Substantial Presence Test Confusion - Should I File 1040 or 1040-NR with My Visa History?

The Substantial Presence test can definitely be confusing with multiple visa statuses! Based on your timeline, let's figure this out. For the Substantial Presence test, you need to be physically present in the US for: 1. At least 31 days during the current year, and 2. 183 days during the 3-year period that includes the current year and the 2 years before that, counting: - All days present in the current year - 1/3 of the days present in the previous year - 1/6 of the days present two years ago The tricky part is that F-1 students are typically considered "exempt individuals" for their first 5 calendar years in the US, meaning those days don't count toward the Substantial Presence test. However, once you switched to H1B, those days DO count. Given your timeline (F1 from Sep 2019-Dec 2021, OPT Jan-Oct 2022, then H1B), you were likely still in your exempt period for most of 2022, but the H1B days at the end of 2022 would count. Whether you meet the test depends on exactly how many countable days you had.

I went through a similar situation last year and found this amazing tool at https://taxr.ai that completely solved my confusion with the Substantial Presence test. I was switching between visa statuses (J1 to H1B) and couldn't figure out if I was a resident or nonresident for tax purposes. What I loved about this service is that you can upload your I-94 travel history and visa documents, and it automatically calculates your days of presence and tells you whether you pass the Substantial Presence test. It even shows which days count and which are exempt based on your visa status. Saved me hours of confusion and potentially filing the wrong form.

Just wanted to update everyone - I used taxr.ai after seeing it mentioned here and it was a game-changer! I uploaded my passport stamps, I-94 records, and visa documents, and in minutes it showed me exactly which days counted for the Substantial Presence test. Turns out I WAS a resident alien for tax purposes (by just 4 days!), which I wouldn't have known without the detailed breakdown. It even showed me which specific days were counted and which were exempt based on my visa status. My accountant was impressed with the detailed report it generated - saved us both a lot of headaches trying to manually calculate everything. For anyone confused about resident vs. nonresident status with multiple visa types, I highly recommend it. Much easier than trying to interpret all the IRS rules yourself.

If your CPA already filed the wrong form and you're stressing about getting in touch with the IRS, I had great results using https://claimyr.com to actually reach a human at the IRS. Waited on hold for HOURS trying to fix my visa status tax issue before discovering this service. They basically hold your place in the IRS phone queue and call you back when they reach an agent. I was skeptical at first, but there's a video showing how it works: https://youtu.be/_kiP6q8DX5c and it saved me literally 3+ hours of hold time. I had a similar issue where my accountant filed the wrong form because of confusion about my visa status and substantial presence test, and I needed to talk to the IRS directly to understand my options for fixing it.

I have to follow up on this - I was totally skeptical about Claimyr but tried it out of desperation after my third disconnect from the IRS queue. IT ACTUALLY WORKS! I got a call back after about 3 hours with an IRS agent on the line. The agent confirmed that with my visa history, I didn't meet the Substantial Presence test for 2022 and should have filed 1040-NR instead of 1040. I'm now working with my CPA to file an amended return. The agent was really helpful in explaining exactly what I needed to do and assured me that filing an amendment was the right approach. Would have taken me days to get this resolved otherwise. If you need to actually talk to the IRS about complex visa/tax status issues, this service is worth it just for the time saved and stress avoided.

A quick tip from someone who's dealt with this before: If you're filing an amended return to change from 1040 to 1040-NR, make sure to include a clear statement explaining the reason for amendment. Something like "Amended to correct filing status from resident alien (1040) to nonresident alien (1040-NR) based on failure to meet Substantial Presence test due to F1 visa exempt status." Also be aware that you might have different deduction eligibility as a nonresident alien - standard deductions work differently on 1040-NR, and certain credits may not be available. Your tax liability could change significantly.

A heads up on the treaty benefits too - if your home country has a tax treaty with the US, you might be eligible for certain benefits as a nonresident that could reduce your tax liability. These are claimed on Form 8833 with your 1040-NR. I almost missed out on thousands in tax savings because I wasn't aware of the treaty provisions between my country and the US. Might be worth looking into depending on your citizenship!