Took first year choice but did not meet SPT by 30 days

[shashankholla]

I transitioned from F1 visa to H1B in 2024 and hence my CPA suggested doing First Year Choice. But I realised that he did not file for an extension and filed 1040 for me on Apr 15 2025 and nor did he attach a letter requesting for first year choice. Going back to first year choice rules, this is incorrect. https://www.irs.gov/individuals/international-taxpayers/tax-residency-status-first-year-choice

Should I file an ammendment now? Or can I just send a letter to IRS?

[DaveF1006]

Yes, I suggest your CPA file an amendment to correct the mistake. Here is what I suggest your CPA do.

1. File an Amended Return (Form 1040-X): You need to "correct" the original filing.
2. Attach the Missing Statement: Include the formal First-Year Choice election letter now, even though it's late.
3. Explanation of Error: In the "Part III - Explanation of Changes" section of the 1040-X, state that the original return was intended to be a First-Year Choice election but the required statement was omitted due to professional error (CPA oversight), and that you did meet the SPT in 2025 before the original return was filed.
4. Dual-Status Formatting: Since First-Year Choice makes you "Dual-Status," the top of your 1040-X should technically reference the resident period, and you should attach a "pro-forma" 1040-NR for the F1 portion of the year (January until your H1B start/arrival date).

[shashankholla]

Thanks for your prompt reply. Two things to follow up:

1. Can I amend it to 1040NR instead of taking the first year choice? Is that an option since I never told I want to take the first year choice?

2. Confirming what you said in (4) - If I do take the first year choice (properly), I need to fill a 1040NR (for wages from Jan to oct when I changed to h1 from f1) + 1040 (the 31day period starts from oct 1 to dec31). And I will also need to file FBAR if needed (I will not have to file FBAR if I instead dont do first year choice).

[DaveF1006]

Yes, you could amend the return to 1040 NR, but there are considerations to make. First of all, you lose the Standard Deduction. Most people take the First-Year Choice specifically to claim that deduction for the "resident" portion of their year as this is more advantageous to them tax-wise. 

You are correct. If you amend to a 1040 NR, you do not have FBAR or FATCA filing requirements.