Future K-1 AOS process, currently employed, self-employed after, same UK company

[braem 0]

I'm coming up to my visa interview at the US Embassy in London, and expect to get my K-1 soon after that. I have some questions about my specific situation to do with Adjustment of Status as a K-1 holder after I move. I'm aware that I-864 allows you to use the foreign spouse's income under certain conditions, however I'm not sure if they'll apply to me.

I'm currently a regular UK employee for a UK company, and my plan is to stop being an employee, move to the US, set up a US bank account, etc., then work for them on a freelance basis. That is, I'll get an SSN, EAD, form an LLC, and invoice the UK company for work done and they'll pay me fairly regular income as part of contract work.

1. If the Adjustment of Status interview is too soon after starting this work, I might not have lived with my spouse for at least 6 months. Is that an issue for counting my (foreign immigrant spouse) income in I-864?
   
2. If my AOS process requires me to state income and I'm doing freelance work for the UK company, but have only worked for them for a few weeks / months, would they take that as satisfactory proof of future income?
   
3. Is this self-employed income actually valid for I-864 purposes, given that the source IS the same before and after AOS? (I can get a letter stating intent to continue working for them indefinitely on a freelance basis.)
   

I-864 instructions don't actually mention a 6 month minimum requirement, and it doesn't specify whether you must remain an employee for the duration of the move, before and after AOS. Yet, I'm not technically allowed to work in the US without an EAD, so I can't remain an employee and do work for them through the AOS process. In my view, my employment for them terminates and then I start working for them afresh, so it is indeed the same source. (EAD requirements are definitely still in effect in this situation, am I right? Perhaps I'm missing something.)

[braem 0]

Related:

If my income source changes (either self-employed but doing other work, or get hired by a US company), does that affect my contribution to the sponsorship for I-864, even if my income would still exceed the minimum required amount?

[Nich-Nick 3,354]

I don't have your answers, but you do know that I-864 gets mailed in with the AOS/EAD application. So you can't be stopped working for 3-4 months and say you are earning that money on something you mailed prior to that time off. And you have a 50% chance or greater of not even having an interview.

Does your wife not earn enough without your income? Or are you just trying to top it well beyond enough? I understand what you are asking but I think the question is ---Is it okay to work for a foreign company from the US prior to having EAD.

[braem 0]

I don't have your answers, but you do know that I-864 gets mailed in with the AOS/EAD application. So you can't be stopped working for 3-4 months and say you are earning that money on something you mailed prior to that time off. And you have a 50% chance or greater of not even having an interview.

Does your wife not earn enough without your income? Or are you just trying to top it well beyond enough? I understand what you are asking but I think the question is ---Is it okay to work for a foreign company from the US prior to having EAD.

She won't earn enough without that income, no. We can use her family as a sponsor (which we did we I-134), but it would be good to simply rely on my own income since it absolutely will be sufficient for a 2-person household.

I-864 allows foreign spouse income to count provided that it will continue to come from the same source after AOS. That much we know. So if they also say you need an EAD, surely it is a given that you will not be working for 3-4 months? Or are you indeed allowed to work for a foreign company in the interim, WITHOUT an EAD? Perhaps without any business entity like an LLC, and just a regular sole proprietorship (then later just set up the LLC)? If that's allowed, then presumably I could: stop being an employee, move to the US, immediately start doing freelance work as a sole proprietorship (without an EAD?), then file for AOS with the understanding that my income is both present before AOS and present after EOS.

I guess it's very confusing that I-864 allows this "income source must be the same before and after AOS" situation, but the EAD is stated as required...

[braem 0]

I don't have your answers, but you do know that I-864 gets mailed in with the AOS/EAD application. So you can't be stopped working for 3-4 months and say you are earning that money on something you mailed prior to that time off.

Previous questions such as http://www.visajourney.com/forums/topic/384635-using-foreign-spouses-income-on-i-864/ have said that a letter stating the intent to continue employment is enough. Perhaps that's sufficient? A letter of intent to the effect of "this person will be working for us the foreseeable future at a rate of $X/day", maybe?

If I-864 is mailed in with the AOS/EAD application, then UK employment will have only recently terminated, then when the EAD arrives after ~100 days, work would continue from the same source as before (the UK company).

That still doesn't explain whether you need an EAD at all, but I suspect an EAD is very much required for any work done whatsoever inside of the US.

