What constitutes work?

[Usui Takumi 1,562]

Phew.... Heated discussion indeed. Thanks for all your answers. Although some replies went a bit beyond the scope of my question, they provided interesting info and I'm taking note. I'll get my fiance to read about the fiscal aspect, because that's when it turns to chinese to me, but I'll know to be careful about what I say about volunteering in the US... which I have done quite a bit. Never thought that could be seen as a problem, on the contrary.

Between this post and the one in the Canadian forum, I have gotten a lot of replies. No consensus! On one hand, some people have done it and assure me it is legal (which I tend to believe, since I dont see how it would be "morally" wrong, from an immigration point of view - but I dont want to do anything that would jeopardise my situation), on the other, some are adamant it is illegal.

So I'll be consulting an attorney and/or accountant and I intend on getting back with detailed information because I am sure there are a lot of people in the same situation. If anybody has a good one to recommend, I would appreciate it. Would you recommend talking to an immigration lawyer in the US or in Canada?

Also, if anybody wants to contribute more info on the subject, at this point, preferably backed up with solid data, don't hesitate!!

It seems fairly simple to me: K-1s are not authorized to perform work without an EAD.

(The tax stuff is all a red herring btw)

The reason is the same reason the B entrants, Canadian tourists, VWP entrants etc can not come to the US and work for their home companies. Being paid outside the US has nothing to do with it. "Work" is limited in the US to citizens, PRs and authorized aliens. Your work would be performed inside the US and is governed by US law.

You can make your attorney call very simple: "I am in K-1 status. May I work inside the US for clients that are in another country?" The answer will be no.

I'm a US citizen. I work for myself. Some of MY clients are out of the country. I'm authorized to work, a K-1 isn't (until they have their EAD).

All the Canadian EI stuff is a red herring too; that is based on Canada's interpretation of what they allow and what they think your status is here.

I don't doubt that people have done it, and not been caught, but that isn't the question you put. Your question is about US law (it's your status in the US you should be worried about protecting), so your quesiton should go to a US immigration attorney.

This part of the CFR can be a starting point. You can also research further what constitutes 'work' in the US (looking at the B-1 limitations is a good start; there is a big difference between "business" and "work").

§ Sec. 214.2(k) Spouses, Fiancees, and Fiances of United States Citizens.

(9) Employment authorization . An alien admitted to the United States as a nonimmigrant under section 101(a)(15)(K) of the Act shall be authorized to work incident to status for the period of authorized stay. K-1/K-2 aliens seeking work authorization must apply, with fee, to the Service for work authorization pursuant to § 274a.12(a)(6) of this chapter. K-3/K-4 aliens must apply to the Service for a document evidencing employment authorization pursuant to § 274a.12(a)(9) of this chapter. Employment authorization documents issued to K-3/K-4 aliens may be renewed only upon a showing that the applicant has an application or petition awaiting approval, equivalent to the showing required for an extension of stay pursuant to § 214.2(k)(10) . (Paragraph (k)(9) added 8/14/01; 66 FR 42587 )

Volunteering has to be done under strict limitations of 'ordinarily' volunteer jobs. Animal shelters, feed the homeless, etc.

I realize that it won't be convenient for your business. I'm aware that you may choose to do whatever you need to do. Just be careful about legitimizing this for *others* to do, leading them to think it is OK.

I know it's not legal to go over the speed limit, but I do it sometimes. I'm aware of the consequences and choose to make the gamble. IMO, the stakes are much higher in immigration.

What you said about B visas isn't true. http://tokyo.usembassy.gov/e/visa/tvisa-niv-b1.html

Specifically:

Telecommuters: Individuals temporarily resident in the United States who will be working from home as computer programmers for foreign based companies may be eligible for B-1 visas provided they satisfy the following conditions:

* The individual is employed by a company outside of the United States

* No remuneration will be received from a U.S. source, other than expenses incidental to the stay

* The work is in an occupation requiring a bachelor's or higher degree in the specific specialty and the individual has that level of education

If you believe that you may qualify for the B-1 visa, you should apply for a visa in order for your qualifications to be evaluated.

