Working while in the US illegal?

[Deema & Wayne 28]

Hey everyone,

I was wondering something and would like some feedback please. Here's the situation: I came to the US 4 months ago with the intention of visiting only and kept my job back home in Jordan. My employer switches me to part time when I travel but I still work with them remotely until now. My husband and I decided to get married, we filed our AOS, etc. Again, I still have my job and am still working with them. So the facts:

- Been here 4 months

- Working with an abroad company.

- On visitor status now until AOS is complete.

Will me working while I'm here be considered illegal given those facts?

[Brother Hesekiel 2,236]

You were not allowed to work in the US with a visitor's visa, but it will not be made an issue of at the AOS stage (or thereafter). Most likely, it will not even come up, but always tell the truth!

[Little_My 464]

She doesn't need authorization to work for a foreign employer and make foreign income from USCIS, does she? And it's not taxable income in the US until she is a permanent resident? So wouldn't that mean that it is not illegal?

Edited September 24, 2011 by Little_My

[Deema & Wayne 28]

That's exactly what I was thinking Little_My. After I become a resident, I understand that I am responsible for taxes even if it's a foreign employer, but now it doesn't make sense to me. I made the mistake of sending my income in as part of the household income, so they sent me an RFE asking for tax returns and proof that I could work here. I wrote a letter explaining that it's a foreign employer and I have never worked in the US (and I truly haven't). I just kept my job until I see what is going to happen with my AOS and I understand that I cannot use this income as part of our household income. They also pointed out that: For the household's member's income to be included in the household income, the household member's income must have been from a lawful source and earned while the household member was authorized to work in the United States.

I think they understood that I worked IN the United States not WHILE I was in the US with a foreign employer even though I sent in my employment letter. It shows that the company is based in Jordan not here.

[Deema & Wayne 28]

So does anyone know of such situations?

[JimVaPhuong 4,863]

The ability to use the intending immigrant's income on the affidavit of support is a matter of policy rather than law. When the affidavit of support is being adjudicated by USCIS then section 20.5 of the Adjudicators Field Manual covers this:

If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets, the sponsor may also count the intending immigrant’s income if (1)(a) the intending immigrant is either the sponsor’s spouse or (b) has the same principal residence as the sponsor, and (2) the preponderance of the evidence shows that the intending immigrant’s income results from the intending immigrant’s lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status. The prospect of employment in the United States that has not yet actually begun does not count toward meeting this requirement.

In a nutshell, this means you have to prove that it was legal for you to be collecting this income while you were in the US, and that the income will continue from the same source after you become a permanent resident. It doesn't specifically mean that you must have been authorized to work in the US unless the conditions of your employment would have required that authorization. For example, if you were working for a US employer in the US then you'd generally need authorization to work in the US.

This is completely separate from the general requirement that an adjustment of status applicant must not have worked in the US without authorization. That requirement specifically does not apply to someone who is adjusting status as an immediate relative of a US citizen. However, if they determine that your work in the US was unauthorized then income from that work cannot be used as qualifying household income for the affidavit of support. Again, section 20.5 of the AFM:

The interim rule did not directly address the ability of a sponsor to rely on an intending immigrant’s income from unauthorized employment in meeting the Poverty Guidelines threshold for the sponsor’s household income. In response to a specific comment relating to the issue of the sponsor’s reliance on an intending immigrant’s income, the revised definition of “household income” now makes it clear that

income from an intending immigrant’s unauthorized employment may not be considered in determining whether the sponsor’s anticipated household income meets the applicable Poverty Guidelines threshold

.

I don't believe that your work for your foreign employer constitutes unauthorized employment. You didn't come to the US primarily to do work for your foreign employer, and I believe the fact that you actually did do some work for your foreign employer while you were here is not relevant in determining whether the income qualifies because the work you did was the same work you would have done if you were still in your home country. I don't believe the employment authorization laws were intended to forbid telecommuting while visiting the US. If they were that strict then you'd have to leave the US in order to take a phone call from your boss. Nobody is required to effectively quit their job in order to visit the US. I believe the real problem you've got is proving that you'd continue to receive that income from the same source after you became a permanent resident. You essentially opened a can of worms by declaring your foreign income on the affidavit of support.

If you want to fight this then go ahead, but I wouldn't bother if it were me. The immigration officer still has discretion to refuse to accept the income regardless of how much proof you offer, or to insist that you prove you were authorized to work in the US even though, technically, work authorization wasn't required. First, I'd get a joint sponsor. Second, I'd submit a revised affidavit of support from your US citizen spouse and leave out your foreign income. I'd also include a letter explaining that you didn't quit your job when you came to visit the US, and that you believe you would be able to continue working for the same employer after adjusting status, but rather than trying to prove these facts you've chosen to withdraw that income from consideration.

