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I have found much information about this online, in that if you have been in F1 visa for over 5 calendar years, you can be considered a resident alien for tax purposes. However, my situation is sort of complex because:

My F1 began in August 2009, and have gone to India for vacations average 2 months/yr, and my employer exempt me from FICA taxes in 2014 (the 6th year and year in question).

According to 5 year rule (2013 being last year as non-resident exclusive), I would be resident for 2014 taxes, but not sure if that means 'calendar days present in country'. I graduated in 2013, and my OPT began in September 2013. I filed 2013 taxes as NR. My f1 visa expired in July 2014 but my EAD was valid - which allowed me to be in the US.

Can I still file resident taxes for 2014, even though I did not pay FICA (SS and medicare) taxes? Can I pay them back to file as resident?

I want to claim my sister as a dependent who lived with me, I paid for all her support, and some of her education. So also wanted to use her 1098-t for education benefits. Would I need to show proof of her support and education payments?

I am not going on H1b anytime soon. Would really appreciate a knowledgable answer in this complex situation.

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  • Is your sister US resident? A qualifying dependent must be a U.S. citizen, U.S. national, or a resident of the U.S., Canada, or Mexico.
    – littleadv
    Commented Apr 4, 2015 at 18:28
  • forum.visataxes.com/… - That showed that the dependents just need to pass relationship, support and age tests. My sister is an F1 student in the States. Note: On my browser, the link needs to be copy pasted to work. Open it, copy paste.
    – tzharg
    Commented Apr 4, 2015 at 18:40
  • That is incorrect.
    – littleadv
    Commented Apr 5, 2015 at 18:38

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Your days of physical presence in the US do not include "exempt" days when you were on F1 status, for 5 years. Once the 5 years are over you can start count physical presence days (unless your country has a tax treaty with the US that provides different definition).

You cannot claim non-resident as a dependent, again - assuming your country doesn't have a tax treaty with the US that says differently (I believe India and Korea have such clauses, Canada and Mexico explicitly allowed). See IRS Publication 501:

Nonresident aliens. Generally, if you are a nonresident alien (other than a resident of Canada or Mexico, or certain residents of India or Korea), you can qualify for only one personal exemption for yourself. You cannot claim exemptions for a spouse or dependents.

See the IRC Sec. 152:

(A) In general

The term “dependent” does not include an individual who is not a citizen or national of the United States unless such individual is a resident of the United States or a country contiguous to the United States.

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  • Thanks. I am an Indian citizen and in the text it said that Indians are allowed to claim a dependent. Would I be allowed then? 2013 was my 5th year counting both 2009 and 2013. I arrived in Aug 2009 though. Do you know of a definitive answer in my case, or might know a CPA who I could consult? Thank You
    – tzharg
    Commented Apr 6, 2015 at 15:53
  • @tshar1000 since you're talking about a specific treaty provision, mentioning your country in the question would be helpful. I suggest you talk to a EA/CPA experienced with Indo-US tax treaty.
    – littleadv
    Commented Apr 6, 2015 at 16:17
  • Thanks @littleadv. It's hard to find those type of CPAs. I have searched and couldn't find any online, or can't tell the normal ones apart. I visited H&R block and they didn't have as much information about my specific situation as I did, and plainly went with the safest option of a 1040NR. Just stuck and am willing to consult a CPA who knows this thoroughly.
    – tzharg
    Commented Apr 6, 2015 at 20:59

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