Can I continue working remotely while waiting for an EAD?

[Sparkey 17]

1 minute ago, HRQX said:

Here is an October 23 filer that only paid the $1225 I-485 fee:

 

Here is a January 12 filer that only paid the $1225 I-485 fee:

 

Use the USCIS fee calculator: https://www.uscis.gov/feecalculator For I-765 and I-131 select "Yes" to both "Did you file your pending I-485 on or after July 30, 2007?" and "Did you pay the I-485 required application fee?"

 

I-485: $1225

I-765: $0

I-131: $0

Great! Hope that's still the price when it's my turn to file. 

[Unlockable 7,306]

*** One post removed for indirectly promoting violating immigration rules.

 

VJ Moderation

[INF 96]

The only thing I would say is to go talk to an attorney about this. They’ll let you know the rules around this! 

[KimAyo 35]

Contrary to what many have opined on this post, the reason you can’t work in the USA is because you don’t have the right to until you have your EAD. Technically, you can’t get any work without the authorisation document unless under the table. 
 

However, regarding your foreign job....you are still domiciled in your home country and can very well continue with your job remotely, if your company permits it. Your tax will be applied in your home country as if you were there and you don’t have to report any of such tax in the US. As far as your US application is concerned, you are not working. 
 

Think of this like having a business in your home country that is still generating income in your absence. On a second note, nobody knows about your job including the IRS since it’s not connected to any social security or earning in the USA. 

[HRQX 4,145]

23 minutes ago, KimAyo said:

However, regarding your foreign job....you are still domiciled in your home country and can very well continue with your job remotely, if your company permits it. Your tax will be applied in your home country as if you were there and you don’t have to report any of such tax in the US. As far as your US application is concerned, you are not working. 
 

Think of this like having a business in your home country that is still generating income in your absence.

See the Substantial Presence test: https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test OP would be a resident alien for tax purposes. Also federal law requires worldwide income to be reported to IRS.

23 minutes ago, KimAyo said:

On a second note, nobody knows about your job including the IRS since it’s not connected to any social security or earning in the USA. 

Failing to disclose the foreign income is a federal offense. Also see Revenue Ruling 92-106, 1992-2 C.B. 258 for foreign employer and Social Security.

[KimAyo 35]

10 hours ago, HRQX said:

See the Substantial Presence test: https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test OP would be a resident alien for tax purposes. Also federal law requires worldwide income to be reported to IRS.

Failing to disclose the foreign income is a federal offense. Also see Revenue Ruling 92-106, 1992-2 C.B. 258 for foreign employer and Social Security.

I looked this up and you are right. By the time you spend at least 31 days in a particular tax/calendar year you would be considered a non-resident alien that has qualified under the “substantial presence test” for tax purposes whether or not you have a green card or any other official authorisation to stay in the US. 
 

Grey area if you ask me but very good info nonetheless. Thanks. 

[INF 96]

On 3/7/2021 at 10:23 PM, HRQX said:

See the Substantial Presence test: https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test OP would be a resident alien for tax purposes. Also federal law requires worldwide income to be reported to IRS.

Failing to disclose the foreign income is a federal offense. Also see Revenue Ruling 92-106, 1992-2 C.B. 258 for foreign employer and Social Security.

This is very complex. The substantial presence is not the only way to determine residency. If you are a member of a treaty country, it can be assessed on which country you had more ties to and then file as a non resident in the US using tiebreakers. However, there’s drawbacks to that too. Talk to a CPA! 

Edited March 9, 2021 by INF

[INF 96]

On 3/7/2021 at 9:56 PM, KimAyo said:

Contrary to what many have opined on this post, the reason you can’t work in the USA is because you don’t have the right to until you have your EAD. Technically, you can’t get any work without the authorisation document unless under the table. 
 

However, regarding your foreign job....you are still domiciled in your home country and can very well continue with your job remotely, if your company permits it. Your tax will be applied in your home country as if you were there and you don’t have to report any of such tax in the US. As far as your US application is concerned, you are not working. 
 

