It forks: give W-8BEN and expect 30% federal withholding unless you meet every India-treaty condition, in which case give Form 8233; do not use W-8ECI to avoid withholding.
“I am on F-1 post-completion OPT (nonresident alien for tax purposes, from India) and just started doing part-time 1099 contract work for a US company. Which tax form should I provide to the client—W-8BEN, W-8ECI, or 8233—and will they withhold taxes?”
Summary
You are not choosing among three equivalent forms: W-8BEN documents foreign status, while Form 8233 is only for an actual treaty exemption. Even if 30% is withheld, that is a prepayment rather than necessarily your final federal tax bill.
Your form depends on whether you qualify for the narrow U.S.–India treaty exemption for independent services.
If you are not a of India, have a U.S. , or spend at least 90 days in the United States during 2026, give Form W-8BEN only to document foreign status—do not claim an independent-services treaty exemption in Part II. IRS says W-8BEN may be submitted whether or not you claim a reduced rate, while Publication 515 requires 30% on U.S.-performed independent services unless an exemption, withholding agreement, or final-payment exemption applies (About Form W-8BEN; Publication 515 (2026), “Pay for Personal Services Performed”).
If you are a of India, spend no more than 89 days in the United States during the relevant tax year, and have no U.S. , submit Form 8233 claiming U.S.–India Treaty Article 15. Form 8233—not W-8BEN—is the personal-services treaty certificate, and accepted covered compensation can be exempt from (U.S.–India Treaty, art. 15; Instructions for Form 8233 (Rev. Dec. 2025)).
Do not use W-8ECI to eliminate on this compensation. Its instructions direct an NRA claiming an exemption for U.S.-performed independent personal services to Form 8233 or, for employee pay, Form W-4; Publication 515 likewise excludes individual personal-service pay from the ordinary W-8ECI withholding exemption (Instructions for Form W-8ECI, p. 2; Publication 515 (2026)).
The W-8BEN face chart broadly routes U.S. personal-service compensation to Form 8233 or W-4, but its detailed instructions apply that exception when an NRA claims an exemption, while the December 2025 Form 8233 instructions say to use Form 8233 only when some or all compensation is exempt.
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Next steps
These steps identify the treaty branch, keep the work within OPT rules, and give the client the correct federal documentation.
Before continuing the work
Confirm the contract qualifies under your OPT category
For regular post-completion OPT, contract or “1099” work is allowed when it is directly related to your degree; average at least 20 hours per week in qualifying work to count as employed. If this is STEM OPT, a pure independent-client arrangement is not enough: each employer must be in E-Verify, employ you as its bona fide employee for at least 20 hours weekly, provide the training, and sign Form I-983.
Requirements
Before choosing the tax form
Apply the three-part India treaty test
Use Form 8233 only if you are an Indian treaty resident, will spend no more than 89 days in the United States during the relevant tax year, and have no U.S. fixed base for the work. If any condition fails—or your stay reaches 90 days—use the no-exemption W-8BEN route.
Requirements
Before the next payment
Give the client the appropriate form
Default route: complete Form W-8BEN at https://www.irs.gov/pub/irs-pdf/fw8ben.pdf as a foreign-status certificate without claiming an independent-services treaty exemption. Treaty route: obtain Form 8233 from https://www.irs.gov/forms-pubs/about-form-8233, identify the U.S.–India treaty and Article 15, and explain the residence, U.S.-day, and fixed-base facts on line 14. Give it to the client—not directly to the IRS—and prepare a separate Form 8233 for each tax year, withholding agent, and income type. The client signs Part IV, forwards a copy to the IRS within five days after accepting it, and waits at least 10 days after mailing for any IRS objection.
Requirements
For every payment
Track withholding and collect Form 1042-S
Without an accepted exemption, expect the client to withhold 30% from the U.S.-performed independent-service payments. Whether taxable or treaty-exempt, the client should report the foreign-person service compensation on Form 1042-S using income code 17 and furnish the 2026 form to you by March 15, 2027.
Requirements
Legal sources
This answer is based on current IRS form instructions and publications, the U.S.–India income-tax treaty, and DHS/SEVP OPT guidance.
About Form W-8BEN
W-8BEN can document your foreign status even when you are not claiming treaty relief.
Submit Form W-8 BEN when requested by the withholding agent or payer whether or not you are claiming a reduced rate of, or exemption from, withholding.
