Authorization for working prior to receiving EAD and AOS

[Usui Takumi 1,562]

Was that an insult?

Anyway back to h) It says "The term employment means any service or labor performed by an employee for an employer within the United States"

However it seems like you are reading it like this: "The term employment means any service or labor performed within the United States by an employee for employer"

OR like this: "The term employment means any service or labor performed by an employee within the United States for an employer"

Instead there is a particular order placing within the United States after all three. Isn't it dangerous to pull a part a sentence and lose the context within?

The only way other way I can think of at the moment is if it was listed in list format with commas as such "The term employment means any service or labor performed by an employee, for an employer, and within the United States.

Secondly,

Regarding services and the previous section I'll apply my field of Architecture/Planning. To perform services in a state you must have a license within that state. If my design services are being used in Texas and I live in California I don't need a license for California because that is not where I perform my services I need a Texas license.

Edited November 10, 2009 by Sousuke

[Usui Takumi 1,562]

Taking the idea of services one step further there is a way that yes you could be breaking the law if you perform a service in the United States. I'll use my field as an example. If I perform design services on a US building while in the US for any employer then that's illegal without EAD. If I perform design services in the UK that is legal.

[Usui Takumi 1,562]

From here I think I will officially step away from this thread. You may continue to dispute the different facts and the interpretation of documents etc. I don't care to argue any longer. As per the advice of a few PMs I've received, it seems people get most of the points myself and others have made and that is what I really care about not convincing you in particular. Feel free to continue in this thread and others but I will no longer address your arguments and instead I will focus on the original posters questions which is more important. Whilst VJ is not necessarily a forum by committee, my hope is that on this particular topic new users will take the majority opinion.

I thank you RebeccaJo for this discussion as it was entertaining and provided an opportunity to read the entire section 274.

[visacheck 3]

Hello, everybody:

I came to America on October 6 and got married on October 9. I still didn't apply for the AOS and the employment authorization.

My question is: am I allowed to work as a freelance translator (not being employed with any employer but working from my home online) so that my husband would pay the taxes on the income I'd make (before the adjustment of status and receiving the employment authorization)?

I've got already my Social Security card and it says that it is "valid for work only with DHS authorization".

Thank you very much in advance.

the answer is NO, and YES. It depends how you do it. I recently addressed just this exact question with a offical of the USCIS. You CANNOT work in the USA until you have an EAD or Green Card. Period! However if you previously had a foreign job in Russia, as a translator or whatever, and you continue that job working for a Russian employer, paid in Russian currency to a Russian bank account...then YES, they will consider that employment in Russia...not the USA. You can do this even if it is a new job for a Russian employer.

There is one other way. Create a business (which you CAN do) even a partnership with your husband, Payments are made to the the business NOT to you. Your husband can withdraw or transfer funds from the business. You can VOLUNTEER to work for the business.

Im confused. A K1 non immigrant visa holder can create a business with USC husband but should be working as a volunteer because she is not allowed to work or get paid for her services until she gets her EAD? Am I correct on this?

You are advising the OP to do volunteer work for the business and telling them that the husband can withdraw or transfer funds from the business. Wouldnt that also mean she is getting paid for her VOLUNTEER work?!

Wouldnt a business partner be considered as co-owner of the business? If she is a co-owner/business partner, payment to the business is payment to the owners.

Im not sure you can consider working for your own business a volunteer work because the company gets paid, the owner gets paid.

Business owners are not necessarliy employees. income from a business is not employment. Owners are not volunteers and are not required to be paid in any way. They can even LOSE money! Employees cannot lose money for being employed.

Anyone can buy into or own a business in the US. they can open a business as "Jeff Smith Dba Visa Translators" and open a bank account to that affect. Clients write checks to "Visa Translators" and the checks are deposited in to the business account. Jeff Smith, then writes himself a check, repsresenting a return on his investment, a dividend, and deposits it in his joint account with his wife. Problem? His wife, legal co-owner of the business can do translations, paint pictures, polish her nails or anything she else wants. She is NOT being paid for work and no one can ever show she is. She is co-owner of a business, she is not an employee, she does not get wages or salary for work.

OR they can just leave the funds in the company account for later dispersal.

Return on investment is Income.

The wife is not being paid for work BY the company she owns or co-owns but she is being paid for her translation services by the customer. Yes she is not employed but she is working and getting paid for it. Even if payments are deposited to the business account, she would still benefit from it because it would be transfered to their joint account.