[braem 0]

I suspect the crux of the matter is that I-864 is for use with different types of application.

If it's being used in a situation where a non-immigrant already has legal work (say, with an EAD) while present in the US, then the (legal) work before adjusting status can potentially continue throughout the process of filing I-864 and thereafter. The intending immigrant's income CAN then count towards the required minimum.

If it's being used in a K-1 situation, then there's no point before filing for AOS where the K-1 holder can legally work, because there's no EAD. The intending immigrant's income there CANNOT count towards the required minimum.

Does that seem right?

[Nich-Nick 3,354]

She won't earn enough without that income, no. We can use her family as a sponsor (which we did we I-134), but it would be good to simply rely on my own income since it absolutely will be sufficient for a 2-person household.

I-864 allows foreign spouse income to count provided that it will continue to come from the same source after AOS. That much we know. So if they also say you need an EAD, surely it is a given that you will not be working for 3-4 months? Or are you indeed allowed to work for a foreign company in the interim, WITHOUT an EAD? Perhaps without any business entity like an LLC, and just a regular sole proprietorship (then later just set up the LLC)? If that's allowed, then presumably I could: stop being an employee, move to the US, immediately start doing freelance work as a sole proprietorship (without an EAD?), then file for AOS with the understanding that my income is both present before AOS and present after EOS.

I guess it's very confusing that I-864 allows this "income source must be the same before and after AOS" situation, but the EAD is stated as required...

Apparently this is a gray area with no answer in immigration law.

Interesting debate http://www.nationofimmigrators.com/employment-based-immigration/immigration-lawyers-arguing-can-i-work-from-home-for-a-foreign-employer/

http://www.justanswer.com/immigration-law/7ll6j-allowed-self-employed-us-freelance-basis.html

I think I would continue to work in the gray area and stay under the radar. Just a personal comment and not advice in anyway. BUT you want to declare that work and income toward an affidavit of support which is a different ball game. It would be very interesting for you to try it since there is no clear cut law on the books apparently. Maybe easier for you to jump through the hoops by having a joint sponsor if the parents are willing. This is one of the reasons why a K1 visa sucks.

As far as the confusion you mention in the wording of "if the employment will contine". That would be like a CR1 spouse visa that allows you to work on day 1 in the US, or maybe a pension would continue, or your trust fund. We have a UK fiancee on here whose Brit creates apps for I-phones and Androids. They continue to sell and good money comes in whether he works on a new one in the US or just watches TV. London allowed that for the I-134. Not sure what they have done for the I-864.

[Darnell 8,478]

London does give some leeway on the beneficiary's income, to actually utilize it on the I-134,

but must be prepared with documentation for prior years stuff and current year stuff (showing going-forward plan) .

[braem 0]

London does give some leeway on the beneficiary's income, to actually utilize it on the I-134,

but must be prepared with documentation for prior years stuff and current year stuff (showing going-forward plan) .

This is about I-864 as part of AOS, after moving to the US, not for the I-134 as part of actually getting the K-1 at the Embassy.

[braem 0]

Apparently this is a gray area with no answer in immigration law.

Interesting debate http://www.nationofimmigrators.com/employment-based-immigration/immigration-lawyers-arguing-can-i-work-from-home-for-a-foreign-employer/

http://www.justanswer.com/immigration-law/7ll6j-allowed-self-employed-us-freelance-basis.html

I think I would continue to work in the gray area and stay under the radar. Just a personal comment and not advice in anyway. BUT you want to declare that work and income toward an affidavit of support which is a different ball game. It would be very interesting for you to try it since there is no clear cut law on the books apparently. Maybe easier for you to jump through the hoops by having a joint sponsor if the parents are willing. This is one of the reasons why a K1 visa sucks.

Interesting that it's a current unresolved legal matter! I'm not a fan of grey areas, though, so I'll stick to ignoring any possible income I might get and go with a regular joint sponsor.

Thanks for finding those two links. Hopefully this will be of use to other people if they find this thread.

[Nich-Nick 3,354]

London does give some leeway on the beneficiary's income, to actually utilize it on the I-134,

but must be prepared with documentation for prior years stuff and current year stuff (showing going-forward plan) .

I don't thinks so. They will take liquid assets of the beneficiary with no I -134 at all , but won't give credit for a promise of future US employment if that's what you mean. The apps guy had a steady stream of income he showed that would continue from his past efforts.