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FICA taxes withhold

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#1
Hi,

my employer did not withhold any Fica taxes from my paycheck for the last 2 yrs, because he thought that being me under OPT visa, i was exempt.
But due the fact i have been living in the US for more than 10 yrs now, i was eligible and expected to pay FICA taxes even if under OPT visa.

After i realize this, i went to him asking how we can fix the error, and he said it was too late and refused to adjust my FICA taxes, so i'm now basically losing 2 yrs of social security contribution.

Any idea on what my options are?
i live in New York.

Thank you
 


LdiJ

Senior Member
#3
What makes you think your OPT IS subject to FICA?
Someone on an F1 visa with a work permit can be treated as a resident for taxes purposes once they have been in the US for at least 5 years. I believe that might be what the OP is thinking causes him to be subject to FICA while on an OPT visa. From the little I have read I am not certain that is the case. The OP really needs to consult someone who specializes in tax relating to F1 and OPT visas.
 

FlyingRon

Senior Member
#4
Agreed. Usually F-1 OPT isn't subject to FICA. Only when the work represents a transition to some other work authorization (change to F-2, h1b, etc... ) does it start to be treated differently. He should confirm with a tax advisor as to whether his assumption is correct.
 
#5
Agreed. Usually F-1 OPT isn't subject to FICA. Only when the work represents a transition to some other work authorization (change to F-2, h1b, etc... ) does it start to be treated differently. He should confirm with a tax advisor as to whether his assumption is correct.
The rule is that persons who meet the substantial presence test are treated as resident aliens for tax purposes and are subject to FICA taxes unless some exemption in the code is met. A student in the U.S. on a F-1 visa who meets the terms and conditions of that visa is exempt and thus treated as a resident alien for the first five years that he or she is present on that F-1 visa. After five years, the it's no longer automatic. As the IRS says in Publication 519:

You will not be an exempt individual as a student in 2017 if you have been exempt as a teacher, trainee, or student for any part of more than 5 calendar years unless you meet both of the following requirements.
  • You establish that you do not intend to reside permanently in the United States.
  • You have substantially complied with the requirements of your visa.
The facts and circumstances to be considered in determining if you have demonstrated an intent to reside permanently in the United States include, but are not limited to, the following.
  • Whether you have maintained a closer connection to a foreign country (discussed later).
  • Whether you have taken affirmative steps to change your status from nonimmigrant to lawful permanent resident as discussed later under Closer Connection to a Foreign Country .
If you qualify to exclude days of presence as a student, you must file a fully completed Form 8843 with the IRS.

If a person has been in the U.S. for ten years or more, that starts to make it hard to claim that the persons does not intend to stay here permanently. After all, if one is here only temporarily one would expect the person would return home before too many years had passed. So the longer the person stays, the more skeptical the IRS agent will be that he or she is still exempt from being a resident alien because of the F-1 visa. The OP may want to see a tax attorney who practices in the area of taxation of foreign persons for a review of the facts and get an opinion as to whether or not he or she is still eligible to be considered exempt.
 
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