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I came to the US to study on an F-1 visa in September 2013 and graduated in March 2015. Since then, I have been working on an F-1 OPT visa. In Oct 2015, my visa changed to H1B. In Sep. 2018, I switched my visa to F-1 and returned to school for PhD program. My visa remains F-1 since then.

What should my filing status be in 2019? Generally, I stayed in US for 5 years (2013-2018). But I'm not 100% sure, because my visa is H1-B in the year of 2016 and 2017. I don't know whether these 2 years are counted in the 5 years of an "exempt individual". I filed 1040 for my 2019 tax return but I heard nothing from IRS up to today (March 3 2021). Can someone give me some advice? Thank you very much.

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  • "I filed 1040 for my 2019 tax return but I heard nothing from IRS up to today (March 3 2021)." Unless you were supposed to receive a tax refund, there is no reason for the IRS to send you any mail. They don't confirm receipt of tax returns. This is why many people use e-file or send a paper return to the IRS via certified mail, so that they can receive confirmation of delivery/receipt. Mar 4, 2021 at 17:55

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You are an "exempt individual" as a student (i.e. days in student status are not counted in the Substantial Presence Test) unless you have been an "exempt individual" for some part of 5 previous calendar years. Assuming you had never been in F or J status before 2013, for 2019, you had only been an exempt individual for some part of 4 previous calendar years (2013, 2014, 2015, and 2018), and thus you were still an exempt individual for your days on F1 in 2019, causing you to not pass the Substantial Presence Test for 2019, and so you were a nonresident alien for all of 2019. Filing 1040 was incorrect, and you should amend it ASAP using 1040X with an attached 1040-NR. The IRS may accept an incorrect tax filing (and in most cases it is not apparent that it is wrong, because they don't know the facts of your stays over the years), but that does not mean you will not face consequences in the future if and when it is discovered.

For 2020, you have been an exempt individual as an F1 student for some part of 5 previous calendar years (2013, 2014, 2015, 2018, and 2019), so you are not an "exempt individual" for any of your days on F1 in 2020 (assuming you don't try to claim to be an exempt individual beyond 5 years by showing closer connection to a foreign country), and you thus (assuming you were in the US in 2020) pass the Substantial Presence Test for 2020 and are a resident alien for all of 2020. So you would file 1040 for 2020.

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  • Thank you for your detailed reply. It's very clear and helpful. I will submit 1040X and 1040NR for 2019.
    – gogogo
    Mar 5, 2021 at 23:19

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