[Deema & Wayne 28]

Thanks for your reply this is the letter that I included with the new support form in response to the RFE:

In reference to including my income as part of the household income, please allow me to apologize for this inconvenience and further explain the situation. I regretfully admit to misunderstanding that the income has to be from a company based in the United States while authorized to work in the United States. Kindly note that the company I work for is based in Amman – Jordan and it is the company I have been working for since 2009 during which I lived there. I have been in the United States since May 2011 and my employer changed my work status from full time to part time because I am not physically present in Amman and I continued to work for them remotely via email. I mistakenly believed that I could include this income. I have never worked in the United States as I am aware that I am not legally allowed to until I receive my EAD.

As a result of this, I understand that my income shall be discarded and not included as part of the household income and have accordingly adjusted and included a corrected copy of the I-864 excluding that amount.

My sincerest apologies for this inconvenience

I don't plan to pursue this or prove it as part of the income; I simply didn't know that I couldn't and understand that I can't now. I just wanted to make sure that I didn't do anything illegal while I was waiting for my AOS to come through and I do intend on quitting my job once I receive my EAD; then I can get a real job here. What worries me is that they would consider my working for them illegal?

One more thing..I did send it as extra income, my spouse's income alone is above the poverty line without my income included..I shouldn't have sent in in, that was a not smart move, was just trying to be safe I guess.

[Brother Hesekiel 2,236]

I don't believe that your work for your foreign employer constitutes unauthorized employment. You didn't come to the US primarily to do work for your foreign employer, and I believe the fact . . . .

I strongly disagree. So let me grab the ball you threw and run with it.

Your wife comes from Vietnam, so let's stick with that.

Vietnamese citizen is employed at Ho Chi Minh City. He restores vintage Vespa motorscooters that then are being sold to clueless American buyers, unaware that they will be buying dangerous junk. He travels with a B1/B2 to San Francisco, still working for the same Vietnamese company. There he now takes possession of the crated scooters after they have been unloaded in the Port of San Francisco, assembles them, and does minor touch up work, before shipping them to the U.S. buyers. He is being paid in Vietnamese Dong on his account in Vietnam.

So, Jim, you are saying that it is perfectly legal for a foreigner to engage in such paid work while in the US on a B1/B2 because he is working for a Vietnamese company and is paid in Vietnam?

So a German tourist can sell Mercedes automobiles at a Mercedes-Benz dealership in Beverly Hills as long as he is paid in Euro in Germany?

Seriously?

[Little_My 464]

I'm still confused. And I am not saying I think you're wrong necessarily, and your Vietnamese example does make sense, but let's say a journalist enters US on a B1 visa, and while here writes an article that is due for his foreign employer, emails it, and gets paid. Would that be illegal? Or a website designer comes to the US under VWP for a 3-week holiday, and during his holiday has to finish a job for a client, so while here on VWP as a tourist he also does some work on a website project - for a foreign client - and gets paid, by his foreign employer.

For example, I was here on VWP once, years ago, purely as a tourist for about 3 weeks or so. While I was here, I still did some work via email to my employer back home in Finland. I don't believe that was illegal or unauthorized - it has nothing to do with the US, the income is not subject to tax here, and I do not need authorization from USCIS.

In your Vietnam / German examples, the foreigners are obviously entering US to conduct business IN the US, with US based clients - which maybe makes a difference here. But if the OP worked for a foreign employer doing whatever he does, assuming it has nothing to do with him being in the US (website design, for example), would that really still be considered illegal or unauthorized?

[Deema & Wayne 28]

I strongly disagree. So let me grab the ball you threw and run with it.

Your wife comes from Vietnam, so let's stick with that.

Vietnamese citizen is employed at Ho Chi Minh City. He restores vintage Vespa motorscooters that then are being sold to clueless American buyers, unaware that they will be buying dangerous junk. He travels with a B1/B2 to San Francisco, still working for the same Vietnamese company. There he now takes possession of the crated scooters after they have been unloaded in the Port of San Francisco, assembles them, and does minor touch up work, before shipping them to the U.S. buyers. He is being paid in Vietnamese Dong on his account in Vietnam.

So, Jim, you are saying that it is perfectly legal for a foreigner to engage in such paid work while in the US on a B1/B2 because he is working for a Vietnamese company and is paid in Vietnam?

So a German tourist can sell Mercedes automobiles at a Mercedes-Benz dealership in Beverly Hills as long as he is paid in Euro in Germany?