If accompanying a spouse who is the beneficiary of a work or student visa, the individual may apply for both the derivative and B-1 visa. When applying for admission into the United States, you should advise the USCIS at the port of entry of your dual intent, that is to say, you are accompanying your spouse, but also intend to continue working for your Japanese employer as a telecommuter.

Note: The length of the visa does not equate the length of stay. When you enter the United States, you will be inspected by an officer of the U.S. Citizenship and Immigration Services. The officer will determine the amount of time you will be permitted to remain in the U.S. Extensions of stay will be approved only for unexpected or compelling humanitarian reasons. The maximum extension period of stay for travellers entering with a B visa is 6 months.

Same thing applies to the VWP - in fact you might look up the Matter of Hira.

Therefore you can't apply the same logic to the K1

Edited October 14, 2009 by Sousuke

[rebeccajo 14]

Conclusions of law: Matter of Hira

.............The one countervailing concept to "employment" under the INA is the statutory term "business." The INA provides for a category of visitor (classified as B-1) "having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business." INA § 101(a)(15)(B). The administrative case law has read the term "business" to apply to visitors who come to the United States to engage in "intercourse of a commercial character." Matter of Hira , 11 I & N Dec. 824, 827 (A.G. 1966). One of the factors used to determine if the temporary visitor is engaging in permissible business activities is whether "the principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country." Id ............

Consistent with the Hira decision, the Customs and Border Protection (CBP) will admit B-1 visitors to the United States where they are "coming to engage in commercial transactions which do not involve gainful employment in the U.S." Inspector's Field Manual § 15.4(B)(1)(B). Consultation with business associates, including attending meetings of the board of directors of the U.S. corporation, is also permitted. Id . Yet, CBP goes further and allows for some work to be performed in the United States, as long as it is contractually limited to commerce that originated overseas. For example, foreign nationals may come to the United States under a B-1 to install, service or repair commercial or industrial equipment purchased from a company outside the United States, but in such cases the contract of sale must require the seller to provide such services. Id .

Reading the regulations, case law and agency manuals together, it is safest to conclude that any foreign national who comes to the United States to engage in activities that go beyond attending business meetings or collecting information to fill orders that will be completed overseas is engaging in unlawful employment in the United States, unless and until such a person is given work authorization by DHS. Companies should be aware that allowing their foreign national associates from overseas to engage in activities in the United States that go beyond "business," within the regulatory meaning of that term, opens the foreign national and the company to sanctions for violating the INA. Where in doubt, the company should sponsor the individual to work in the United States and receive the appropriate documents from DHS.

http://www.metrocorpcounsel.com/current.ph...mp;EntryNo=8243

Edited October 15, 2009 by rebeccajo

[Usui Takumi 1,562]

Yeah, sorry I should have actually posted the matter of Hira instead of just referencing it. Just to give a little more background to what RJ posted, basically a tailor who worked in Hong Kong came to the US to take measurements of customers. The reason the case is considered a landmark is because the Board of Immigration Appeals ruled in favor of the tailor citing the business location being foreign and that the profits were accrued in a foreign country. The case is over 40 years and has helped formed the lawful activities of a B visa like what I posted from the Tokyo Embassy. Btw is there a reason that all of the embassy guides were written by different people? You'd think they'd copy and paste.

[rebeccajo 14]

Yeah, sorry I should have actually posted the matter of Hira instead of just referencing it. Just to give a little more background to what RJ posted, basically a tailor who worked in Hong Kong came to the US to take measurements of customers. The reason the case is considered a landmark is because the Board of Immigration Appeals ruled in favor of the tailor citing the business location being foreign and that the profits were accrued in a foreign country. The case is over 40 years and has helped formed the lawful activities of a B visa like what I posted from the Tokyo Embassy. Btw is there a reason that all of the embassy guides were written by different people? You'd think they'd copy and paste.

Location of the business overseas and profits being taken overseas aren't the only qualifiers for the alien, though.

[Usui Takumi 1,562]

Certainly not, education levels apply as well as the type of work. From what I've read once you start involving US clients it gets very gray. The main point that I would make is that the B visa (and VWP) does not preclude all types of work as was mentioned a couple of posts above.

