.

[TheMartian]

If my F1 visa expired on May 15 and I was on H1 and physically in the USA for > 183 days after that date, then I am not exempt and do pass the substantial presence test, right?
But in any case, is it OK to only fill 1040NR-EZ even if I am on dual-status?

[AtlantaTaxExpert]

Okay, brain cramp on my part. You are NOT a dual-status alien.

The portion of the year when you were an "exempt" person is irrelevent in your case.

You meet the substantial presence test by virtue of the fact that:

1) You were present in the United States for 31 days during 2004.

And

2) You were present in the United States for 183 days during 2004, 2003 and 2002.

As you pointed out below, your conversion to H1 visa status by 15 May 2004 gives you enough days in 2004 by itself to qualify you as a U.S. resident under the second condition for the substantial presence test.

Now had your F1 visa expired on 15 July 2004, then you would not have qualified, because the days you are in country under the F1 visa do not count for the substantial presence test.

BOTTOM LINE: File the normal tax forms! Do not file the Form 1040NR.


Sorry about the confusion.

[TheMartian]

Does that mean that I can take the standard deduction?

[AtlantaTaxExpert]

Yes, if you file the normal tax forms (Form 1040/1040A/1040EZ), you can take the standard deduction.

You do understand that by filing this way, you are filing as a resident alien and are therefore required to pay both Social Security and Medicare taxes?

[TheMartian]

Yes, I started paying social security and medicare as soon as I switched to H1. I didn't pay while I was on F1... hopefully that won't have any effect on me filing 1040...
You have helped me out so much! Thanks!

[TheMartian]

I have another question then... I read that I have dual-status when:

*...
*...
* you hold a J, F, M or Q visa during part of the year, but later change to an H visa or other status eligible to use the substantial presence test, and pass the test

So that doesn't apply in my case?

[AtlantaTaxExpert]

The Martian:

I have reviewed both the 2004 Instructions for Form 1040NR and the 2003 Pub 519 and I cannot find any citation which states that you are a dual-status alien just because you converted from a F-1 visa to a H-1 visa. However, the timing of such a conversion could effectively make you a dual-status alien.

To be a resident alien, you must meet either the Green Card test or the Substantial Presence Test

You know about the Green Card test. The Substantial Presence Test specifies that you must be present in the United States for at least:

1) 31 days during 2004

AND

2) 183 days during the period 2004, 2003 and 2002, counting all the days of physical presence in 2004, but only one-third of the number of days in 2003 and one-sixth of the number of days 2002.

While you are on a F-1 visa, however, you are an exempt individual. The days you are present in the United State while you are in this “exempt individual” status do not count in the Substantial Presence Test.

Hence, if your F-1 visa expires on or after 2 July 2004, you cannot meet the Substantial Presence Test and, therefore, by definition, are a dual-status alien.

In your case, however, your visa expired on 15 May 2004. Therefore, you met the Substantial Presence Test and are considered a resident alien. For this reason, you should file the normal tax forms (Form 1040/1040A/1040EZ).

[AtlantaTaxExpert]

See my separate posting on this issue!