FICA witholding for non-resident aliens after 2 years of presnse in the US

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111 viewsFebruary 4, 2025

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Max (anonymous) Posted January 23, 2025

Hello,
I found two of your answers about the determination of the status of a factual resident of Canada:
https://madanca.com/learn/canadiantaxforum/relocating-to-us-for-work-temporarily/ and https://madanca.com/learn/canadiantaxforum/will-i-still-be-a-tax-resident-in-canada/.

Provided that the conditions that make a taxpayer a factual resident of Canada under the tie-breaker rules of the US–Canada tax treaty are met, what are the obligations of a taxpayer who is a J-1 visa holder (a trainee, not a student) regarding the payment of FICA (Social Security/Medicare taxes)?

The IRS website states that J-visa trainees are exempt from Social Security/Medicare taxes on wages paid to them for services performed within the United States. However, 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. Foreign trainees and other non-student aliens temporarily present in the United States in J-1 nonimmigrant status for less than two calendar years are generally considered non-resident aliens (NRAs) under the residency rules of the Internal Revenue Code (IRC).

If they continue to be classified as NRAs after two calendar years as a result of the application of a tax treaty and report this status to the IRS by filing Form 8833, will they remain exempt from FICA taxes as long as they maintain NRA status and meet other conditions (e.g., work performed under J-1 visa status)?

If this is the case, how can they request their employer not to withhold FICA taxes from their wages? Should they file Form W-8BEN, Form 8233, or another form?

I cannot find any specific reasoning for the two-year threshold. It seems to be based on the assumption that most J-1 visa holders become resident aliens for tax purposes after two years, without considering the possibility of determining residency status under a tax treaty rather than through physical presence.

Could you please provide your opinion on this issue?

1 Answer

score 0 · Answer 1 · 2025-02-04T15:13:01+00:00

Hi Max,

You’re correct that J-1 visa holders (trainees) may remain exempt from FICA taxes if they continue to qualify as non-resident aliens (NRAs) under the U.S.-Canada tax treaty, even after the two-year period generally used to determine the Substantial Presence Test (SPT). As you pointed out, the key factor is the treaty-based position, which could allow them to retain their NRA status for tax purposes and avoid FICA (Social Security/Medicare) tax obligations.
Here’s a more detailed breakdown of the steps a J-1 visa holder should take to request their employer not to withhold FICA taxes:

Form 8833: The J-1 visa holder needs to file IRS Form 8833, Treaty-Based Return Position Disclosure, to disclose their treaty-based exemption. This form is used to notify the IRS and their employer about their position under the U.S.-Canada tax treaty (or any other applicable treaty), confirming that they remain a non-resident alien under the treaty and are thus exempt from FICA taxes.

Notify the Employer: The individual should also inform their employer about their non-resident alien status and treaty exemption. Employers may not automatically be aware of specific treaty exemptions, so it’s crucial to communicate the tax position clearly, particularly regarding the FICA exemption. The employer will rely on this information when determining whether to withhold Social Security and Medicare taxes.

Forms W-8BEN and 8233: You are correct in noting that these forms do not directly apply to FICA exemptions. Form W-8BEN is primarily used to establish non-resident alien status for purposes of claiming treaty benefits for income tax withholding. Form 8233 is specifically for individuals performing independent personal services and is not relevant for employees, especially in the context of FICA.

By taking these steps, the J-1 visa holder ensures that they remain compliant with tax laws while also avoiding unnecessary FICA tax withholding.

FICA witholding for non-resident aliens after 2 years of presnse in the US

1 Answer

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