My employer wrongly withheld FICA during OPT — can I get it back?
Yes. F-1 students in their first 5 calendar years in the US are generally treated as nonresident aliens for tax purposes and are exempt from Social Security and Medicare taxes (FICA) under IRC Section 3121(b)(19). If your employer withheld FICA anyway, the money is recoverable — but the first move is always to ask the employer for a refund, not the IRS.
Who is actually exempt
The FICA exemption is not about your visa label alone — it is about your tax-residency status. Under the substantial presence test, F-1 students are "exempt individuals" for their first 5 calendar years in the US (IRS Publication 519). During those years you are a nonresident alien, and IRC 3121(b)(19) exempts nonresident aliens in F-1, J-1, M-1, or Q-1 status from FICA on wages.
Two common trip-ups:
- Year 6 and beyond: once you become a resident alien for tax purposes, the FICA exemption ends. This catches people on long PhDs and second degrees.
- H-1B switch: the IRS is explicit that when you change to H-1B status, the exemption stops and the employer must start withholding FICA from the effective date.
Check your pay stubs: Social Security tax is in box 4 of your W-2, Medicare tax in box 6. On OPT, 7.65% of wages (6.2% Social Security + 1.45% Medicare) wrongly withheld adds up fast — on $60,000 of OPT earnings, that is about $4,590.
The refund path, in order
| Step | Action |
|---|---|
| 1 | Ask the employer first. Send payroll a written request citing IRC 3121(b)(19) and IRS Publication 519. Employers that agree can refund you directly and correct their payroll filings — this is the fastest route. |
| 2 | Get the refusal in writing. If the employer will not or cannot refund you, keep their written response. You will need it. |
| 3 | File Form 843 (Claim for Refund and Request for Abatement) with the IRS for the Social Security and Medicare tax. |
| 4 | Attach Form 8316 (the supporting statement for FICA refund claims by nonresident aliens on F/J/M visas), plus copies of your W-2, passport, visa, I-94, I-20 (showing OPT/CPT), and EAD card, and proof you asked the employer. |
| 5 | Wait. IRS processing routinely takes several months. Claims cannot be e-filed — mail the package per the Form 843 instructions. |
Do not skip step 1. The IRS expects you to try the employer first, and Form 8316 specifically asks whether the employer reimbursed you. A claim filed without showing you asked the employer is weaker.
Frequently asked questions
My employer says "we already filed our payroll taxes, we can't fix it." Is that true?
Not necessarily. Employers can file corrected payroll returns (Form 941-X) and claim a refund or credit of the employer-paid portion. Many simply do not want the hassle. If they refuse, that written refusal is exactly what strengthens your Form 843 claim with the IRS.
I am in my 6th calendar year on F-1. Was the FICA withholding correct?
Most likely, yes. After your 5 exempt calendar years, you are a resident alien for tax purposes and the FICA exemption no longer applies — your employer was right to withhold. The China-treaty $5,000 exemption (a separate benefit) can still apply, but FICA is gone.
Is there a deadline to claim the refund?
Yes — the general refund deadline applies: the later of 3 years from when the return was filed or 2 years from when the tax was paid. Do not sit on this for years.
Sources
- IRS: Employers Must Withhold FICA Taxes for Aliens who Change Visa Status to H-1B (IRC 3121(b)(19)): https://www.irs.gov/government-entities/employers-must-withhold-fica-taxes-for-aliens-who-change-visa-status-to-h1b
- IRS Form 843, Claim for Refund and Request for Abatement: https://www.irs.gov/forms-pubs/about-form-843
- IRS Form 8316, Information Regarding Request for Refund of Social Security Tax: https://www.irs.gov/forms-pubs/about-form-8316
- IRS Publication 519, U.S. Tax Guide for Aliens
- https://www.nystartax.com/international-student-tax/baoshui-gonglue