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I came to the US to study on an F-1 visa in August 2014 and graduated in May 2018. Since then, I have been working on an F-1 OPT visa. In 2019, I applied and received my H1B visa - specifically, my I-797 Notice of Action specified a notice date of August 2019.

What should my filing status be in 2019? Do I have the option of filing as a non-resident alien or a dual status return or do I have to file as a resident alien?

Some considerations I had while trying to figure this out:

  • I thought originally that a non-resident alien filing might be possible as I am on the F-1 visa until August and thus am "present" in the US for less than 183 days according to the substantial presence test
  • My company has also treated my tax withholdings in the same manner - withholding additional amounts only after my H1B visa was approved in August 2019
  • But I read elsewhere that the 5 calendar year criteria includes the first stub year as a full year (i.e. my F-1 status only lasts till December 2018 since August to December 2014 is counted as one year).

Would appreciate any advice. Thanks.

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You are generally not an "exempt individual" (exempt from the Substantial Presence Test) as a student if you have been an exempt individual for any part of 5 previous calendar years. For 2019, you have been an exempt individual for some part of 5 previous calendar years (2014, 2015, 2016, 2017, and 2018) -- yes, although you were only on F1 for part of 2014, that is still "any part" of 2014 -- so you are not an exempt individual as a student for any of your days on F1 in 2019.

Therefore, all of your days on F1 and H1b status in 2019 count in the Substantial Presence Test. You pass the test and you are a resident alien for all of 2019.

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  • Thanks for the response. Would the Closer Connection Exception apply and override the substantial presence test if I have significant ties to my home country? irs.gov/individuals/international-taxpayers/… My reasoning is that I am on the F-1 visa until August 2019, and thus am "present" in the US for less than 183 days. Additionally, I am not a tax resident of the US while on the F-1 visa and thus still a tax resident of my home country. Lastly, my permanent home, family and personal belongings are all in my home country.
    – thbcm
    Commented Jan 22, 2020 at 3:39
  • @thbcm: No, you are present in the US for the purposes of the SPT for all of 2019, including your time on F1 and H1b, so you cannot use Closer Connection to a Closer Country. However, you could potentially claim to be an exempt individual as a student even if you have already been an exempt individual for some part of 5 previous calendar years, if you can establish that you do not intend to reside permanently in the US. If you can claim that, you could be an exempt individual for your time on F1 in 2019, and you would not pass the SPT for 2019, and thus be nonresident for all of 2019
    – user102008
    Commented Jan 22, 2020 at 7:20

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