EAD and working remotely

[Alan_G_ 8]

Wondering if anyone can let me know if the below situation is allowed or not or a grey area. 

 

I have my own company (web design) and while I know I cant work for an employer in the US while waiting on my EAD but can i work on projects coming in through my company at home? I have seen posts online at people working freelance and on upwork etc but this is not my situation.

 

I have current clients who I do work for now and then making updates etc and obviously expect to have new clients in the coming months that will be looking for a web site etc. I havent decided yet long term  if I will get a 9-5 in the US or keep my business fully operational and work at it when in the US and eventually set it up there. 

 

To clarify, any client currently pays my company (an LLC company I believe you call it in the US) and then I draw a wage from the business. 

 

To my understanding there is a definite issue about my company working with any clients based in the US as they are getting the benefit of me doing work indirectly for their business - open to correction on this?

 

But does this also impact my ability to work with my existing clients at home and any new clients which would contact my company during this time?

 

Thanks

[JFH 12,189]

There are two schools of thought on this matter. One is that you are considered to be working wherever your body is physically located whilst doing the work, regardless of who pays, where the client is located and where the end product is used. Makes sense as the money you earn will be spent here in the USA so it’s income earned in the USA. The other school of thought is that you are only working here if the employer is here and you are paid here. Unfortunately the rules were written before remote working was commonplace. 

 

I’m with the first school of thought - you are economically active here. You are certainly liable for taxation here as you are physically present here. Try explaining that when it comes to AOS and they see that someone who cannot legally work here has been reporting wages on a tax return. 

 

Is it worth it? What will you do about health insurance? You are gambling on exchange rates also. 

 

There is a much simpler option if you want to work here from beginning. 

[geowrian 22,335]

Exactly as above...there is no definitive ruling on this matter.

Getting married and doing a CR-1 visa removes any shroud of doubt since you are authorized to work immediately.

[Alan_G_ 8]

42 minutes ago, JFH said:

There is a much simpler option if you want to work here from beginning. 

Thanks for the reply. What simpler option do you mean? Did you mean the CR1? 

 

 

[JFH 12,189]

28 minutes ago, Alan_G_ said:

Thanks for the reply. What simpler option do you mean? Did you mean the CR1? 

 

 

Yes

[Ontarkie 13,916]

~~Moved to Working and Traveling, from K1 P&P ~~

[Loki_Go 126]

On 10/11/2018 at 8:35 PM, JFH said:

There are two schools of thought on this matter. One is that you are considered to be working wherever your body is physically located whilst doing the work, regardless of who pays, where the client is located and where the end product is used. Makes sense as the money you earn will be spent here in the USA so it’s income earned in the USA. The other school of thought is that you are only working here if the employer is here and you are paid here. Unfortunately the rules were written before remote working was commonplace. 

 

I’m with the first school of thought - you are economically active here. You are certainly liable for taxation here as you are physically present here. Try explaining that when it comes to AOS and they see that someone who cannot legally work here has been reporting wages on a tax return. 

 

Is it worth it? What will you do about health insurance? You are gambling on exchange rates also. 

 

There is a much simpler option if you want to work here from beginning. 

Hi. I went through the K1 to EAD to green card process and worked remotely through the whole thing, over 3 years ago now. I still work for my Canadian company. I have no idea where this "body is physically located" stuff came from but that's not true. Now, I will caution I set myself up to ensure I didn't have my paycheque deposited directly into a US bank account. I still have my Canadian bank accounts and investments. My paycheque goes in there.

As far as US taxes go all that money is considered "foreign income" and is not considered income earned from a job. Which is great for skirting the "no working" rule but it really hits ya hard around tax time because you're taxed twice on the same money.

"Try explaining that when it comes to AOS and they see that someone who cannot legally work here has been reporting wages on a tax return."
As I said, it's not an issue. My accountant correctly files it all as foreign income.

Not everyone needs to stop working 6+ months through this process. I only missed one day of work, the day I physically moved my things to the US. The next day I lgged in remotely and continued on.

And yes, this did come up in my EAD interview. He asked my husband what I did for a living and he followed that up with a couple more questions and moved on. It felt like he was testing us to see if we were going to lie about it and we didn't. And it wasn't an issue.

I have said it before in this thread and I'll say it again, if anyone has the opportunity to continue working remotely it is a viable option. I don't know why people speak on things that they have no experience with and come up with these "where the body lies" theories. It's simply not true.

 

[geowrian 22,335]

14 minutes ago, Loki_Go said:

As far as US taxes go all that money is considered "foreign income" and is not considered income earned from a job. Which is great for skirting the "no working" rule but it really hits ya hard around tax time because you're taxed twice on the same money.