Instructions for Form W-8BEN (Rev. Oct. 2021)
A personal-services treaty exemption is claimed on Form 8233, not Form W-8BEN.
page 2, Who Must Provide Form W-8BEN
You are a nonresident alien individual who claims exemption from withholding on compensation for independent or dependent personal services performed in the United States. Instead, provide Form 8233 or Form W-4.
Instructions for Form 8233 (Rev. Dec. 2025)
Form 8233 is used only when some or all independent-service compensation qualifies for an exemption.
page 1, Purpose of Form
In general, section 1441 requires 30% income tax withholding on compensation for independent personal services, defined later. However, some payments may be exempt from withholding because of a tax treaty. Complete and give Form 8233 to your withholding agent if some or all of your compensation is exempt from withholding.
Instructions for Form W-8ECI (Rev. Oct. 2021)
W-8ECI is not the certificate for claiming an exemption on an individual’s U.S.-performed personal services.
page 2, Who Must Provide Form W-8ECI
Do not use Form W-8ECI if: • You are a nonresident alien individual who claims exemption from withholding on compensation for independent or certain dependent personal services performed in the United States. Instead, provide Form 8233 or Form W-4.
U.S.–India Income Tax Treaty, Article 15
The India treaty exempts independent-service income only when the worker has no qualifying U.S. fixed base and stays fewer than 90 days.
Article 15(1)
Income derived by a person who is an individual or firm of individuals (other than a company) who is a resident of a Contracting state from the performance in the other Contracting state of professional services or other independent activities of a similar character shall be taxable only in the first-mentioned state except in the following circumstances when such income may also be taxed in the other Contracting state: a) if such person has a fixed base regularly available to him in the other Contracting state for the purpose of performing his activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other state; or b) if the person's stay in the other Contracting state is for a period or periods amounting to or exceeding in the aggregate 90 days in the relevant taxable year.
IRS Publication 515 (2026)
Absent an applicable exception, a U.S. payer generally withholds 30% from an NRA’s U.S.-performed services.
Pay for Personal Services Performed
You must generally withhold tax at the 30% rate on compensation you pay to a nonresident alien individual for labor or personal services performed in the United States, unless that pay is specifically exempted from withholding or subject to graduated withholding. This rule applies regardless of your place of residence, the place where the contract for service was made, or the place of payment.
Instructions for Form 1042-S (2026)
The payer reports this foreign-person service compensation on Form 1042-S, including treaty-exempt compensation.
Amounts Subject to Reporting on Form 1042-S; Box 1—Income Code
Use code 17 for payments for independent personal services performed by a foreign person (including payments made to an entity). This includes payments that are subject to the business profits article of a treaty. Amounts paid to foreign students, trainees, teachers, or researchers as scholarship or fellowship income, and compensation for personal services (whether or not exempt from tax under an income tax treaty) must be reported. Forms 1042-S, whether filed on paper or electronically, must be filed with the IRS and be furnished to the recipient of the income by March 15 of the following calendar year.
IRS Publication 519 (2025)
Eligible Indian students receive a special standard-deduction rule, while NRAs generally are outside self-employment tax.
Students and business apprentices from India; Self-Employment Tax
A special rule applies to students and business apprentices who are eligible for the benefits of Article 21(2) of the United States-India Income Tax Treaty. You can claim the standard deduction, provided you do not claim itemized deductions. Nonresident aliens are not subject to self-employment tax unless an international social security agreement in effect determines that they are covered under the U.S. social security system.
SEVP Policy Guidance 1004-03
Regular post-completion OPT permits documented contract work, but it must be degree-related and meet the 20-hour employment threshold.
§§7.1.5 and 7.2.1, page 17
Work for hire. This is also commonly referred to as 1099 employment, where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company. All OPT employment, including post-completion OPT, must be in a job that is related to the student’s degree program. A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week.
DHS STEM OPT Extension Overview
A STEM OPT worker needs a real employment-and-training relationship with the I-983 employer, not pure self-employment.
Entrepreneurship and Employer-Employee Relationships
F-1 students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Form I-983 because F-1 students may not provide employer attestations on their own behalf. The employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.
These are the official federal rules published on the cited dates; tax and immigration rules can change.
This is general information about official processes, not legal advice, and SettleKit is not a law firm.
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