Awaiting EAD, can and can't do's

[Boiler 43,764]

Plus you are very limited as to what you can do under a B.

[Kiwinyc 62]

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.

A person can remain domiciled in another country even if they have left it though. K1 status remains a grey area. I would argue that until someone has received Permanent Residence Status here in the US they are legally domiciled to their original country. If, legally they are still employed and paying taxes there. It is certainly not US employment.

[Dannyboy11 0]

Novedsac, to answer your question, it wouldn't be a deferred payment.

The company are suggesting me being an independent contractor for them in the US rather than an employee. I would simply not be paid anything while the EAD is in the process. It's a strange thing they have suggested for sure, but their thinking is that it would allow me to hit the ground running when my EAD comes though and not have to go through what can be a lengthy process finding employment at that stage. They would be making up this role for me simply because they have valued my contribution to the company while an employee here in the UK. Hopefully this sheds more light on my scenario.

[Mbrennan 15]

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

I am going through the exact same situation as yourself. I have put this question to our lawyer. I am still waiting on a few things being clarified, but she did say that working for a foreign company whilst in the US is illegal, but if your working 'remotely' as it sounds like you'd be doing, then it's a gray matter. I have asked the question 'if I got paid into a uk bank account in GBP, would that be allowed' but I'm awaiting an answer.

In any case I was told I would have to apply for employment authorisation upon entering the country, & again during adjustment of status.

Hope that helps.

[Boiler 43,764]

I am going through the exact same situation as yourself. I have put this question to our lawyer. I am still waiting on a few things being clarified, but she did say that working for a foreign company whilst in the US is illegal, but if your working 'remotely' as it sounds like you'd be doing, then it's a gray matter. I have asked the question 'if I got paid into a uk bank account in GBP, would that be allowed' but I'm awaiting an answer.

In any case I was told I would have to apply for employment authorisation upon entering the country, & again during adjustment of status.

Hope that helps.

It does not matter where you are paid or in what currency.

The Tax situation is a little clearer.

[Mbrennan 15]

It does not matter where you are paid or in what currency.

The Tax situation is a little clearer.

What do you mean regarding the tax situation?

[Boiler 43,764]

US taxes you on your world wide income.

[sweet cakes 326]

US taxes you on your world wide income.

Ouch! That's the catch then. Taxed twice.

[Boiler 43,764]

No.

[JayJayH 546]

A person can remain domiciled in another country even if they have left it though. K1 status remains a grey area. I would argue that until someone has received Permanent Residence Status here in the US they are legally domiciled to their original country. If, legally they are still employed and paying taxes there. It is certainly not US employment.

I concur. K-1 is a non-immigrant visa. A person cannot be domiciled in the US as a non-immigrant.

Novedsac, to answer your question, it wouldn't be a deferred payment.

The company are suggesting me being an independent contractor for them in the US rather than an employee. I would simply not be paid anything while the EAD is in the process. It's a strange thing they have suggested for sure, but their thinking is that it would allow me to hit the ground running when my EAD comes though and not have to go through what can be a lengthy process finding employment at that stage. They would be making up this role for me simply because they have valued my contribution to the company while an employee here in the UK. Hopefully this sheds more light on my scenario.

Your problem is that you're doing labor in the US, for which a US person could otherwise be paid.

Whether you are paid or not does not matter.

It does not matter where you are paid or in what currency.

Very true.

Again, what turns into gray area is when the actual job itself has nothing to do with the US. For example, imagine a telemarketer from Ireland on vacation in the US. Nowadays, one can easily use Skype or a VoIP phone to make 'domestic' calls anywhere in the world. The company paying would be based in Ireland, and wouldn't even need to know their employee was in the US. The job itself would have nothing to do with the US, and no US person could even work it without Irish work authorization.

Legally, it's gray area because there is no court precedence.

Quite how the USCIS would know is another question.

[Boiler 43,764]

Again, what turns into gray area is when the actual job itself has nothing to do with the US. For example, imagine a telemarketer from Ireland on vacation in the US. Nowadays, one can easily use Skype or a VoIP phone to make 'domestic' calls anywhere in the world. The company paying would be based in Ireland, and wouldn't even need to know their employee was in the US. The job itself would have nothing to do with the US, and no US person could even work it without Irish work authorization.

A telemarketer would not need work authorization in the Country they are calling.

[Kiwinyc 62]

Your problem is that you're doing labor in the US, for which a US person could otherwise be paid.

Whether you are paid or not does not matter.

Is the OP's company is doing business in the US? If the work he is doing only benefits the companys Canadian office, and he is being paid in Canadian dollars and paying Canadian taxes and he can perform this work from anywhere then I don't see how this falls foul of US labor laws. He is not replacing a US worker. This Canadian company has no interest in hiring a US worker, its business is not in the U.S.

And no, you are not taxed twice! You only have to pay taxes to the country where you earn the money. There is a tax treaty so you aren't taxed twice on the same income.

[Boiler 43,764]

Is the OP's company is doing business in the US? If the work he is doing only benefits the companys Canadian office, and he is being paid in Canadian dollars and paying Canadian taxes and he can perform this work from anywhere then I don't see how this falls foul of US labor laws. He is not replacing a US worker. This Canadian company has no interest in hiring a US worker, its business is not in the U.S.

And no, you are not taxed twice! You only have to pay taxes to the country where you earn the money. There is a tax treaty so you aren't taxed twice on the same income.

Simplistically wrong answer for a complicated situation.

[JayJayH 546]

A telemarketer would not need work authorization in the Country they are calling.

If they are employed and paid by a company in that country, they would. If a US company hires a company in India to telemarket for them, then the employee would be hired and paid in India.

If you do telemarketing for your own company, that's a different matter. But this is getting too technical, with no precedence. Your earlier post regarding technical legality vs expected grief was good.

Edited April 17, 2014 by Yang-Ja

[NikLR 13,220]

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.

Canadian company would also have to prove, with great expense and time, that there would not be another Canadian they could hire for the job.