Digital nomad while waiting for EAD card (split)

[Crazy Cat 41,981]

1 hour ago, tjdavis72 said:

My fiancé is a digital nomad so waiting for 5-6 months for EAD and then AOS is no biggie.  

Only if you want to obey the law.   Working INSIDE the US without proper authorization is illegal.

Edited January 5, 2021 by Lucky Cat

[JonSeattle 202]

1 minute ago, Lucky Cat said:

Only if you want to obey the law.   Working INSIDE the US without proper authorization is illegal.

Even if you are not prosecuted for that, it is also a reason for denial of a GC, and who needs that stress?

[Crazy Cat 41,981]

1 hour ago, tjdavis72 said:

My fiancé is a digital nomad

"digital nomads" are not authorized to work inside the US without an EAD, imo....

 

https://www.nationofimmigrators.com/courts-on-immigration-law/immigration-lawyers-arguing-can-i-work-from-home-for-a-foreign-employer/

Edited January 5, 2021 by Lucky Cat

[Orangesapples 1,954]

1 minute ago, JonSeattle said:

Even if you are not prosecuted for that, it is also a reason for denial of a GC, and who needs that stress?

Illegal work is not a reason to deny AOS for spouses of US citizens 

[mongo 2]

1 hour ago, Lucky Cat said:

Only if you want to obey the law.   Working INSIDE the US without proper authorization is illegal.

I haven't come across any law stating that working as a digital nomad in the US is illegal. I know some countries have started issuing special visas so nomads can apply to stay longer than a typical tourist visa. It's a grey area that has not been addressed by the US Gov. If my Fiancé is managing a business back in Korea, getting paid in Korean currency through a Korean bank account....I don't see the issue there.

Edited January 5, 2021 by tjdavis72

[SalishSea 17,928]

3 hours ago, tjdavis72 said:

I haven't come across any law stating that working as a digital nomad in the US is illegal. I know some countries have started issuing special visas so nomads can apply to stay longer than a typical tourist visa. It's a grey area that has not been addressed by the US Gov. If my Fiancé is managing a business back in Korea, getting paid in Korean currency through a Korean bank account....I don't see the issue there.

Doing any type of work (remote or otherwise) in the US without an EAD is not allowed.    You need to do your research.

[mongo 2]

30 minutes ago, Jorgedig said:

Doing any type of work (remote or otherwise) in the US without an EAD is not allowed.    You need to do your research.

Someone who is admitted into the US with B1/B2 status (Visitor Visa ) can certainly open their computer and "work" remotely for non-US clients. ... Unless you are working for a US company, or have US clients who you see while in the USA, your are still just a tourist for tax and immigration purposes.

 

Granted.....This is for B1/B2, and would also apply to an ESTA. But no where does it specifically state anything different for a K-1. Unless you have a better source than me and can show it?

Edited January 6, 2021 by tjdavis72

[Unlockable 7,315]

10 hours ago, tjdavis72 said:

Someone who is admitted into the US with B1/B2 status (Visitor Visa ) can certainly open their computer and "work" remotely for non-US clients. ... Unless you are working for a US company, or have US clients who you see while in the USA, your are still just a tourist for tax and immigration purposes.

 

Granted.....This is for B1/B2, and would also apply to an ESTA. But no where does it specifically state anything different for a K-1. Unless you have a better source than me and can show it?

Visitor visas are NON-immigrant visas. A K1 is a visa with immigrant intent. Once you have immigrant intent you must abide by the guidelines of an immigrant, thus not work even if it is remote. You care using the guidelines for nonimmigrant visas for immigrant visas to try to make your point and that is not the case here.

[EM_Vandaveer 2,408]

13 hours ago, tjdavis72 said:

Someone who is admitted into the US with B1/B2 status (Visitor Visa ) can certainly open their computer and "work" remotely for non-US clients. ... Unless you are working for a US company, or have US clients who you see while in the USA, your are still just a tourist for tax and immigration purposes.

 

Granted.....This is for B1/B2, and would also apply to an ESTA. But no where does it specifically state anything different for a K-1. Unless you have a better source than me and can show it?

While unlikely to ever get caught in the visitor situation you describe, technically this would still count as illegal work. It is immaterial WHO you work for. The point is working/earning money WHILE ON US SOIL.