Or even if they leave the funds in the company account for later dispersal, it would still be considered income for her services when she was technically not allowed to work without EAD.

The wife not being employed does not mean she is not working, not getting salary for work does not mean she is not being paid for work.

[rebeccajo 14]

From here I think I will officially step away from this thread. You may continue to dispute the different facts and the interpretation of documents etc. I don't care to argue any longer. As per the advice of a few PMs I've received, it seems people get most of the points myself and others have made and that is what I really care about not convincing you in particular. Feel free to continue in this thread and others but I will no longer address your arguments and instead I will focus on the original posters questions which is more important. Whilst VJ is not necessarily a forum by committee, my hope is that on this particular topic new users will take the majority opinion.

I thank you RebeccaJo for this discussion as it was entertaining and provided an opportunity to read the entire section 274.

Glad to have been of service.

Oh by the way - next time you see your friends who advise you that a K1 working in the US without authorization for a foreign company is OK, ask them if they are basing that logic on the code we've been discussing OR on the sections of the CFR which allow for adjustment of status of an alien via marriage to a USC and the fact that illegal work is 'forgiven' if the adjustment is approved. Ask them if they are thinking more along the lines of the fact that working for a foreign company doesn't involve the filing of an I9, which leaves a gap in the paper trail.

I'm glad you've been assuaged by your PM committee of cheerleaders. That still doesn't make it OK for a K1 to work in the US without a fee service document. Little things that can occur later if we do this and that doesn't make an action okay while the act is being committed.

But it's encouraging to know you've now stepped away from trying to convince people that it is.

Edited November 10, 2009 by rebeccajo

[Usui Takumi 1,562]

But it's encouraging to know you've now stepped away from trying to convince people that it is.

I suggest you reread my last post as you obviously missed a few words that are "within".

[rebeccajo 14]

But it's encouraging to know you've now stepped away from trying to convince people that it is.

I suggest you reread my last post as you obviously missed a few words that are "within".

I thought you were done?

[Kathryn41 3,205]

I am going to suggest that you are both 'done'. This has devolved to nearly pointless exchange of 'he said- she said'. Until we get a hard and fast statement from USCIS that categorically states that it is illegal for a legal immigrant while waiting for an EAD to work for a former employer who is not in the US doing a job that is not being done by nor is available to a US citizen or to accept employment from a non-US employer outside of the US doing work that does not impact the US or other unequivocal statements - and they do NOT exist currently - it is best to agree to disagree. It is worth noting, however, the the Affidavit of Support does allow for the immigrant to self-sponsor if their source of income will continue unchanged after they arrive in the US/become a permanent resident.

Regardless, it is time for both of you to let this discussion go and accept that you disagree.

[rebeccajo 14]

I am going to suggest that you are both 'done'. This has devolved to nearly pointless exchange of 'he said- she said'. Until we get a hard and fast statement from USCIS that categorically states that it is illegal for a legal immigrant while waiting for an EAD to work for a former employer who is not in the US doing a job that is not being done by nor is available to a US citizen or to accept employment from a non-US employer outside of the US doing work that does not impact the US or other unequivocal statements - and they do NOT exist currently - it is best to agree to disagree. It is worth noting, however, the the Affidavit of Support does allow for the immigrant to self-sponsor if their source of income will continue unchanged after they arrive in the US/become a permanent resident.

Regardless, it is time for both of you to let this discussion go and accept that you disagree.

Of course the affidavit of support allows for the income of an immigrant to count towards the household total.

If the income is from legally authorized employment.

Kathryn - This is not a case of 'agreeing to disagree'. As you say, there is nothing which states such employment is allowed. What we have instead is specific language in the CFR which states a K1 requires a fee document from the Service to perform work in the US. The CFR defines 'employer' but it doesn't define where the company is headquartered.

It's important to note that reading the law involves understanding the parties and actions being discussed. That is why definitions are often discussed at the beginning of codified law. If you read 8 CFR 274 it specifically defines an employee as one who performs work in the United States AND it specifically defines an employer. The code DOES NOT designate where that employer holds it 'charter'. It doesn't give a 'pass' to a company outside the US. Why would it? The US Government can't regulate businesses outside of it's borders. It can however attempt to control work practices within them.

