Working for Canadian company after moving with K 1 Visa - implications/possibilities? Need urgent advise

[Girl777 2]

Hi everyone, topic is partially related to immigration, partially to Canadian employer law I guess. I have a difficult situation. My fiance lives in US and we applied to K1 visa which is moving forward. I have a son and his father lives in Canada  and opposes  our move to US with our son ( I have sole custody of our child). I will be having court hearing in regards to permission for my son to move as I am  NOT ready and won't  move without him.  I work for Canadian company, no subsidiaries in US, purely Canadian company, some people are allowed to work form home 100 % but all live in Canada. I would be happy to keep my employment with this company if I was allowed were I to  move to US. At the same time, apart from financial benefit of not loosing this job upon relocation, a promise of my company to keep my employment if I move strengthens my court case as well for my final dream of moving and reuniting with my fiancé and blending into one family after 7  years of commute . My direct manager knows my situation  with move/court and she is supportive ,  so it is all about HR now and about immigration laws. I need advise on both, not sure where to start. I am ok to get some consultations with some specialists but not fully sure where to go. On one side, I need to understand if I am been allowed to work for Canadian company after I move to US and through that period before I get all my documents like residence, right to travel, right to work etc. I saw similar thread here in regards to this  with polar opinions. I need some official source, possible consultation with US immigration lawyer? Any recommendations?

 

Second question is that I feel I need to do research before approaching our HR with an inquiry if they can offer me anything to enhance my court case and can actually  look into possibility of  promising employment if I was to move, but I need to know all  cons they might be worried about  in this arrangement ( including immigration nuances as well as anything else). I assume the first thing they will say is that they have never had such a question before so I want  to gather as much information as possible. Other thought that comes to my mind that employer might be concerned about is around privacy issues that companies often worry about like me accessing data /internal network from outside Canada, considering we are purely Canadian company and this is a unique scenario for them. I am not worried about anything that relates purely  to my personal needs like double taxation, H & D benefits etc, I am capable of taking care of all of that on my own.

 

 

Any advise , where to do research, which professionals to speak to is much appreciated, urgent task for me to research due to court date coming up!!!! also, maybe someone has gone through similar experiences with Canada-US?

 

Thanks all

Edited February 27, 2021 by Girl777

[Boiler 43,433]

I would avoid the K1, sounds like you have enough complications, CR1 is much more suitable.

[Girl777 2]

we have petition approved, no choice now, visa and court hearing  kind of coming all in one time....no way back, just can try  to do all I can NOW

[Boiler 43,433]

The legal document that you are authorised to work is EAD

 

The legal document to travel is AP

 

Both take time to obtain once you marry and file to adjust

 

I think most people would assume somewhere in the 6 to 8 months period but nobody really knows. Covid etc has thrown normal time lines out of the window.

[Girl777 2]

so without EAD I can't work for canadian employer?

[Boiler 43,433]

I am sure people do, after all millions work in the SK without any authorisation. You seem to have read the posts discussing it and unauthorised work is sort of forgiven anyway when adjusting but you seem to be looking for confirmation that you can work.

[Girl777 2]

i want to follow legal route as I don't want to ask my current company for anything that they can't legally fulfill for me in practice if stated in theory in letter

[Boiler 43,433]

6 minutes ago, Girl777 said:

i want to follow legal route as I don't want to ask my current company for anything that they can't legally fulfill for me in practice if stated in theory in letter

Presumably you will be an independent contractor so am not sure if they are interested in your US details.

[SalishSea 16,770]

45 minutes ago, Girl777 said:

so without EAD I can't work for canadian employer?

You cannot do work of any type (even remotely, for a foreign company) whilst in the US without authorization.  That's the EAD.   And a huge drawback of the K-1.

[SteveInBostonI130 3,319]

Officially, you cannot work in the US when entering on a K1, until you marry and get your EAD.  One verification of this is when you apply for a SSN.  Until you get your greencard from AOS, the SSN card will state "NOT VALID FOR EMPLOYMENT", or "VALID FOR WORK ONLY WITH DHS AUTHORIZATION".

 

https://www.ssa.gov/ssnumber/cards.htm

 

Also, there was/is a documentary on Netflix from a few years back of a young German couple that came to the US on VWP (or tourist visa?) to buy and refit a schoolbus as an RV.  They left the US to Canada before their I-94 expired.  When they tried to enter the US again south of Vancouver (after a month or so and after visiting Alaska), they were denied entry.  CBP accused them of being digital nomads and were or intend to work remotely while in the US.  They only wanted to spend a few weeks in the US and continue to Mexico.  They were even denied a transit visa.  Eventually, with help from lawyers, they were allowed in and continued their trip for their documentary.  "Expedition Happiness"

 

https://www.imdb.com/title/tt6688136/

 

 

Unofficially, some people do work and have it "forgiven" during AOS by being married to a USC.  I do not know if it makes thing difficult later on, like when trying to naturalize.

