[SarhoshAmiral]

I am a bit confused about the 5 year rule, here is my situation:

2000 - I had a F-1 visa and I was in US for 21 days. This is the only time I used that F-1 visa
2001 - I got another F-1 visa for a different university and I stayed in US for 120 days.
2002 - 250 days with the F-1 visa from 2001
2003 - 250 days with the F-1 visa from 2001
2004 - 250 days with the F-1 visa from 2001
2005 - 130 days with the F-1 visa from 2001, and I got my H1-B approval on September 9th, 2005 (but I don't have a H-1 visa yet)

If I exclude F-1's, I don't meed the substial presence test so I was planning to fill as NonResident (I didn't want to use First Year option)

But since I was in US for 5 years (2000 - 2004), do I count the number of days on F-1 visa in 2005 for presence test as well?

Thanks

[AtlantaTaxExpert]

Yes. The exemption from the Substantial Presence Test that the F-1 visa afforded expired at the end of 2004.

You should file as a resident alien for 2005.

[SarhoshAmiral]

Thanks!

Just to be sure again, it doesn't matter if I had two different F-1 visas during those 5 years right? (one I used only for 3 weeks and the other since 2001 summer) and if I am filling as resident alien, do I have to fill any other form or just 1040-EZ?

Also what would have happened if the first visa was B (tourist visa) instead of F-1? My fiancé is in this situation now.

Thanks

[AtlantaTaxExpert]

Even if you were in country under an F-1 visa for only one day, that time "burns" that one year of the five-year exemption.

The tourist visa does not start the clock on the F-1 exemption. If she had a tourist visa, then returned under a F-1 visa, the clock starts when she arrived in country on the F-1 visa.