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jessie98
New Member

I came to US in Sep 2010 as F-1 Visa. My OPT period is Jan-Dec 2017, then switched to H1B. I am a full time employee in 2017. Do I count as a non-resident Alien for 2017?

My F-1 status is from Sep 2010 - Jan 2017. I graduated on Dec 2017 and started OPT from Jan-Dec 2017. In Dec 2017, my visa status changed to H1B. I am full-time employee since Mar 2017. Am I a nonresident alien or a resident alien?

1 Best answer

Accepted Solutions
N-Hu
Level 2

I came to US in Sep 2010 as F-1 Visa. My OPT period is Jan-Dec 2017, then switched to H1B. I am a full time employee in 2017. Do I count as a non-resident Alien for 2017?

F1 students during the first 5-year period are exempt from Substantial Presence Test and are treated as Non-Resident Alien. 

Since 2017 is your 7th year at US, if you meet the requirements of the Substantial Presence Test, you will be treated as Resident Alien. 

To meet this test, you must be physically present in the United States (U.S.) on at least:

  1. 31 days during the current year, and
  2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
    • All the days you were present in the current year, and
    • 1/3 of the days you were present in the first year before the current year, and
    • 1/6 of the days you were present in the second year before the current year.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

In most of the cases, if you were in US more than 183 days in 2017, you are a Resident Alien for tax year 2017. (File form 1040)

If you stayed in US less than 183 days in 2017. You're in dual status since you switched to H1B in 2017. (File form 1040NR, explain status change in Schedule OI)

However, you can still claim tax treaty exemption as a Resident Alien (Form 8833)

Example: The U.S./ China tax treaty does not have a time limitation and an F-1 or J-1 student from China who qualifies for the treaty can use the treaty benefit as long as he/she is a student in good standing, including the period of time the student is engaged in practical/academic training after graduation.
This means that even after a student from China becomes a resident for tax purposes under the substantial presence test, he/she may still claim the U.S./China tax treaty benefit. 

Under the Internal Revenue Code, a student may become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, the treaty allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States.

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1 Reply
N-Hu
Level 2

I came to US in Sep 2010 as F-1 Visa. My OPT period is Jan-Dec 2017, then switched to H1B. I am a full time employee in 2017. Do I count as a non-resident Alien for 2017?

F1 students during the first 5-year period are exempt from Substantial Presence Test and are treated as Non-Resident Alien. 

Since 2017 is your 7th year at US, if you meet the requirements of the Substantial Presence Test, you will be treated as Resident Alien. 

To meet this test, you must be physically present in the United States (U.S.) on at least:

  1. 31 days during the current year, and
  2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
    • All the days you were present in the current year, and
    • 1/3 of the days you were present in the first year before the current year, and
    • 1/6 of the days you were present in the second year before the current year.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

In most of the cases, if you were in US more than 183 days in 2017, you are a Resident Alien for tax year 2017. (File form 1040)

If you stayed in US less than 183 days in 2017. You're in dual status since you switched to H1B in 2017. (File form 1040NR, explain status change in Schedule OI)

However, you can still claim tax treaty exemption as a Resident Alien (Form 8833)

Example: The U.S./ China tax treaty does not have a time limitation and an F-1 or J-1 student from China who qualifies for the treaty can use the treaty benefit as long as he/she is a student in good standing, including the period of time the student is engaged in practical/academic training after graduation.
This means that even after a student from China becomes a resident for tax purposes under the substantial presence test, he/she may still claim the U.S./China tax treaty benefit. 

Under the Internal Revenue Code, a student may become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, the treaty allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States.

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