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This question is for a friend. They came to the United States as a student in 2009 on OPT/F-1 visa. In November of 2011 they started to work for the Department of Defense as a teacher. They had Social Security and Medicare taxes withheld and not refunded. In August of 2012 they were converted to an H-1B visa.

Should they have been refunded the Social Security and Medicare taxes that were withheld for 2011, and possibly 2012? It seems to depend on whether they were considered a resident or nonresident alien for those tax years, according to this. The Substantial Presence Test says as an F-1 student they are exempt. Would this count for 2011 and 2012, or just 2011? If they are due a refund, how should they go about getting it?

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A student on F1 working under the conditions of the OPT program is exempt from FICA taxes. Once you switch to H1b - you no longer have the exemption.

You can use form 8316 and form 843 to request the refund, if the employer cannot or will not refund the withholding. Employer is the first stop, but keep in mind that you have 3 years at most to request the refund after filing the tax returns for the year in question (or when they should have been filed, if you didn't).

Detailed instructions here.

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  • So just to clarify, they should be refunded for all FICA taxes withheld until August 2012 when they switched to H-1B? – Craig W Jul 4 '14 at 2:46
  • This is only true for F1 non-residents. (Although if the OP's friend hadn't been an international student in the U.S. prior to this, he is likely a non-resident as the first 5 calendar years as a student is exempt from the Substantial Presence Test.) – user102008 Jul 5 '14 at 4:16

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