F-1 OPT: Resident or Non-Resident

[sbazinas]

Hello,

I was on an F1 Visa during the period Sept 2011-Jun 2015 but did not take advantage of my opt. In 2018 I got another F1 Visa for my master's degree and am currently in the middle of my OPT work in NY. Do I need to file form 1040 or 1040-NR? Also, can I still claim the FICA taxes back, or does the 5-year limit include my old F1.

Thanks

[DavidS127]

It depends.  You have been here on a student visa for part of least 5 calendar years, but you have to determine if you meet the other conditions to not be treated as an Exempt Individual.

You need to apply the IRS Publication 519 rules for an Exempt Individual at this link to your situation.  For your convenience, I've pasted a portion of that below.  When you are an Exempt Individual, you cannot count days of presence for the Substantial Presence Test.  So, the questions are whether you are no longer an Exempt Individual, and if not, when did you cease to be an Exempt Individual. 

Here's that text from Publication 519 (emphasis added):

"You will not be an exempt individual as a student in 2019 if you have been exempt as a teacher, trainee, or student for any part of more than 5 calendar years unless you meet both of the following requirements.

• You establish that you do not intend to reside permanently in the United States.

• You have substantially complied with the requirements of your visa.

The facts and circumstances to be considered in determining if you have demonstrated an intent to reside permanently in the United States include, but are not limited to, the following.

• Whether you have maintained a closer connection to a foreign country (discussed later).

• Whether you have taken affirmative steps to change your status from nonimmigrant to lawful permanent resident as discussed later under Closer Connection to a Foreign Country ."

[rtorresmeza]

If I got the US on August 14, 2014, does that mean start August 14, 2019 my employers should've started to withhold

[KarenJ2]

No, F-1 and J-1 visa's are counted by full or part years.  If you arrived on August 14, 2014 then 2014 is your first year (being in the US for even one day counts as a year). So your exempt years are 2014, 2015, 2016, 2017, and 2018.  Starting January 1, 2019 you start counting your days of presence in the US.  If you were in the US for 183 days or more you are a US resident and can use TurboTax to file your taxes.

Your employer should have started withholding January 1, 2019 unless you qualify for the student FICA exemption.

IRS Alien Liability for Social Security and Medicare. 

[rtorresmeza]

I am no longer enrolled in classes that provide credit, but I am in the optional practical training program (part of my visa) that allows me to work for 3 years. Does this qualify under the Student FICA Exemption?