F1 to H1B Tax Return

For the tax year of 2018, you might be likely to file as a nonresident on Form 1040NR.  

Here is why:

As a F-1 visa holder, you are exempt (not counting days) for five years from the first year you enter the US.  In your situation, you are considered as a nonresident for 2014-2018.  As you change your status to an H-1B visa in October 2018, which is not exempt, IRS allows you to start counting days from October 2018.  Technically, you are considered as a non-resident from January 1st - October 2018 while you are still on the F-visa.  From October-December 2018 when you are on the H-visa, and since you do not stay more than 183 days from October until the end of the year, you are considered as a nonresident alien for the whole year.

You have another option.  If you anticipate you will be staying in the US for at least 183 days in the year of 2019 or meet the Substantial Presence Test SPT, you can make an election to treat yourself as a resident from October 2018, to file as a dual-alien alien. Please see FirstYearChoice- Residency Starting Date under the First-Year Choice.  If you meet the requirements, for the year of 2018, you will be filing as a nonresident for the first 10 months and a resident for the rest of the year.  

Hope it helps!

Thanks a lot for your answer!

So I think I'm gonna file the 1040NR this year. However, in 2020 I will have passed the SPT so, I'll be able to file form 1040 online using turbotax at that time. Is that correct?

Thanks!

That's correct.

Hey I'm currently in the same situtation and wondering if its okay to just file a 1040 instead of dual status or 1040NR.

Thanks

I am exactly in the Same situation. I was advised by a lawyer to file as resident. He did not mention anything about sPT. He just advised to file as resident. Also I was suggested to file FICA and article 21(2). any insight on what these are and should i apply ?

Thanks

Mine is a very similar case:
Came to US in 2015 December with F1, got H1B in 2018 October, Married(Out of USA) in 2018 December (Spouse isn't in USA at that time, she entered USA in February 2019). Now Should I file 1040 NR for only me? Or file jointly 1040 with ITIN application form  (W-7) for my spouse? I have already done my tax returns in Turbo Tax with 1040 and got a certified document for tax consultant approved by IRS. I am ready to post. What should I do now? Please help.

If file dual status return, standard deduction still cannot be claimed :(

Hi! I came to the USA in July 2014 and was on an F1 visa until May 15, 2019, and been on cap-exempt H1B since May 16, 2019. Since I was on H1B for more than 183 days in 2019, can I consider myself as a Resident Alien for the year and use the standard deduction. Please let me know. any help appreciated.

Yes, you can.  You are considered a resident in 2019 and can use the standard deduction if you don't have enough to itemize.

You are considered as a nonresident for five years from the year you first entered the US ( 2014-2018) Starting from January 1, 2019, if you have stayed more than 183 days, you are a US resident for tax purposes. 

@prana

Hi,

I am in a similar boat, but a year later. I came in 2014 Aug as well. I was cap-exempt from May 2019, but I got my H1-B in Oct 2019. Can I use turbo tax for 2019 tax returns? Do I have to file NR for the year 2019?

Thanks,

Utsav

You need to file a resident return and can file using TurboTax.

I assume you were an F1 visa holder until the end of 2018 (exempt 5 years or part years).  Starting January 1, 2019 you had to start counting you US days of presence for the Substantial Presence Test.  If you were in the US more than 183 days in 2019, you need to file a US resident return.

I entered US in Aug of 2015 on F1 Visa and received my H1B Approval in December 2019 in Consular Processing. I had to go to India to get the new H1B visa stamp and enter US again Jan 2020. I am married and my wife is on F2 visa here in the US since August 2019. Can i file 1040 or should i file 1040NR?

You will need to file a nonresident return.  You cannot make an election to file as married filing jointly as you were not a part year resident in 2019. 

Here is my situation, am I dual status or resident?

If you were on a J1 student visa and were in the US less than 5 years or part years  in 2019 or a J1 scholar visa for less than 2 years or part years in 2019, then you will need to file a dual status return.  

If you were in the US for more than 5 years or part years as a J1 student, or in the US more than 2 years or part years as a J1 scholar in 2019, then you would be considered a resident.

Thank you so much for your reply!

I was in the US as a J1:
2011: 30 days
2012: 90 days
2016: 5 months
2017, 2018, 2019: Full year
Would that count for 5 years? I'm not sure if I have to be the entire year in order for it to count.

Also, when does the H1B start counting? When I get the stamp on my passport or when I get the letter?
I got the approval letter in December 2018, and the stamp on May 2019.
If it's when I get the approval letter, and since I got in 2018. Wouldn't that make me a resident for 2019?
Thanks!

What date did you enter the US on a J1 visa?

Thanks for the reply!

First time being a J1 student (work and travel)
Entered: 12/12/2011
Left: 03/09/2012

Second time being a J1 student (MBA, then got a job that sponsored H1B)

Entered: 07/26/2016
H1B Approval: 12/23/2018

Thanks for the reply! @KarenJ2 

Following up on my previous message...

J1 (work and travel): Entered: 12/12/2011; Left: 03/09/2012
J1 (MBA): Entered: 07/26/2016; H1B Approval: 12/23/2018

I was a J1 (student) and I did my taxes in 2011, 2012, 2016, 2017, and 2018. That's 5 calendar years.
So in 2019 I must be considered a resident. Is that correct?

Your 5 years on a J1 visa are 2011, 2012, 2016, 2017, and 2018.  You are a US tax resident for 2019 and can use TurboTax.

I entered the US on 25th Aug 2016 on F-1 Status. My H1B got approved by change of status on 5/21/2019 and I was on Cap-Gap H1B status until 9/30/2019. Starting 10/1/2019, I have been in H1B Status. Can I file as a resident for Tax Year 2019 using Turbotax?

I really appreciate any help or clarification.

Any clarification would be highly appreciated. Thanks

@pagenplant , based on your post - (a) your exempt period  lasts from 2016 through 2020 and therefore absent any change of status you would be Non-Resident Alien;  (b) your status change was affected on 10/01/2019 and therefore your exempt status ended on that date  --- you start counting days towards substantial presence test; (c) during 2019 you had only 92 days of countable presence and therefore you would still be Non-Resident Alien for 2019 and file a form 1040-NR.

If you do have the option of requesting to be treated as a resident for 2019  ( it may or may not help you taxwise though ) --- if you meet   (1) you were not a Resident/ Resident for Tax purposes in 2018 ;  (2) for the test period  of 10/01/2019 you have been present in the USA for at least 31 days and you you were present for at least 75% of the days in the test period and (3) you will meet the substantial presence test in 2020.  I think based on your post you would qualify. However you cannot request this treatment till you have met the substantial Presence Test in 2020.

Does this help or do you need more help ?

Thank you for the response. With respect to the second part of your answer,
to answer your questions- (1) No, I was not a resident for tax purposes in 2018.
(2) I was present in USA for at least 31 days and greater than 75% of the days in the test period after 10/1/2019. (3) As of today, I have met the substantial presence test and below are my calculations:
Days in 2020 till today: 173 days
Days in 2019: (1/3)*92 (Days spent in test period in the US since Oct 2019)
Total days: 173+30=203 days which is greater than 183.
My question is, based on this information, can I file as a Dual Status Alien for Tax Year 2019?

I would appreciate any clarification.

Thanks,

Yuvaraj