Can F1 studnt VISA holder file as resident alien in the first 5 years?

[mytheresa]

Hi there, I am an international student from China who just graduated in May 2017. After graduation, I started working under my F1-OPT status. Can I choose NOT to file form 8843 and DO count days I stay in U.S so that qualify myself as a resident alien when file tax return? Thank you for your help! 

[DS30 · Accepted solution]

No - you cannot choose to claim the days you are exempt from the substantial presence test under the F-1 visa class in order to file as a resident alien.

However, if you are a Nonresident Alien who will become a Resident Alien under the Substantial Presence test in the year following this taxable year, you may elect to be treated as a Dual Status Alien for this taxable year and a Resident Alien for the next taxable year if you meet certain tests. Refer to the First Year Choice area, under Dual-Status Aliens, of Chapter 1 in Publication 519, U.S. Tax Guide for Aliens.

[sambhav-jain]

Hi @TurboTaxDeeS:
I was on F-1 from Jan-Sep 2017 and H-1b from Oct-Dec 2017. And my spouse and I chose to be treated as resident aliens for all of 2017 using first-year choice. However, I'm not sure how to handle the social security and medicare taxes which I don't owe on F-1. So it should only account for Oct-Dec for SS and medicare taxes. But I see no option in TurboTax to enter these dates. Does this mean I was taxes for entire year?

[Rajshree7]

@sambhav-jain, were you able to resolve this? We are in the same situation and wondering about paying Social Security and Medicare for the non-resident period Jan 1 to Sept 30. Can you please help.

[LinaJ2020]

TurboTax does not handle refunding you the paid FICA taxes.

Since you made the election to claim from a non-resident to resident, you are a dual-status in that tax year.  A nonresident from January to September and a resident from October to December.  If your employer has withheld FICA taxes from January to September, you would need to contact your employer to get the money back.  They might need to issue you a corrected Form W-2 to refund you the excess FICA you have paid.  

If you cannot obtain the FICA from your employer, you can file a Form 843 "Claim for Refund and Request for Abatement" to request a refund from IRS. 

To file a Form 843, click here https://www.irs.gov/forms-pubs/about-form-843

@Rajshree7

[Sharon2017]

Pub 519 says: 

"as a student temporarily in the United
States on an F visa, you do not have
to count the days you were present
in the United States as a student
during the first 5 years in determining

if you are a resident alien under
the substantial presence test."

It appears to me that you can still choose to count those days to meet with the substantial presence requirement, even though you don't have to.