Awaiting EAD, can and can't do's

[Dannyboy11 0]

Hi there,

I'm not sure if this is the best place to post this but I have a particular question regarding EAD once married on the K1 visa.

The company that I currently work for (Canadian based) has offered me a position in the US after I get married on the K1 visa. This role would be one where I would work remotely - ie, I would be reporting to the office in Toronto but would be working out of the US. Because of the restrictions around working while waiting for the EAD, they have suggested me doing the role but not actually getting paid until after my EAD comes through. They see it as a way to keep me connected to the company but not breaking the law. I wan't to abide by the law so I'm just wondering if this would be illegal.

Thanks

[baron555 934]

Nope, can't do that.

[Pitaya 2,576]

~Moved from K-1 Process to Working and Traveling During US Immigration Forum~

~Inquiry about working and EAD~

[JayJayH 546]

The problem here is that US immigration does not distinguish between paid or unpaid work. Whether it is paid or not is irrelevant. Any labor for which a US person could be reasonably expected to get paid is 'work' and thus not legal without work authorization.

[sweet cakes 326]

It's really good to know that your company agree and think of ways how to keep their hard-working employees. However, as defined above by Yang-ja, what you are planning is still technically "working" without a valid authorization. It will not be wise to go around it.

What you can do to minimize the "downtime" upon entry to US and marrying your fiance is to prepare for the AOS, AP & EAD forms, and their requirements in line. So after the wedding, you can just submit your AOS forms once you get a copy of your marriage certificate.

Edited April 16, 2014 by sweet cakes

[Dannyboy11 0]

Thanks for your input. Let me just clarify that I wouldn't be an employee for the company, I would be acting as an agent for them (self-employed), and not getting any payments from them until my EAD came through - does this make a difference? Cheers

[JayJayH 546]

I'd add that one way you could technically work during that time is if you worked in Canada. Does not have to be physically in Canada, but i.e. from home through something like remote desktop. As long as the work being done is for a Canadian employer, based in Canada, taxed to Canada with no requirement of being in the US, and for which a US employee would otherwise need a Canadian work permit to perform the job. You'd be working in Canada. Worth exploring.

[Dannyboy11 0]

Thanks, I don't think the scenario you suggest would work for me Yang-Ja as I am not a Canadian citizen but an Irish one.

Also, there seems to be a little bit of conflicting info on VJ on this issue as a whole - for example the topic here: http://www.visajourney.com/forums/topic/394898-can-fiancehusband-continue-working-for-his-foreign-company-while-in-the-us/

And Gegel's posting in this topic: http://www.visajourney.com/forums/topic/490010-working-for-a-forign-company-while-waiting-for-aos/

What do you guys think?

[Kiwinyc 62]

I had an irish friend that worked in the US for years on a B1 visa... She was employed by her office in London and was paid in pounds sterling, paid UK taxes etc etc. But every day she went into their NY office and sat at a desk and did her work there...

Anyway, I think if you're being paid in CAD or UKP and paying taxes in whichever respective country but happen to be physically present in the US to do your work remotely you are not breaking any rules.

[JohnR! 5,495]

Hi there,

I'm not sure if this is the best place to post this but I have a particular question regarding EAD once married on the K1 visa.

The company that I currently work for (Canadian based) has offered me a position in the US after I get married on the K1 visa. This role would be one where I would work remotely - ie, I would be reporting to the office in Toronto but would be working out of the US. Because of the restrictions around working while waiting for the EAD, they have suggested me doing the role but not actually getting paid until after my EAD comes through. They see it as a way to keep me connected to the company but not breaking the law. I wan't to abide by the law so I'm just wondering if this would be illegal.

Thanks

You should be ok so long as you remain employed in Canada - albeit physically in the US - and being paid in Canada as well. In other words, nothing changes, as you are still holding your old job and working remotely, from home, in the US.

[JayJayH 546]

Thanks, I don't think the scenario you suggest would work for me Yang-Ja as I am not a Canadian citizen but an Irish one.

Also, there seems to be a little bit of conflicting info on VJ on this issue as a whole - for example the topic here: http://www.visajourney.com/forums/topic/394898-can-fiancehusband-continue-working-for-his-foreign-company-while-in-the-us/

And Gegel's posting in this topic: http://www.visajourney.com/forums/topic/490010-working-for-a-forign-company-while-waiting-for-aos/

What do you guys think?