If one meets the bona fide resident or substantial presence tests (the latter being the key one here), they would be considered to e a resident alien for tax purposes and worldwide income needs to be reported. The FEIE won't qualify, but the FTC should still apply...avoiding the double taxation issue.

 

Note that this is all a tax issue, not an immigration one.

 

14 minutes ago, Loki_Go said:

And yes, this did come up in my EAD interview. He asked my husband what I did for a living and he followed that up with a couple more questions and moved on. It felt like he was testing us to see if we were going to lie about it and we didn't. And it wasn't an issue.

You didn't have an EAD interview. You would have an AOS interview.

The reason it wasn't an issue is because unauthorized work is not a bar for AOS as the immediate relative of a USC. Whether it was allowed or not was not relevant to your case. If you had been working as a manager across the street from the IO, it would have been no different.

 

The issue of remote work remains a gray area that has no definitive rules on when it crosses over into unauthorized work (if ever).

Edited November 23, 2018 by geowrian

[Loki_Go 126]

"To my understanding there is a definite issue about my company working with any clients based in the US as they are getting the benefit of me doing work indirectly for their business - open to correction on this? "

Our customer base is probably 80% American. I think the key is to not work directly with them in the US, but you'll have to keep VPNing into a computer in your country and work out from there. Pain the butt? Yep. That's what I do. I definitely wouldn't connect directly and do work directly with them; now THAT I would see as working illegally.

I also don't meet with any US customers over here. When I work I VPN into my Canadian company and do all my work on my station there.

 

 

[Loki_Go 126]

2 minutes ago, geowrian said:

You didn't have an EAD interview. You would have an AOS interview.

The reason it wasn't an issue is because unauthorized work is not a bar for AOS as the immediate relative of a USC. Whether it was allowed or not was not relevant to your case.

 

The issue of remote work remains a gray area that has no definitive rules on when it crosses over into unauthorized work (if ever).

YES! You're right.  It was an AOS interview, my bad. My terminology is rusty after all this time. In fact, I received my green card in the mail before I got my EOD card. That card came about 4 days later.

 

[Loki_Go 126]

6 minutes ago, geowrian said:

If one meets the bona fide resident or substantial presence tests (the latter being the key one here), they would be considered to e a resident alien for tax purposes and worldwide income needs to be reported. The FEIE won't qualify, but the FTC should still apply...avoiding the double taxation issue.

 

Note that this is all a tax issue, not an immigration one.

 

That's interesting. I'll have to mention that to my accountant because although he had over 20 years experience he hadn't worked with anyone in my situation. If I could not get double taxed, that'd be great.

 

[geowrian 22,335]

Just now, Loki_Go said:

That's interesting. I'll have to mention that to my accountant because although he had over 20 years experience he hadn't worked with anyone in my situation. If I could not get double taxed, that'd be great.

The FTC doesn't apply with every country, but Canada shouldn't be an issue AFAIK. You should only effectively pay the higher tax rate - i.e. if it's 10% here and 12% there, the most you pay should only be 12% (although possibly split up as 10% and 2%).

[Loki_Go 126]

9 minutes ago, geowrian said:

The reason it wasn't an issue is because unauthorized work is not a bar for AOS as the immediate relative of a USC. Whether it was allowed or not was not relevant to your case.

 

Also I don't know what you mean by this. My husband is considered an immediate relative?
 

I definitely remember this issue being very relevant to my case.

 

[geowrian 22,335]

3 minutes ago, Loki_Go said:

Also I don't know what you mean by this. My husband is considered an immediate relative?
 

I definitely remember this issue being very relevant to my case.

Yup. Spouse, parent, and under-21 children are considered immediate relatives for immigration purposes.

 

They likely asked to see if you were lying, which can be a misrepresentation issue. But it had no impact on your ability to AOS. As noted in my edit, if you had been working (non-remotely) across the street from the IO then it wouldn't have been an issue for AOS either (not that I am condoning or advising anybody to do this! Unauthorized work has other consequences than just those for AOS, if caught.).

Edited November 23, 2018 by geowrian

[JFH 12,189]

3 minutes ago, Loki_Go said:

Also I don't know what you mean by this. My husband is considered an immediate relative?
 

I definitely remember this issue being very relevant to my case.

 

It means that certain breaches of immigration law are forgiven for spouses of USCs. Illegal working and overstay are the main ones. So if you have done either of them and you are adjusting status as a spouse, you cannot be denied purely on that basis.