Edited January 6, 2021 by EM_Vandaveer

[millefleur 5,047]

**Topic split from ongoing thread as it has diverged into a discussion about whether working under a K-1/EAD card is valid in the us as a "digital nomad. Split off from this comment below. Please keep the "digital nomad" discussion to this thread only.**

 

VJ Moderation

 

22 hours ago, tjdavis72 said:

Obviously every situation is unique. In our case, I was living in Korea until recently. We were dating for 5 years and could have married at any time. As I got closer to moving back to the States the pressure increased. I was on the fence and decided on the K-1. A couple of main reasons for my decision was 1) Her family is very traditional and wanted a big (expensive) wedding, which neither of us wanted, but her parents were very adamant about having 2) I didn't want to get married under Korean law. 

 

The K-1 allows us to do it on our terms, which is eloping in DC at Jefferson Monument for $168..... My fiancé is a digital nomad so waiting for 5-6 months for EAD and then AOS is no biggie.  

[mongo 2]

On 1/6/2021 at 7:42 AM, Unlockable said:

Visitor visas are NON-immigrant visas. A K1 is a visa with immigrant intent. Once you have immigrant intent you must abide by the guidelines of an immigrant, thus not work even if it is remote. You care using the guidelines for nonimmigrant visas for immigrant visas to try to make your point and that is not the case here.

I'm not here to argue with anyone, I understand your point. However, a K-1 visa legally classified as non immigrant visa, yes it has "intent" to immigrate, but its not an immigrant visa.  Therefore, there are no laws stating a K-1 applicant cannot open a laptop, manage a foreign business, get paid in foreign currency, and deposited into a foreign bank account. Again, its a grey area that US Immigration law has not addressed. Will we wait for the EAD? Maybe. Can my Fiancé have her sister manage the business while we wait for EAD? Maybe. 

[mongo 2]

5 hours ago, mongo said:

I'm not here to argue with anyone, I understand your point. However, a K-1 visa legally classified as non immigrant visa, yes it has "intent" to immigrate, but its not an immigrant visa.  Therefore, there are no laws stating a K-1 applicant cannot open a laptop, manage a foreign business, get paid in foreign currency, and deposited into a foreign bank account. Again, its a grey area that US Immigration law has not addressed. Will we wait for the EAD? Maybe. Can my Fiancé have her sister manage the business while we wait for EAD? Maybe. I didn't wanna go down the rabbit hole, but I will. I don't know your immigration credentials, but Ive been a CBP Officer for 17 years, and still am. Worked primary and secondary on land border and airports. I've processed hundreds of IV applicants in Secondary and countless NIV travelers on primary. There is NO US Immigration law that states what you are saying. Its just not there...

 

[AstoriaAOS 33]

https://www.ecfr.gov/cgi-bin/text-idx?&node=pt8.1.274a#se8.1.274a_11

 

Section 274a.12(a)(6) requires that nonimmigrant fiancé(e)s have EADs issued by the Service (USCIS) in order to be authorized to accept employment.

 

Section 274a.1(h) defines employment as "any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected". The fact that this definition specifies labor performed on a vessel or aircraft leads me to believe that "within the United States" refers not to the location of the employer but to where the service or labor is performed.

 

If OP's fiancé(e) works as an employee for an employer, then I argue that they will need an EAD. But what is an employee/employer?

 

Section 274a.1(f) defines employee as "an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section".

 

Section 274a.1(j) defines independent contractors as "individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis. Factors to be considered in that determination include, but are not limited to, whether the individual or entity: supplies the tools or materials; makes services available to the general public; works for a number of clients at the same time; has an opportunity for profit or loss as a result of labor or services provided; invests in the facilities for work; directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done."

 

I think this particular case boils down to whether OP's fiancé(e) counts as an employee or independent contractor according to the definitions laid out above. If they engage in work as what is considered an employee, then an EAD will be required as outlined. If they engage in work as what is considered an independent contractor, then maybe not.

 

 

Edited January 11, 2021 by AstoriaAOS

[mongo 2]

On 1/6/2021 at 10:29 AM, EM_Vandaveer said:

While unlikely to ever get caught in the visitor situation you describe, technically this would still count as illegal work. It is immaterial WHO you work for. The point is working/earning money WHILE ON US SOIL.

False statement. That is not true.

Edited January 13, 2021 by mongo

[millefleur 5,047]

This has always been a grey area I thought? I believe the only advice we can really give here is proceed at your own risk given the vagueness of the law, or consult a lawyer if you want a professional opinion.