You must comply with both U.S. and Canadian filing requirements. In the United States, you generally are required to file a return if you have income from the performance of personal services within the United States. However, under certain circumstances, that income may be exempt from payment of U.S. tax pursuant to the U.S.-Canada income tax treaty. You need to determine what type of visa you have, and how that impacts your residency status in the United States. If, based on the tax code and your visa status you are treated as a U.S. resident, then your entitlement to treaty benefits will be impacted.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Publication 597, Information on the United States-Canada Income Tax Treaty
• Publication 901, U.S. Tax Treaties

In the United States, you generally are required to file a return if you have income from the performance of personal services within the US. The type of return to file would depend upon whether you are a resident of the U.S. for purposes of U.S. tax law. There are several tests to determine residency, including the substantial presence test, which is based on how many days you are present in the U.S. over a period of three years. Refer to Tax Topic 851 for information about which return to file. If you are simultaneously a U.S. resident under U.S. law and a Canadian resident under Canadian law, you should consult the U.S.-Canada income tax treaty for rules that would treat you as a resident of only one country. It is also possible that you may have to file a dual-status return in the U.S. if you qualify as a U.S. resident for only part of the year. Refer to Tax Topic 852 for dual-status information.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Publication 597, Information on the United States-Canada Income Tax Treaty
• Publication 901, U.S. Tax Treaties
• Tax Topic 851, Resident and Non-Resident Aliens
• Tax Topic 852, Dual Status Aliens

You were a dual status alien last year. As an H-1 visa holder in the U.S. for 183 days or more, you likely became a resident, for tax purposes, as of June 30th. For the part of the year you are a resident alien, you are taxed on income from all sources.

For the part of the year that you are not a resident alien, you are not taxed on income from sources outside the United States, unless the income is effectively connected with a trade or business in the United States.

Income from U.S. sources is taxable whether you receive it while a nonresident alien or a resident alien unless specifically exempt under the Internal Revenue Code or a tax treaty provision. Generally, tax treaty provisions apply only to the part of the year you were a nonresident and only if you are a resident for treaty purposes of a country that has a treaty with the United States.

For that part of the year that you are a nonresident, file Form 1040NR (PDF), U.S. Nonresident Alien Income Tax Return. For that part of the year you are a resident, file Form 1040 (PDF) . Refer to Tax Topic 852 for dual-status information.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Form 1040NR (PDF), U.S. Nonresident Alien Income Tax Return
• Instructions for Form 1040NR, U.S. Nonresident Alien Income Tax Return
• Tax Topic 852Dual-Staus Alien

You will have met the substantial presence test and will be taxed as a resident alien for last year, while your husband is likely to be a nonresident alien. Refer to Tax Topic 851 for an explanation of the relevant tax forms. You may file a joint tax return if your husband makes the choice to be treated as a resident for the entire year. Generally, however, you cannot claim tax treaty benefits as a resident alien. Please refer to Publication 519, U.S. Tax Guide for Aliens , for detailed instructions on making this choice.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Tax Topic 851Resident and Nonresident Aliens

Assuming you were not in the U.S. on your F-1 student visa for over 5 years, you may file as a nonresident for the entire year or, if you qualify under the first year choice, you may file as a dual status alien. Please refer to Publication 519, U.S. Tax Guide for Aliens, for additional information.

References:

• Publication 519, U.S. Tax Guide for Aliens

Your H-1 visa suggests that you may in fact be a resident alien or a dual-status alien. Refer to Tax Topic 851 and Tax Topic 852 for further clarification of your U.S. residency status, and the appropriate form to file.

A nonresident alien must file Form 1040NR (PDF), U.S. Nonresident Alien Income Tax Return, or Form 1040NR-EZ (PDF), U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents, if you are engaged in a trade or business in the United States, or have any other U.S. source income on which the tax was not fully paid by the amount withheld.

You can use Form 1040NR-EZ instead of Form 1040NR if all nine of the following apply.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Tax Topic 851 , Resident and Non-Resident Aliens
• Tax Topic 852 , Dual Status Aliens

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for the calendar year. As an exempt individual, a J-2 visa holder will not initially meet this test.

For purposes of the substantial presence test, certain days of physical presence do not count, such as the days during which you were an exempt individual . Please refer to Publication 519, U.S. Tax Guide for Aliens , for a detailed explanation of this issue.

In general, U.S. social security and Medicare taxes apply to payments of wages for services performed as an employee in the United States, regardless of the citizenship or residence of either the employee or the employer. In limited situations, these taxes apply to wages for services performed outside the United States. This exception does not apply to a derivative visa holder.