[Villanelle 4,121]

I posted the above last month on a similar thread. Hopefully it clears up some of your questions. But honestly Im not exactly sure why you are asking what you are asking (?). Your post mentions a variety of issues like family court and employment law and while they can intersect they also need to be viewed independently. 

 

Im getting the impression that you want to be able to go to family court and show that you have a job lined up to strengthen your case for being able to relocate your son. In order to immigrate you need to establish to USCIS that you will not be a burden (over poverty guidelines/not in need of welfare benefits/etc) - hence the 134/864/944 type forms. In theory you could show the same to the court if the court has concerns about your financial status and ability to support yourself in the US. Family courts in the US place a greater emphasis on family unity and the overall well being of the child then finances of each involved. Im not sure how the courts in Canada view things. You may want to speak to a family law attny there to see what exactly you should present to be able to be granted permission to move the child. A work contract may not necessarily be needed or may do the opposite because if Congress has never clarified the issue a Canadian court isnt going to so to speak.

 

So I would suggest putting your focus on what you need for family court. Once you have all that figured out if you still want or need to attempt to work remotely then you need to speak to HR. As a Canadian company they will follow Canadian laws about employing people in such a fashion. While your direct manager may be supportive its not up to them. You mentioned knowing of various type issues that you would face like taxation and such as an individual so you must realize the company is going to have the same amount if not more to consider as a company and its impractical for you to be involved in such. Its kind of like when people post saying they need a work visa and how do they do that. Its done by the companies attnys. 

[S&L2020 3]

As a former Michigan resident I know plenty of people who live in the US and work for a Canadian company. I would just be sure that your taxes are being filed properly. It wouldn't hurt to do a little research or maybe legal consul on what effect if any will it have on your petition.  

[Bug&Bug 143]

Your company might be liable for US corporate taxes so you will need them to OK you working from abroad.

[Georgia16 2,858]

If the Courts allow you to move with your son then are you aware that he can not go back to see his father for almost what would probably be a year? 
he can’t come back in without the AP without abandoning his AOS after you file that. 
could see that being a big issue with court comepared to a CR-2 visa. 

[carmel34 3,531]

So much to consider here, this is a complicated situation with many factors that are all running together in your questions.  For perspective, I have lived half of my life in Canada and half in the US, and more than once had partial tax years in each country, so first issue is to do more research on the tax implications of what you are considering.  If you earn income from a Canadian company, the government there will deduct income taxes and expect you to file a return.  Once you have become a resident of the US, the IRS will want their share too, as will the state where you will move to, unless it's TX, FL, NV, and a few others.  There is a Canada/US tax treaty that is supposed to reduce double taxation, but in reality all it does is reduce the double taxation a little, depending on your specific income and your household income.  It's very complicated and will most likely result in a much higher tax liability in the two countries combined than what you are thinking it will be, meaning that your net income after taxes will be less and that could affect your plans to take care of health insurance once moving to the US which will be very expensive unless you can be covered on your husband's employer plan as his spouse.

 

The second issue is that the HR department of your Canadian employer will have to consider the risk and liability of having an employee living in another country.  Are they willing to cover your expenses if you should get injured while working?  What does the legal department say about it?  During this pandemic and working remotely I had employees who work for me want to do so from all over the world, Turkey, China, Russia....  and my HR department said "no way."  Too much risk and liability.  Canadian companies tend to be more risk-averse than those here in the US, so your assumption that HR and legal will approve is very premature and needs more of an official review and decision.  So don't get your hopes up there either.

 

The third issue that others have commented on already, is the question of whether or not you can work legally in the US on a K-1 or during AOS following marriage on a K-1.  It is a question we see here on VJ a lot, and another risk.  The letter of the law clearly says you need the EAD work authorization.  So why risk something as important as your immigration status or future applications for US citizenship?  Play it safe and don't work until you get the EAD card.  It is also not too late to stop the K-1 process, get married, and start the CR-1 process, which is a better visa in your case as you could work right away legally or find a job in the US which is what I recommend that you do because of the concerns HR will have with your plan.

 

The fourth and most likely most difficult issue is getting legal approval to take your child to the US.  Even though the father may not have legal custody, he still has parental rights and removing the child from his native country will be scrutinized by both Canadian and US officials.  You mentioned that the father does not want his child to move to the US and if he fights that in court, he could win as he still has parental rights.  Does he have visitation rights now?  Does he pay child support in Canada?  Does he have any kind of a relationship with his child?  Those will be questions considered by the court, not only your ability to support your child in the US.  Again, don't assume that all will go well here until you have the court's decision and the father has exhausted all legal appeals available.

 

I'm just trying to put a few doses of reality into your planning so that you don't get blindsided by something and can look down the road at the long term.  I hope everything works out for you eventually, and wish you well!

Edited February 27, 2021 by carmel34