Exempted from Substantial Presence Test for 5 years if I entered on F1 even if I Changed my Visa to H1B?

Forum|Forum|5 years ago
April 17, 2021
2 replies
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Hi all,

I first entered the US on 31 July, 2017 on an F1 visa. I started working on an OPT on July 15, 2019. My H1B was approved in 2019 but I did not make the switch from F1 to H1B until 16th February 2020, when I reentered the country on an H1B visa.

Based on the above dates and my current understanding of the calculations for the Substantial Presence Test (SPT), I can be considered a resident alien for tax purposes. This is based on the following calculations:

- Number of days spent in US in 2020 on H1B visa: These are the number of days from Feb 16th 2020 to November 25th 2020 which end up being 283 days. I was out of the country between January 1 2020 and February 15 2020, and November 26 2020 and December 31 2020.

- Number of days spent in US in 2019 on H1B visa: 0 days.

Therefore, the total number of days spent on H1B according to the rules set out by IRS are 283 days, which is greater than the 183 days threshold and so I qualify as a resident alien for tax purposes. Note that I did not count the days I was on F1. This is my current understanding.

However, this is where the confusion is: I was told by a tax consultant that I am exempt from counting all of the above days towards my SPT because I first entered the US on an F1 visa. According to them, my exempted days would finish after the F1's 5-year exemption period ends. This applies to me for all tax years between 2017-2022 (ignoring the exact dates for now) even if I made the switch from an F1 visa to an H1B visa during that time. Is this really the case? Or should I be using the days on H1B towards the SBT and file as a resident?

DanaB27

Yes, you should be using the days on H1B towards Substantial Presence Test and you are a resident because you met the Substantial Presence Test in 2020. You are no longer exempt because you switched to the H1B visa.

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mhaseebmlkAuthor

Thank you for the response @DanaB27!

Even though I was a resident for most part of the year, I was still on F1 from January 1st, 2020 to February 15, 2020. Do you happen to know what is IRS's recommendation for such a case where you have dual status in the same year?
Because I qualify as a resident, does that mean that I can use TurboTax to file my returns?

DanaB27

You are a dual-status alien since you were a U.S. resident alien and a nonresident alien in the same tax year.

Since you are a resident alien at the end of the tax year, you will need to do the following:

Prepare form 1040 for your period of residency - TurboTax can do this for you.
Prepare form 1040NR for your period of non-residency.
Print Form 1040 to be filed by mail.
Attach form 1040NR to your form 1040 and write "Dual-Status Return" on the top of page one of Form 1040.
Mail your tax return to the IRS.

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taxnoob45

I am in a similar situation. What did you end up doing? Any advice?

DaveF1006

To clarify, could you give some specific details about your issue?

@taxnoob45

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taxnoob95sm

I would like to know for my case too.

I moved to the US in August 2018 on F1 visa and moved to Canada in first week of June 2023.
While on OPT, I worked full time in the US (OPT-compliant) from February 2021 until I left.
For my entire time in the US, I was on F1.

I was told by a couple of tax consultants that I could have been a non-resident for 2023, considering the 5 exempt years (2018-2022) and less than 183 days in 2023.

I would like to confirm if this is right, so that I might consider amending the 2023 US tax return.