Think of this like having a business in your home country that is still generating income in your absence. On a second note, nobody knows about your job including the IRS since it’s not connected to any social security or earning in the USA. 

This is exactly why it is a grey area in immigration law. Every lawyer will have their own opinion.

[FlyingCircus 5]

For what it's worth, my spouse worked remotely for a foreign employer for a period of time while the AOS was pending (which was later abandoned upon returning to their home country) and honestly it has been a headache to try to sort through.

 

On the tax issue, I would recommend reading IRS Publication 519 carefully as well as IRS Publication 54.

 

My interpretation after reviewing everything on my own and then carefully with an experienced CPA was that we did need to consider a portion of the earnings as "US source Income". We are filing jointly and will be able to exclude the majority of my spouse's earnings with the Foreign Earned Income Exclusion, but depending on your situation you may not. For us, the example on page 17 of Pub. 54 was very relevant when it came to taxation.

 

I was recommended by others on this forum to just not worry about it, etc. but to me the IRS guidelines are pretty clear. The question about whether it is against the law from an immigration perspective may be more of a gray area but honestly it has not been worth the stress for me. If I had it to do over again we would have avoided the issue altogether.

Edited March 10, 2021 by FlyingCircus

[INF 96]

5 hours ago, FlyingCircus said:

For what it's worth, my spouse worked remotely for a foreign employer for a period of time while the AOS was pending (which was later abandoned upon returning to their home country) and honestly it has been a headache to try to sort through.

 

On the tax issue, I would recommend reading IRS Publication 519 carefully as well as IRS Publication 54.

 

My interpretation after reviewing everything on my own and then carefully with an experienced CPA was that we did need to consider a portion of the earnings as "US source Income". We are filing jointly and will be able to exclude the majority of my spouse's earnings with the Foreign Earned Income Exclusion, but depending on your situation you may not. For us, the example on page 17 of Pub. 54 was very relevant when it came to taxation.

 

I was recommended by others on this forum to just not worry about it, etc. but to me the IRS guidelines are pretty clear. The question about whether it is against the law from an immigration perspective may be more of a gray area but honestly it has not been worth the stress for me. If I had it to do over again we would have avoided the issue altogether.

I completely agree with this. From a taxation perspective it is quite hard to sort through. 

[FlyingCircus 5]

20 hours ago, INF said:

I completely agree with this. From a taxation perspective it is quite hard to sort through. 

A lot of people in this forum seem to try to ignore the taxation issue, but I'll just drop the example from the IRS that I mentioned and that I think is very relevant to remote work performed in the US. Still, you'll get much, much more important knowledge around this by reading the two publications that I mentioned earlier, Pub. 519 and Pub. 54:

 

Quote

Source of Earned Income

The source of your earned income is the place where you perform the services for which you received the income. Foreign earned income is income you receive for working in a foreign country. Where or how you are paid has no effect on the source of the income. For example, income you receive for work done in Austria is income from a foreign source even if the income is paid directly to your bank account in the United States and your employer is located in New York City.

Example.

You are a U.S. citizen, a bona fide resident of Canada, and working as a mining engineer. Your salary is $76,800 per year. You also receive a $6,000 cost-of-living allowance, and a $6,000 education allowance. Your employment contract did not indicate that you were entitled to these allowances only while outside the United States. Your total income is $88,800. You work a 5-day week, Monday through Friday. After subtracting your vacation, you have a total of 240 workdays in the year. You worked in the United States during the year for 6 weeks (30 workdays). The following shows how to figure the part of your income that is for work done in Canada during the year.

	Number of days worked in Canada during the year (210)	×	Total income ($88,800)	=	$77,700
	Number of days of work during the year for which payment was made (240)

 

Your foreign source earned income is $77,700.

 

Trying to stick to quoting the IRS here rather than giving actual tax advice.

