Remote job from home country while adjusting status

[UnaMexicana 153]

Well, this is a trick question, isn't it? You need to tell the truth and nothing but the truth.

Anyone who says otherwise is breaking the rules of this site.

 

As a K-1 visa holder, you can work in the U.S. only if, after entering, you apply for and receive a work permit (EAD). Your employer may not care, and may even authorize it--but this is not about them, but about you and the U.S. government and its policies. You would have known this by simply googling "can i work on k1 visa for foreign company?" before you came to the U.S. on your K1.

 

Not being a smart a... just letting you know how it is.

 

UnaMexicana

[Peot 134]

On 10/24/2021 at 1:03 AM, Ayrton said:

I don't think you realize that the problem isn't if you're gonna get your Greencard or not after doing unauthorized work. You will get your Greencard, there's no questions about that, because unauthorized work is forgiven for spouses of USC applying for adjustment of status. But this doesn't mean that the work you're doing is authorized and legal. And there might be other consequences for it.

 

Immigration is only one leg of the "US government". Taxes are another one. Foreign entities that employs a US person, which you were, is supposed to get an EIN and send all your information to IRS. Depending on the country, they are even supposed to collect social security and medicare.

 

So remember, even though immigration doesn't care about your unauthorized work for a foreign company, other US entities might come to haunt you later on.

 

 

I noted that receiving an EAD is the best course of action, but I don't quite agree with your logic on this one.

 

Before the adjustment of status (which is the time you would need an EAD), you are not a US person. You are actually only "lawful status", but technically a non-resident alien. During this time, the applicant generally should maintain their foreign residence, or will retain the ability to reside in their foreign country.

 

When the funds are paid in foreign denominations into a foreign bank account connected to a non-resident of the US who maintains a foreign residence and ultimately pays foreign taxes, it would be difficult to convince this person or the company employing them that they are in fact a "US person". No more so than someone who enters the US on a 6 month visitor visa and continues to do remote work from their hotel room.

 

With all of that said I think it would be a very different situation with tax implications if you did not maintain a foreign address, or were being paid into a US bank account, were paid in US funds, or employed by a US company. Likewise there could be legal implications if you were employed by a US company BEFORE obtaining a green card or EAD with the expectation that you would eventually get this - that is entirely working without authorization and should come back to bite you.

 

The short of it is that if every aspect of the transaction is in a foreign country except for the fact that your desk chair is in the US - this makes little sense to require an EAD. 

[Ayrton 965]

17 minutes ago, Peot said:

I noted that receiving an EAD is the best course of action, but I don't quite agree with your logic on this one.

 

Before the adjustment of status (which is the time you would need an EAD), you are not a US person. You are actually only "lawful status", but technically a non-resident alien. During this time, the applicant generally should maintain their foreign residence, or will retain the ability to reside in their foreign country.

 

When the funds are paid in foreign denominations into a foreign bank account connected to a non-resident of the US who maintains a foreign residence and ultimately pays foreign taxes, it would be difficult to convince this person or the company employing them that they are in fact a "US person". No more so than someone who enters the US on a 6 month visitor visa and continues to do remote work from their hotel room.

 

With all of that said I think it would be a very different situation with tax implications if you did not maintain a foreign address, or were being paid into a US bank account, were paid in US funds, or employed by a US company. Likewise there could be legal implications if you were employed by a US company BEFORE obtaining a green card or EAD with the expectation that you would eventually get this - that is entirely working without authorization and should come back to bite you.

 

The short of it is that if every aspect of the transaction is in a foreign country except for the fact that your desk chair is in the US - this makes little sense to require an EAD. 

That's not how it works. Remember that we're talking about 2 different things here. Immigration (USCIS) and Taxes (IRS). They are different government entities and have different rules and definitions for these common terms.

 

Resident and non-resident aliens are defined by the IRS and doesn't necessarily depend on your immigration status. You can find the definitions here: https://www.irs.gov/taxtopics/tc851

 

You can see that you can actually be a resident alien for tax purposes without even being a GC holder by just meeting the substantial presence test or electing to be treated as one on the 1st year. A tourist that overstays their visa here is considered a resident for tax purposes after meeting the presence test and must file taxes as a resident alien. For K1 visa holders, where most of the couples wants to file MFJ for the 1st year because of the tax benefits, they need to be elected as resident for the whole year when presence test is not met.

 

The moment you move to a different county (immigration intent), you are changing you primary residency. That's why some immigrants lose their public benefits as soon as they land in another country with immigrant intent (k1 visa holders moving from Canada from example, they cannot use public health on a later visit, it doesn't matter when they actually became a LPR).

 

[Ayrton 965]

46 minutes ago, Peot said:

I noted that receiving an EAD is the best course of action, but I don't quite agree with your logic on this one.

 

Before the adjustment of status (which is the time you would need an EAD), you are not a US person. You are actually only "lawful status", but technically a non-resident alien. During this time, the applicant generally should maintain their foreign residence, or will retain the ability to reside in their foreign country.

 

When the funds are paid in foreign denominations into a foreign bank account connected to a non-resident of the US who maintains a foreign residence and ultimately pays foreign taxes, it would be difficult to convince this person or the company employing them that they are in fact a "US person". No more so than someone who enters the US on a 6 month visitor visa and continues to do remote work from their hotel room.

 

With all of that said I think it would be a very different situation with tax implications if you did not maintain a foreign address, or were being paid into a US bank account, were paid in US funds, or employed by a US company. Likewise there could be legal implications if you were employed by a US company BEFORE obtaining a green card or EAD with the expectation that you would eventually get this - that is entirely working without authorization and should come back to bite you.

 

The short of it is that if every aspect of the transaction is in a foreign country except for the fact that your desk chair is in the US - this makes little sense to require an EAD. 

And here's the definition for US Person that I used: https://www.irs.gov/individuals/international-taxpayers/classification-of-taxpayers-for-us-tax-purposes