Here's where it goes with me - and this part is strictly my opinion. The government defines what is legal and what is not insofar as the path of immigration is concerned. But anybody who has been around Vj long enough can tell you - there are ways to stretch the boundaries.

Now - most of us here are bringing a loved one into the US. In fact, the person we are helping to immigrate is supposed to be that one person most near and dear to us - our spouse. Maybe I'm just paranoid or maybe I don't trust the powers that be or maybe I'm a hopeless romantic - I'm not sure which it is. But IN MY OPINION, I never wanted to do anything which in anyway compromised my husband's journey.

We filed for a K1; we filed for AOS within 90 days of his entry in order to completely protect his status; we never even traveled on AP because I don't like the fact that a parolee has a different 'status' than a K1 entrant. I was and remain determined that there will never be ANYTHING that we do during my husband's journey which compromises his status. We don't even partake of certain 'recreational activities' which we might otherwise enjoy because - well it's only legal for medicinal purposes in the US .

I don't get why anyone would play with fire regarding the legal status of their foreign-born husband or wife, especially when they are walking the edges of what we KNOW is legal. And I don't get that because it's MARRIAGE and husband and wife are supposed to look out for each other.

That's my sentiment. The rest of my opinion I rest on the code. It's black and white. Not gray.

[Kathryn41 3,205]

I am not debating this issue with you. You have stated your 'sentiment' as you phrase it. Others have stated theirs. There is no definitive statement from USCIS and until there is there will be differing interpretations, whether you agree to disagree or not. It is time to let this issue go. It has been debated without resolution ad infinitum.

Edited November 10, 2009 by Kathryn41

[rebeccajo 14]

I am not debating this issue with you. You have stated your 'sentiment' as you phrase it. Others have stated theirs. There is no definitive statement from USCIS and until there is there will be differing interpretations, whether you agree to disagree or not. It is time to let this issue go. It has been debated without resolution ad infinitum.

So I shall take it to Ewok then.

If you are going to mod these forums, you need to understand what is within the bounds of the law and what is not. Erroneous information and opinions which push the edge of legalities is not what the website is designed for.

Edited November 10, 2009 by rebeccajo

[Trompe le Monde 1,107]

I knew this issue had been addressed in the UK forum awhile back and this is what one (respected) member found about this issue when asking the USCIS

http://www.visajourney.com/forums/index.ph...t&p=2138750

Both myself and another Canadian (and I'm sure many others whom I am unaware of) have both had it confirmed by officers working for USCIS that it is perfectly legal. The INA (Immigration and Nationality Act) INA: ACT 274A outlines the law pertaining to US companies or individuals employing non-authorized aliens. It's specific in that there has to be a US employer in the equation in order for it to be an unlawful act.

[rebeccajo 14]

I knew this issue had been addressed in the UK forum awhile back and this is what one (respected) member found about this issue when asking the USCIS

http://www.visajourney.com/forums/index.ph...t&p=2138750

Both myself and another Canadian (and I'm sure many others whom I am unaware of) have both had it confirmed by officers working for USCIS that it is perfectly legal. The INA (Immigration and Nationality Act) INA: ACT 274A outlines the law pertaining to US companies or individuals employing non-authorized aliens. It's specific in that there has to be a US employer in the equation in order for it to be an unlawful act.

Link proves nothing, Robin. Indeed if you follow it to fruition, you come to britishexpats.com. There you will find the attorney referenced by Boiler. Anybody who wants to SERIOUSLY learn more about this issue (rather than just postulating that they already have the answer) should really spend some time on BE and other forums.

I do thank you for the link though. I get a sense for why the Moderators (and there were more than ONE of them involved in this thread) got so - shall we say tense? - about the thread.

Edited November 12, 2009 by rebeccajo

[Trompe le Monde 1,107]

you can say "tense" but I'm reading their response as pretty calm and fair-minded

care to provide those links? I think it could help people understand the fuller picture...but the fact is that both Gary and Krikit have consulted with the USCIS about this and got a different response from your non-grey view of how this issue works.

[rebeccajo 14]

you can say "tense" but I'm reading their response as pretty calm and fair-minded

care to provide those links? I think it could help people understand the fuller picture...but the fact is that both Gary and Krikit have consulted with the USCIS about this and got a different response from your non-grey view of how this issue works.

Oh, the good stuff wasn't in the thread for public viewing!

I pointed readers in the direction of other opinions. There are loads of threads about it. Easily found if one really wants to learn.