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My question is similar to the one here and concerns my 2022 US tax return: Federal income tax as nonresident alien working outside of USA remotely for US employer

For 2022, I filed as a non-resident (I did not pass SPT and I have moved permanently away from the US in late 2022). According to my I-94, I spent around 50% of the days while I was employed by a US employer in the US, and the other 50% abroad. That is, while working for a US employer, I worked 50% in the US and 50% abroad.

My employer withheld FICA taxes. My question is: I know that I am entitled to some refund, but I am not sure whether it is 100% of the FICA taxes that were withheld or only 50%?

According to here (https://www.irs.gov/individuals/international-taxpayers/aliens-employed-in-the-us-social-security-taxes), it says that nonresident aliens on H-visas are exempt from FICA taxes, so I could be in for a 100% refund.

According to here (https://www.irs.gov/individuals/taxation-of-alien-individuals-by-immigration-status-h-1b), it says that "An H1-B alien who is paid wages in exchange for personal services performed within the United States is liable for U.S. Social Security and Medicare taxes on such wages, regardless of whether he or she is a U.S. resident alien or nonresident alien, unless he or she is engaged in a type of employment that under U.S. law is not subject to U.S. Social Security and Medicare taxes. Please refer to Publication 15 for more information." (emphasis mine)

I interpret this to mean that I am liable for FICA taxes for the wages earned while in the US. So, under this interpretation, I would be in for a 50% refund of my FICA taxes.

So, which is it, 50% or 100% refund?

Edit: I may actually have misread this publication https://www.irs.gov/individuals/international-taxpayers/aliens-employed-in-the-us-social-security-taxes . I think it says that "Wages paid to nonresident aliens employed within the United States by an American or foreign employer, in general, are subject to Social Security/Medicare taxes for services performed by them within the United States, with certain exceptions based on their nonimmigrant status." and that there are no exceptions for H1-B visas from this rule.

So, I think it is a 50% refund, but it would be great if someone could confirm.

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According to here, it says that nonresident aliens on H-visas are exempt from FICA taxes, so I could be in for a 100% refund.

That page specifically talks about H2 and H2A in that context. You had H1b.

I interpret this to mean that I am liable for FICA taxes for the wages earned while in the US. So, under this interpretation, I would be in for a 50% refund of my FICA taxes.

You're liable for FICA taxes while working in the US. You should ask your employer to correct this and return the portion of the withholdings they took in error.

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  • Great, thanks. That's my understanding, too. Do you know of any guidance on how to exactly calculate the US working days? I counted the days on my I-94: I was employed during 210 days in 2022 for this US employer (including weekends and holidays), 105 of which I was in the US. So a simple way to calculate the refund would be to request a 50% refund of the total FICA taxes that were withheld. However, of the 105 days I spent in the US, some of them were federal holidays and some were weekends, so I didn't work on all of these days. Do I need to take that into account somehow?
    – user467597
    Apr 15 at 18:20
  • @user467597 I think you'll need to discuss this with the employer, but if you're not paid hourly then probably not. It's covered by the pay period.
    – littleadv
    Apr 15 at 18:26

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