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Can F-1 Student on OPT be considered as non-resident for tax purposes after 5th year?

Hi,

 I have been on the F1 visa since August 2013. I completed my undergraduate studies and then began working on the OPT since July 2017. I am currently on the STEM extension. Technically, my 5 years of non-resident for tax purposes ended in 2017, and as of 2018 I would be considered a resident (based on the substantial presence test). However, I see on the IRS website that even after 5 years a student can be considered a non-resident for tax purposes. Can you please help me understand if I fall into this category?

Thanks


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3 Replies
KarenJ
Intuit Alumni

Can F-1 Student on OPT be considered as non-resident for tax purposes after 5th year?

Please send the IRS link you are asking about.

Can F-1 Student on OPT be considered as non-resident for tax purposes after 5th year?

KarenJ
Intuit Alumni

Can F-1 Student on OPT be considered as non-resident for tax purposes after 5th year?

Yes, you can file a nonresident return and claim a closer connection to another country if you meet the below qualifications.

The second exception to the substantial presence test for aliens is set forth in Internal Revenue Code section 7701(b)(5)(D) and (E) and in Treas. Reg. § 301.7701(b)-3(b)(7)(iii). The exception is available only to alien students (not teachers/researchers, etc.), and contains four requirements for its application. The student -

  1. does not intend to reside permanently in the United States;
  2. has substantially complied with the immigration laws and requirements relating to his student nonimmigrant status;
  3. has not taken any steps to change his nonimmigrant status in the United States toward becoming a permanent resident of the United States; and
  4. has a closer connection to a foreign country than to the United States as evidenced by the factors listed in Treasury Regulation 301.7701(b)-2(d)(1).

The burden of proof is on the student to prove these four factors. To claim the exception for students on an income tax return, a student should attach Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition to the student’s Form 1040NR or 1040NR-EZ.

You will need to look at the factors listed in part IV of Form 8840.  You cannot use this form as you do not qualify as you were in the US more than 183 days in 2018. You need to attach a statement to your nonresident return and list the questions in part IV and insert your answer.  You then need to attach the your signed statement to the above 4 questions and the answers to your significant contacts with your home country and also attach Form 8843 to your 1040NR and mail the return to the IRS.

https://www.irs.gov/pub/irs-pdf/f8840.pdf

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