Hi, I came to US on F1 visa (Aug 2014) and have filed 1040NR for tax years 2014-2018 (5years). My H1B got approved on Jan 2020. What form should I file for 2019?

[zishan007]

Since my 5 years was completed at the end of December 2018 (substantial presence test). Should I have filed 1040 (resident tax) instead of 1040NR in 2019?

[KurtL1 · Accepted solution]

You are eligible to file Form 1040 for the 2019 tax year.

When filing your return for the 2018  tax year you should have filed Form 1040NR.

Under a F-1 Visa you were unable to count the days present in the United States for any part of five calendar years toward meeting the Substantial presence test. Since you entered the U.S. in 2014 as of January 1, 2019 the five year limitation had been met.

In 2019 you satisfied the 183 days present requirement to be considered a Resident Alien for tax purposes. 

[zishan007]

Thanks Kurt! I did file 1040NR for 2018 tax year and that comes as a big relief that I didn't mess up. 

[zishan007]

Thanks Kurt! I did file 1040NR for 2018 tax year and that comes as a big relief that I didn't mess up. My next question is regarding the FICA tax (Social security and Medicare tax). I was not FICA tax until 1/17/20 paycheck from my employer due to F1 status. I was F1 status from Aug 2014 and my employer file for H1B in April 2019 and H1B petition got approved on 1/7/20. By default h1b start date is October 1st regardless of approval. My question is should I pay IRS back FICA taxes starting from the period of October 2019? How will this get adjusted in 1040 form because for 2019 tax year I have to file as resident?

[LinaJ2020]

The question here is when your visa status legally changed from F to H ?  To my understanding, it is changed when your petition is finally approved.  I would suggest you consult your immigration attorney to verify.  If the effective date is 1/7/2020, you are set.  No need to contact your employer.  For more information, see H-1B

However, if the date is October 2019, please see the followings:

I will suggest you communicate with your employer to resolve the issues.  Employers who do not comply with the employment tax laws may be subject to criminal and civil sanctions for willfully failing to pay employment taxes. For now, you will still file your 2019 tax return as usual.  If things need to be changed on the W-2, you can always amend later.  I am attaching the following links for your references:

FICA withholding

Employer vs Employee responsibilities