I apologize, I thought Canadian for some reason (should add a flag to your profile). It doesn't really matter, if you can work remotely for your Irish employer, it's the same thing essentially.

Ask yourself this:

1. Does the job require you to be in the US?

2. Could a US person work this job?

3. Is the work 'in' the US?

4. Are wages being paid in the US?

If the answer is no to all of the above, then you aren't working or employed in the US. I'm not an attorney, but have actually discussed this with more than one immigration lawyer - None could see any legal issues.

I had an irish friend that worked in the US for years on a B1 visa... She was employed by her office in London and was paid in pounds sterling, paid UK taxes etc etc. But every day she went into their NY office and sat at a desk and did her work there...

Anyway, I think if you're being paid in CAD or UKP and paying taxes in whichever respective country but happen to be physically present in the US to do your work remotely you are not breaking any rules.

It's a gray area. The answer to the last part would depend on 1. if the position requires you to be in the US, and 2. if a US person could be hired for the job. If the work is being done in a NY office, I'd say it could cause trouble. If the work is being done remotely, from a hotel room or home, I'd beg to differ.

Imagine a British teacher on vacation in Florida. His/her main purpose for travel was to visit Walt Disney World. One night, he/she decides to correct his/her British students' tests in the hotel room. It's work, sure. Illegal? No. The work done does not require physical presence in the US, no US person could perform it becaue it's a British job, no wages are paid in the US.

Edited April 17, 2014 by Yang-Ja

[sweet cakes 326]

Just curious, If OP will eventually accept this job, that is, working for a Canadian company, but physically in US, does he have to pay income taxes twice? Both in Canada & US?

[Boiler 43,433]

Two separate issues:

- Is it legal

- Can you reasonably expect not to get any grief.

I know the answer for the second one.

The first one, there is a grey area, which is moire complicated than I care to discuss.

And even if I did there are opinions and no answers.

But if the real issue is the second one, does it matter?

I apologize, I thought Canadian for some reason (should add a flag to your profile). It doesn't really matter, if you can work remotely for your Irish employer, it's the same thing essentially.

Ask yourself this:

1. Does the job require you to be in the US?

2. Could a US person work this job?

3. Is the work 'in' the US?

4. Are wages being paid in the US?

If the answer is no to all of the above, then you aren't working or employed in the US. I'm not an attorney, but have actually discussed this with more than one immigration lawyer - None could see any legal issues.

It's a gray area. The answer to the last part would depend on 1. if the position requires you to be in the US, and 2. if a US person could be hired for the job. If the work is being done in a NY office, I'd say it could cause trouble. If the work is being done remotely, from a hotel room or home, I'd beg to differ.

Imagine a British teacher on vacation in Florida. His/her main purpose for travel was to visit Walt Disney World. One night, he/she decides to correct his/her British students' tests in the hotel room. It's work, sure. Illegal? No. The work done does not require physical presence in the US, no US person could perform it becaue it's a British job, no wages are paid in the US.

Civil law not Criminal law so illegal is irrelevant.

Nobody is going to know, nobody cares.

[Boiler 43,433]

I had an irish friend that worked in the US for years on a B1 visa... She was employed by her office in London and was paid in pounds sterling, paid UK taxes etc etc. But every day she went into their NY office and sat at a desk and did her work there...

Anyway, I think if you're being paid in CAD or UKP and paying taxes in whichever respective country but happen to be physically present in the US to do your work remotely you are not breaking any rules.

and you would be wrong.

I also know people who work in the US and are even paid in the US! And have no visa.

It was quite common for Indian IT subcontractors to use the revolving 6 months B, which is one reason Indian IT types find it so hard to get B's and are subject to the level of scrutiny.

When my Brother did a stint in NY they did that, they were happy, getting much better money, but it was looked upon as a single trip.

[novedsac 355]

Ya'll forgetting this person's place of residence. If their legal domicile is in the US, then it is US employment.

B1 visas are nonimmigrant; the beneficiary has not changed their legal domicile.

Self-employed is still employment.

Also, not really sure what you mean by working and not getting paid until after EAD ? So, is the work being done now until EAD arrival being done on your goodwill?

Or is the company going to defer payment until after your EAD? Deferred compensation is considered earned (and taxable) at the time normally eligible for payment (ie, the normal pay scheduled for the company), unless it is part of a deferred compensation plan which is qualified under ERISA.