It forks: if you are still a nonresident alien for tax purposes doing authorized, degree-related OPT, Social Security and Medicare should not be withheld; if you are a resident alien for that tax year, they are generally due.

§3121(b)(19)

Service which is performed by a nonresident alien individual for the period he is temporarily present in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101(a)(15) of the Immigration and Nationality Act, as amended, and which is performed to carry out the purpose specified in subparagraph (F), (J), (M), or (Q), as the case may be;

Nonresident alien student under F-1, J-1 or M-1 visa status

These nonresident alien students are exempt from Social Security Tax and Medicare Tax on wages paid to them for services performed within the U.S. To qualify for the exemption, the services performed need to be allowed by USCIS for these nonimmigrant statuses, and such services are performed to carry out the purposes for which such visas were issued to them. Practical Training student employment on or off campus.

Limitations on exemption

The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1 status who become resident aliens for tax purposes.

§7701(b)(5)(E)(ii)

For any calendar year after the 5th calendar year for which an individual was an exempt individual under clause (ii) or (iii) of subparagraph (A), such individual shall not be treated as an exempt individual by reason of clause (iii) of subparagraph (A), unless such individual establishes to the satisfaction of the Secretary that such individual does not intend to permanently reside in the United States and that such individual meets the requirements of subparagraph (D)(ii).

(b)(7)(iii)

An individual will not be able to exclude days of presence as a student if the individual has been exempt as a teacher, trainee, or student for any part of more than five calendar years, unless it is established to the satisfaction of the district director that the individual does not intend to reside permanently in the United States and has substantially complied with the requirements of the student visa providing for the individual's temporary presence in the United States.

Substantial Presence Test

To meet this test, you must be physically present in the United States (U.S.) on at least: 1. 31 days during the current year, and 2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting: * All the days you were present in the current year, and * 1/3 of the days you were present in the first year before the current year, and * 1/6 of the days you were present in the second year before the current year.

Form 8843

If you qualify to exclude days of presence as a student, you must file a fully-completed Form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition with the IRS. If you are already filing an income tax return, attach Form 8843 to your income tax return.

pages 1–3

Federal regulation permits F-1 nonimmigrant students to apply for authorization to engage in Optional Practical Training (OPT) that is directly related to their major area of study. The inquiry is whether there is a logical connection between the duties involved in the practical training opportunity and the student's major area of study.

If a student uses a temporary or staffing agency to place them in a training opportunity, the agency cannot complete and sign the Form I-983, 'Training Plan for STEM OPT Students.' Only the E-verified employer that provides the actual training relevant to the student’s qualifying STEM degree is authorized to sign and complete the Form I-983.

Section 13, Refunding amounts incorrectly withheld from employees

If you withheld more than the correct amount of income, social security, or Medicare tax from wages paid, repay or reimburse the employee the excess. Any excess income tax or Additional Medicare Tax withholding must be repaid or reimbursed to the employee before the end of the calendar year in which it was withheld. Keep in your records the employee’s written receipt showing the date and amount of the repayment or record of reimbursement.

page 61, Refund of Taxes Withheld in Error

If social security or Medicare tax was withheld in error from pay that is not subject to these taxes, contact the employer who withheld the taxes for a refund. If you are unable to get a full refund of the amount from your employer, file a claim for refund with the IRS on Form 843.

pages 61–62, Refund of Taxes Withheld in Error

Attach the following items to Form 843. • A copy of your Form W-2 to prove the amount of social security and Medicare taxes withheld. • A copy of your visa. • Form I-94 (or other documentation showing your date of arrival or departure). • If you have a J-1 visa, attach a copy of your Form DS-2019. • If you have an F-1 or M-1 visa, attach a complete copy of your Form I-20. • If you are engaged in optional practical training, attach Form I-766. • If you are engaged in employment due to severe economic necessity, documentation showing permission to work in the United States. • A statement from your employer indicating the amount of the reimbursement your employer provided and the amount of the credit or refund your employer claimed or you authorized your employer to claim. If you cannot obtain this statement from your employer, you must provide this information on your own statement and explain why you are not attaching a statement from your employer or on Form 8316 claiming your employer will not issue the refund. • If you were exempt from social security and Medicare taxes for only part of the year, pay statements showing the tax paid during the period you were exempt. Send Form 843 (with attachments) to: Department of the Treasury Internal Revenue Service Center Ogden, UT 84201-0038

instruction above line 1

you must first try to get a refund of the Social Security taxes from your employer before filing a claim with the Internal Revenue Service. If you did this but have not been able to get a refund from your employer, please complete the remainder of this form and attach it to your claim Form 843.

Separate Form Required

Generally, you must file a separate Form 843 for each tax period or fee year or type of tax or fee. Generally, you must file a claim for a credit or refund within 3 years from the date you filed your original return or 2 years from the date you paid the tax, whichever is later.

§6511(a)

Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid.

page 14, Repayments

If the repayment was for a prior year, you must file Form W-2c with the SSA to correct only social security and Medicare wages and taxes, and furnish a copy to the employee.