September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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Employers Must Withhold FICA Taxes for Students who Change Status to H-1B Starting October 1

As students and scholars’ status change from F-1, J-1 or other FICA exempt statuses to H-1B starting October 1, these employees will become subject to FICA taxes upon the effective date of their H-1B status.

All employers and employees are required to pay social security and Medicare taxes.  However, the Internal Revenue Code and the Social Security Act provide an exemption for students, scholars, teachers, researchers, trainees, physicians, au pairs, and summer camp workers in F-1, J-1, M-1, Q-1 or Q-2 non-immigrant visa status.  However, as these employees’ convert to an H-1B upon status, employers must commence the withholding of FICA taxes.

As most H-1B change of statuses will become effective October 1, 2015, employers are advised to confirm with payroll departments or third-party payroll processors that each employee’s FICA withholding is reflected on his/her pay stub from the effective date of his/her H-1B status.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume V, Number 272


About this Author

Angel Feng, Immigration Attorney, Mintz Levin, Visa Petitions Lawyer, Green Card, Immigration EB-5 Financing
Special Counsel

Angel focuses her practice on business immigration matters and related compliance issues. She works with employers in designing and defining corporate immigration programs and policies, and in structuring short and long-term visa strategies for management, professional and specialized skill foreign employees.  She also advises employers on discipline, suspension and/or termination of visa sponsored employees and litigation prevention measures; and counsels clients on employment eligibility verification, I-9, and E-verify compliance and employer defense in ICE audits, and worksite...