References:

• Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities
• Publication 519, U.S. Tax Guide for Aliens

If social security tax and Medicare were withheld in error from pay received which was not subject to the taxes, you must first contact the employer who withheld the taxes for reimbursement. If you are unable to get a refund from the employer, file a claim for refund with the Internal Revenue Service on Form 843 (PDF), Claim for Refund and Request for Abatement.

You must attach the following to your claim:

In addition to the documentation listed above foreign student visa holders should also attach the following:

if you are an exchange visitor, attach a copy of Form IAP-66 or DS-2019 to your claim.

File the claim, with attachments, with the IRS where the employer's returns were filed. If you do not know where the employer's returns were filed, send your claim to the Internal Revenue Service Center, Philadelphia, PA 19255.

For more information, refer to Publication 519, U.S. Tax Guide for Aliens .

References:

• Form 843 (PDF), Claim for Refund and Request for Abatement
• Publication 519, U.S. Tax Guide for Aliens

To claim a refund of U.S. tax withheld you need to file Form 1040NR (PDF) , U.S. Nonresident Alien Income Tax Return . Therefore, you need to secure an Individual Taxpayer Identification Number, or ITIN. To secure an ITIN, you must file Form W-7 (PDF), Application for IRS Individual Taxpayer Identification Number . For detailed information on applying for an ITIN, go to Tax Topic 857 , Individual Taxpayer Identification Number - W-7

References:

• Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Corporations
• Publication 519, U.S. Tax Guide for Aliens
• Publication 1915 (PDF), Understanding Your IRS Individual Taxpayer Identification Number
• Form W-7 (PDF), Application for IRS Individual Taxpayer Identification Number
• Tax Topic 857, Individual Taxpayer Identification Number - Form W-7
• Form 1040NR (PDF) , U.S, Nonresident Alien Income Tax Return
• Tax Topic 857 , Individual Taxpayer Identification Number - Form W-7

It depends on whether or not you qualify as a resident alien. As a foreign national temporarily in the U.S. and now under an H-1 visa, you must file Form 1040NR (PDF), U.S. Nonresident Alien Income Tax Return and Form 8843 (PDF), Statement for Exempt Individuals and Individuals with a Medical Condition (if you do not meet the substantial presence test). In order to file a Form 1040, Individual Tax Return, you must meet the substantial presence test. Please refer to Publication 519, U.S. Tax Guide for Aliens , for a detailed discussion of the Substantial Presence Test. You may also qualify to file as a dual status taxpayer for the year of your visa change. Refer toTax Topic 852 , for dual status information.

References:

• Publication 513, Tax Information for Visitors to the United States
• Publication 519, U.S. Tax Guide for Aliens
• Form 1040NR (PDF), U.S. Nonresident Alien Income Tax Return
• Instructions for Form 1040NR, U.S. Nonresident Alien Income Tax Return
• Form 8843 (PDF), Statement for Exempt Individuals and Individuals with a Medical Condition
• Tax Topic 851, Resident and nonresident aliens
• Tax Topic 852 , Dual Status Alien

Generally, services performed by you as a nonresident alien temporarily 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 are not covered under the social security and medicare programs if the services are performed to carry out the purpose for which you were admitted to the United States. This means that there should be no withholding of social security or Medicare taxes from the pay you receive for these services. These types of services are very limited, and generally include only on-campus work, practical training, and economic hardship employment. However, you are covered under the social security and medicare programs for these services if you are considered a resident alien, even though your nonimmigrant classification ("F," "J," "M," or "Q") remains the same. Social security and Medicare taxes will be withheld from your pay.

Additionally, any student who is enrolled and regularly attending classes at a school, college, or university may be exempt from social security and Medicare taxes on pay for services performed for such school, college, or university.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Publication 597, Information on the United States-Canada Income Tax TreatyPublication 515 (PDF) , Withholding of Tax on Nonresident Aliens and Foreign Entities

The following discussion generally applies only to nonresident aliens. Wages and other compensation paid to a nonresident alien for services performed as an employee are usually subject to graduated withholding at the same rates as resident aliens and U.S. citizens. Therefore, your compensation, unless it is specifically excluded from the term "wages" by law, or is exempt from tax by treaty, is subject to graduated withholding. Nonresident aliens must follow modified instructions when completing Form W-4. Please refer to Publication 519, U.S. Tax Guide for Aliens, for directions on completing Form W-4 (PDF), Employee's Withholding Allowance Certificate .

References:

• Publication 519 , U.S. Tax Guide for Aliens
• Publication 597, Information on the United States-Canada Income Tax TreatyPublication 515 (PDF) , Withholding of Tax on Nonresident Aliens and Foreign Entities
• Form W-4 (PDF), Employees Withholding Allowance Certificate