 

Edit: and remember (especially for those adjusting status):

 

Quote

Nonresident Alien or Resident Alien?

Nonresident Aliens

If you are an alien (not a U.S. citizen), you are considered a nonresident alien unless you meet one of the two tests described under Resident Aliens below.

 

Resident Aliens

You are a resident alien of the United States for tax purposes if you meet either the green card test or the substantial presence test for calendar year 2020 (January 1–December 31). Even if you do not meet either of these tests, you may be able to choose to be treated as a U.S. resident for part of the year. See First-Year Choice under Dual-Status Aliens, later.

...

First Year of Residency

If you are a U.S. resident for the calendar year, but you were not a U.S. resident at any time during the preceding calendar year, you are a U.S. resident only for the part of the calendar year that begins on the residency starting date. You are a nonresident alien for the part of the year before that date.

 

...

Source of Income

Resident Aliens

A resident alien's income is generally subject to tax in the same manner as a U.S. citizen. If you are a resident alien, you must report all interest, dividends, wages, or other compensation for services, income from rental property or royalties, and other types of income on your U.S. tax return. You must report these amounts from sources within and outside the United States.

 

Edited March 12, 2021 by FlyingCircus

[INF 96]

4 hours ago, FlyingCircus said:

A lot of people in this forum seem to try to ignore the taxation issue, but I'll just drop the example from the IRS that I mentioned and that I think is very relevant to remote work performed in the US. Still, you'll get much, much more important knowledge around this by reading the two publications that I mentioned earlier, Pub. 519 and Pub. 54:

 

 

Trying to stick to quoting the IRS here rather than giving actual tax advice.

 

Edit: and remember (especially for those adjusting status):

 

 

Very interesting. I have been told that I can file my Canadian income as foreign income and not have to include that in the US income. 

[BC97 13]

I'm aware I'm resurrecting an old thread, but thought it would be useful for others to know that I worked remotely as a consultant for a UK firm whilst waiting on my I-485, and I did not have an EAD. My green card was approved yesterday after I answered 'yes' to working whilst here in the interview (I was not working when I filed the I-485). I was asked by the USCIS officer what company I was working for and I said the company name and that it was in the UK, and I was working remotely for them from a home office. He said 'so you're working over there technically, no more questions - the answer to if you're working is no'. And he left it unchanged on the form. 

 

If I hadn't accepted working remotely for this company I'd have missed out on a lot of potential pay, so if you have the chance to work remotely for a foreign entity (not a US firm), definitely do it. I had no issues - I plan on filing my taxes with IRS retrospectively and getting an accountant to do it for me once I have my social security.

[Boiler 43,420]

22 minutes ago, BC97 said:

I'm aware I'm resurrecting an old thread, but thought it would be useful for others to know that I worked remotely as a consultant for a UK firm whilst waiting on my I-485, and I did not have an EAD. My green card was approved yesterday after I answered 'yes' to working whilst here in the interview (I was not working when I filed the I-485). I was asked by the USCIS officer what company I was working for and I said the company name and that it was in the UK, and I was working remotely for them from a home office. He said 'so you're working over there technically, no more questions - the answer to if you're working is no'. And he left it unchanged on the form. 

 

If I hadn't accepted working remotely for this company I'd have missed out on a lot of potential pay, so if you have the chance to work remotely for a foreign entity (not a US firm), definitely do it. I had no issues - I plan on filing my taxes with IRS retrospectively and getting an accountant to do it for me once I have my social security.

SNN is one of the first things you get following entry on a K1.

[BC97 13]

Just now, Boiler said:

SNN is one of the first things you get following entry on a K1.

Oh I wish. Called them every week for 6 weeks after arrival before I got an appointment and got knocked back until I eventually got someone who put me through to the manager who gave me a next day appointment. By the time DHS reviewed it, my K1 had less than 14 days to expiry so they wouldn't issue me a SSN. Just bad luck with my local field office