Seriously?

I can see your point, but don't you think that the examples are a bit extreme and don't really apply to my case; I work as a business developer in an IT company through email and have an employment letter to prove it. What I'm saying is that the examples you gave are considered to be working in the US illegally, and by in I mean conducting the actual business from here by interacting with American buyers. I'm not doing that at all.

Edited September 25, 2011 by Deema & Wayne

[*Snowdrop* 604]

I'm still confused. And I am not saying I think you're wrong necessarily, and your Vietnamese example does make sense, but let's say a journalist enters US on a B1 visa, and while here writes an article that is due for his foreign employer, emails it, and gets paid. Would that be illegal? Or a website designer comes to the US under VWP for a 3-week holiday, and during his holiday has to finish a job for a client, so while here on VWP as a tourist he also does some work on a website project - for a foreign client - and gets paid, by his foreign employer.

For example, I was here on VWP once, years ago, purely as a tourist for about 3 weeks or so. While I was here, I still did some work via email to my employer back home in Finland. I don't believe that was illegal or unauthorized - it has nothing to do with the US, the income is not subject to tax here, and I do not need authorization from USCIS.

In your Vietnam / German examples, the foreigners are obviously entering US to conduct business IN the US, with US based clients - which maybe makes a difference here. But if the OP worked for a foreign employer doing whatever he does, assuming it has nothing to do with him being in the US (website design, for example), would that really still be considered illegal or unauthorized?

I think this is a gray area where the new media inspired world of work has moved faster than the immigration and employment laws of many countries. There are many 'global citizens' now who travel and work remotely for long periods of time. The business man who checks his email while on vacation and makes a decision and sends an email which seals the deal on a job which earns him a huge bonus. Was that 5 minutes of work considered illegal? There is that book - 'the 4 hour work week' based on the idea of setting up your sales empire so that it runs mostly on an automated system and you just have to supervise a few hours a week. If you do that while on your travels or from an exotic beach - are you working illegally in that country?

The problem with US immigration is they don't really like grey areas so while seeking an immigration benefit it's often better if you fit into a neat box they understand and do everything by the (current) book.

[Deema & Wayne 28]

I think this is a gray area where the new media inspired world of work has moved faster than the immigration and employment laws of many countries. There are many 'global citizens' now who travel and work remotely for long periods of time. The business man who checks his email while on vacation and makes a decision and sends an email which seals the deal on a job which earns him a huge bonus. Was that 5 minutes of work considered illegal? There is that book - 'the 4 hour work week' based on the idea of setting up your sales empire so that it runs mostly on an automated system and you just have to supervise a few hours a week. If you do that while on your travels or from an exotic beach - are you working illegally in that country?

The problem with US immigration is they don't really like grey areas so while seeking an immigration benefit it's often better if you fit into a neat box they understand and do everything by the (current) book.

Makes sense. Like I said I have no intention on pursuing this as part of the household income and we can do without it. It's just that I am a tourist and still don't know what's going to happen with my application. What if I quit my job, sit here and wait and get denied...Now I really wish I hadn't sent that as part of the income, I hope it will not be a problem during the interview and accept my letter. What did you guys think of what I wrote in that letter?

[Dakine10 5,452]

But if the OP worked for a foreign employer doing whatever he does, assuming it has nothing to do with him being in the US (website design, for example), would that really still be considered illegal or unauthorized?

You could ask 10 people at USCIS and get probably get 10 different answers on this. Strictly speaking, you can't work on a B2 visa; the purpose of the visa is for pleasure or tourism. A B1 is actually for business visitors who are getting paid by their foreign employer. USCIS complicates things now by issuing B1/B2 together. However at the time of admission, one is entering either for the purpose of business or pleasure, not both.

Of course there is nothing wrong with getting paid by a foreign employer in a foreign bank account while you are in the US visiting, so the issue is not one of unauthorized employment but it could be a violation of status. If you enter as a visitor and then begin primarily conducting business, you have the wrong visa. If you are entering as a tourist and check up on work occasionally, theres nothing wrong with that.

In practice, I'm not sure what USCIS does in this scenario, if anything. I don't think its a topic that one would generally raise in conversation with USCIS when departing the US.

Edited September 25, 2011 by Dakine10

[Deema & Wayne 28]

I didn't begin conducting business, I check up on work and continue to get paid. I just don't want this to be a red flag in my case.

[Dakine10 5,452]

I didn't begin conducting business, I check up on work and continue to get paid. I just don't want this to be a red flag in my case.

Sorry, I wasn't implying you did. I was just answering in general terms.