Edited October 15, 2009 by Sousuke

[rebeccajo 14]

Certainly not, education levels apply as well as the type of work. From what I've read once you start involving US clients it gets very gray. The main point that I would make is that the B visa (and VWP) does not preclude all types of work as was mentioned a couple of posts above.

Not to mention the fact that the entrant has to be returning to their home country. Not something a K1 is usually doing.

I don't believe M said that the B visa precludes all type of work. Did she?

Can you tell me where I can find information that states a VWP entrant may work?

[Usui Takumi 1,562]

Well she said this "The reason is the same reason the B entrants, Canadian tourists, VWP entrants etc can not come to the US and work for their home companies."

If you are from a waiver country you may enter into the US as either tourist or for business. Hence alot of people never need a B1 if they stay less then 3 months.

[meauxna 15]

Certainly not, education levels apply as well as the type of work. From what I've read once you start involving US clients it gets very gray. The main point that I would make is that the B visa (and VWP) does not preclude all types of work as was mentioned a couple of posts above.

lol, well, thanks for the detour!

Sorry I couldn't complete the conversation in a timely manner, and you're right, very very limited types of work are eligible under a B of WT admission; generally *if* the alien reports their activities at entry.

To further clarify my original statement, it's the same reason that people can not come to the US as visitors and write a manuscript, do freelance photography or graphic design 'just because' they mail their work elsewhere.

But this person isn't going to be a B or Canadian admission, she will be specifically admitted as a K-1.

The CFR says

§ Sec. 214.2(k) Spouses, Fiancees, and Fiances of United States Citizens.

(9) Employment authorization . An alien admitted to the United States as a nonimmigrant under section 101(a)(15)(K) of the Act shall be authorized to work incident to status for the period of authorized stay. K-1/K-2 aliens seeking work authorization must apply, with fee, to the Service for work authorization pursuant to § 274a.12(a)(6) of this chapter. K-3/K-4 aliens must apply to the Service for a document evidencing employment authorization pursuant to § 274a.12(a)(9) of this chapter. Employment authorization documents issued to K-3/K-4 aliens may be renewed only upon a showing that the applicant has an application or petition awaiting approval, equivalent to the showing required for an extension of stay pursuant to § 214.2(k)(10) .

Without the EAD, she's not authorized to do any work. Her work would take place inside the US.

I was hoping to see what she had learned from the attorney calls she was going to make.

[Usui Takumi 1,562]

I would assume he/she will say the same thing that my attorney and the officer who had our AOS case said...that it is acceptable to work for an employer over seas.

Edited October 20, 2009 by Sousuke

[Usui Takumi 1,562]

Btw are you sure about photography and the like on a tourist visa?

This is off the Thai consulate for a tourist visa:

Q: I’m a painter and my friend is a photographer. We want to go see the Grand Canyon to take pictures and paint. Can we do this on a tourist visa?

Yes you can, as long as you do not sell any photographs or paintings in the U.S. You may not enter into any contract with a U.S. employer while you are in the U.S., although you are free to bring your photographs and paintings back to Thailand and sell them here.

Edited October 21, 2009 by Sousuke

[kizza 1]

Hi... OP here again...

I have not called the attorney yet as Ive been busy with work and Im still waiting on my NOA2, so I dont feel no big rush. Once I do, I will post all the details so it can benefit others in the same situation.

To further clarify my original statement, it's the same reason that people can not come to the US as visitors and write a manuscript, do freelance photography or graphic design 'just because' they mail their work elsewhere.

Really? So if I was to, say, knit sweaters while Im on a visitors visa, and decide to sell them when I go home, that would be illegal?

Sorry if I missed it, but have you posted a link so I can find out what this is based on?

I have been told by a US immigration attorney that it was legal for me to do work while visiting the US as long as my clients were foreign, I was paid in a foreign currency in a foreign bank.

[Usui Takumi 1,562]

Hi Kizza,

Sorry for all the misinformation in this thread. Your right of course about working as a tourist etc. I've bounced around to multiple embassy pages and they all say the same thing. One would wish they would clarify for the K1 so we didn't have to waste money asking attorneys.

One word of advice about the attorney. Avoid asking someone who does nothing but K1s...they tend to be just paper pushers. I would choose a larger firm that has a diverse background but still has at least one person who specializes in family immigration.