Employer declining to collect missed FICA—what are my obligations?
My F-1 STEM OPT FICA exemption ended when my H-1B became effective October 14, 2026. My October 23 paycheck covers October 3–16, with no FICA withheld. A CPA advised that only October 14–16 should be subject to FICA. The estimated employee tax is $79.20. Can payroll recover this through a later paycheck under IRS Publication 15, Section 13? If it refuses despite my written authorization, could I face penalties, and how can I properly pay the missed employee FICA myself as a Form 1040-NR filer?
Quick Answer:
Yes, your employer can recover the under-withheld FICA taxes from your later paychecks. IRS Publication 15, Section 13, explicitly allows employers to correct under-collections by deducting the amount from subsequent wages within the same calendar year.
The CPA’s advice is correct: your FICA exemption ended the moment your status changed to H-1B on October 14. Only the wages earned from October 14–16 are subject to Social Security and Medicare taxes.
If the employer refuses to adjust your payroll despite your written request:
1. **Penalties:** You generally will not face individual penalties for an employer’s failure to withhold, as the primary legal obligation to withhold and remit FICA rests with the employer.
2. **Payment:** As a 1040-NR filer, there is no standard mechanism to "self-pay" the employee share of FICA on your tax return (Form 8919 is generally for misclassified contractors, not H-1B status changes).
If the employer does not correct it by year-end, the unpaid tax technically becomes a liability for the employer. Keep your written correspondence as documentation of your attempt to comply. If they never withhold it, you do not report it on your 1040-NR.
Note: This answer is provided for convenience only. It is important that you speak to a CPA about your individual tax situation.
