Working after arrival: Online job?

[Pheebs1201 269]

travel.gov says DIRECTLY:

[source]

No use in applying for an EAD since they are not typically issued within the timeframe the the I-94 expires, so you'll just be throwing away the $400+.

[source 1] [source 2]

[source]

[source]

Hope that helps you understand better.

That was an extremely comprehensive response, thank you!

[d3adc0d3 186]

You're welcome, I looked it up some myself, as I'm a freelancer and so is my (now) husband. He wanted to do some data entry or Q&A freelancing, so I dug up as much information as I can, and determined we could not.

Not trying to be rude to TeddyB, but misinformation on VJ can ruin people's lives. I don't want anyone to make the wrong mistake and get nailed for it.

[templeton 120]

I will do my best, thank you for your help!

Thank you for all your help!

I hope that they make more specific laws regarding working remotely in the near future so that others are not left with any doubt as to what they can and cannot do.

I agree, it would make life easier for a lot of people in this day an age. It's really stupid. If they want to make sure you're not taking a job from an American until you file to become one yourself, I understand. But why should Immigration care about employment in another country, as long as it's properly reported? It doesn't make a lot of sense.

The confusion for many of us who have employment restrictions comes into play when one is an actual bonafide employee of a foreign company, doing the same job after immigrating that they were doing before they moved, and getting paid in a foreign currency to a foreign account. If push came to shove, those in that specific situation may have a valid argument that what they are doing has nothing to do with US employment and therefore shouldn't run afoul of any USCIS employment restrictions. There's nothing specifically saying you can't do that, so there's the "grey area". But there's a lot of mights, and maybes, shouldn'ts in there. I hope I don't have to fight that battle.

But as a freelancer for this UK company and not an actual employee, you unfortunately don't have any claim to that "protection". The US government would then consider any work you do on US soil to be self-employment (regardless of what it is, who you do it for, or where the money goes), which is looked at no differently than any other type of US employment from USCIS's point of view. And even though the differences between the two situations are really just semantics, certainly no one who knows anything can argue that US employment isn't allowed as a K-1 until you get the EAD. As I say, consult a lawyer or USCIS. The answer will be the same.

For you're situation it breaks down very simply. The whos, the wheres, and the whats don't matter.

Freelancing once moved to the US = US Self-Employment

US Self-Employment = US Employment

US Employment not allowed until EAD, therefore freelancing not allowed until EAD.

Just because some others have done it without issue doesn't mean they're right, or at least that their situation was the same as yours. The same rules don't apply across the board. Anyone saying it's okay because the US probably doesn't know what's going on at your foreign bank may want to read up on a new little thing that just came out called FACTA.

In the end if you get caught, there may be consequences, there may not. Obviously I can't say for sure. But I'm certainly not going to advise you to go ahead and break the terms of your immigration.

For what it's worth, I've been in both situations in the few short months since moving here in July (on a K-1 as well). I have done hours and hours of research into the subject both before moving and after.

[Teddy B 17,252]

§ Sec. 274a.5 Use of labor through contract. (Section revised effective 11/28/09;74 FR 55725 )

Any person or entity who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after November 6, 1986 (or, with respect to the Commonwealth of the Northern Mariana Islands, after the transition program effective date as defined in 8 CFR 1.1 ), to obtain the labor or services of an alien in the United States knowing that the alien is an unauthorized alien with respect to performing such labor or services, shall be considered to have hired the alien for employment in the United States in violation of section 274A(a)(1)(A) of the Act.

I believe you are misreading the terminology in your quote. The key phrase is in bold. An alien who enters the US with an existing contract does not equate to an alien who is already present in the US and being newly hired or having a contract extended by a foreign company as stated above. I stick by my opinion that working remotely is allowed, whether the person is a freelancer or an employee of a foreign company doesn't matter.

Like I've said previously, there are plenty of VJer's, in all types of different visa situations who have worked remotely without incident. If this were a problem for the people involved there would be plenty of stories and cases easily found regarding this matter. I can't find any and no one has posted any. It's a grey area with no set standard, these types of situations go in favor of the people, not the gov't.

This issue will be simply solved upon the op's entry to the states. No lives will be ruined. All she has to do is ask the POE officer.

[Pheebs1201 269]

This issue will be simply solved upon the op's entry to the states. No lives will be ruined. All she has to do is ask the POE officer.

I will certainly try my best to remember to ask this when the time comes!

[Teddy B 17,252]

I will certainly try my best to remember to ask this when the time comes!

If you don't feel comfortable working remotely in the US, (whether the POE officer says it's ok or not) then by all means don't. I am not attempting to influence you in any way.

[Pheebs1201 269]

If you don't feel comfortable working remotely in the US, (whether the POE officer says it's ok or not) then by all means don't. I am not attempting to influence you in any way.

Oh no I don't feel that you are at all

I just meant, I am still quite early in the process, but when the time comes I will try my best to remember to ask this question at my POE so I can report back and (hopefully) help others in the same situation in the future.

[Teddy B 17,252]

For you're situation it breaks down very simply. The whos, the wheres, and the whats don't matter.

Freelancing once moved to the US = US Self-Employment

US Self-Employment = US Employment

US Employment not allowed until EAD, therefore freelancing not allowed until EAD.

A person who enters the US on a K-1 visa is not considered to have moved to the US upon entry, they are simply in the US in an approved status pending their upcoming marriage and application to adjust status. The person is not considered to have moved to the US until their greencard is approved and they become a legal permanent resident. A person who enters on a K-1 has 90 days to get married or not get married and go back home. There is no legal reason they cannot work remotely.

[d3adc0d3 186]

A person who enters the US on a K-1 visa is not considered to have moved to the US upon entry, they are simply in the US in an approved status pending their upcoming marriage and application to adjust status. The person is not considered to have moved to the US until their greencard is approved and they become a legal permanent resident. A person who enters on a K-1 has 90 days to get married or not get married and go back home. There is no legal reason they cannot work remotely.

Can you cite any legal references which explicitly allow this?

§ Sec. 274a.5 Use of labor through contract. (Section revised effective 11/28/09;74 FR 55725 )

Any person or entity who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after November 6, 1986 (or, with respect to the Commonwealth of the Northern Mariana Islands, after the transition program effective date as defined in 8 CFR 1.1 ), to obtain the labor or services of an alien in the United States knowing that the alien is an unauthorized alien with respect to performing such labor or services, shall be considered to have hired the alien for employment in the United States in violation of section 274A(a)(1)(A) of the Act.

Continuing said contract qualifies as far as most judges would be concerned.

As was linked in section 274A(a)(1)(A):

(a) Making Employment of Unauthorized Aliens Unlawful.-

(1) In general.-It is unlawful for a person or other entity-

(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment, or

(B) (i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b).

(2) Continuing employment.-It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.

...

(4) Use of labor through contract.-For purposes of this section, a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after the date of the enactment of this section, to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragra ph (1)(A).

...

© Documents evidencing employment authorization.-A document described in this subparagraph is an individual's-

(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States); or

(ii) other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.

(D) Documents establishing identity of individual.-A document described in this subparagraph is an individual's-

(i) driver's license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual or such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section; or

(ii) in the case of individuals under 16 years of age or in a State which does not provide for issuance of an identification document (other than a driver's license) referred to in clause (i), documentation of personal identity of such other type as the Attorney General finds, by regulation, provides a reliable means of identification.

...

(E) 4/ Authority to prohibit use of certain documents.- If the Attorney General finds, by regulation, that any document described in subparagraph (B), ©, or (D) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Attorney General may prohibit or place conditions on its use for purposes of this subsection.

(2) Individual attestation of employment authorization.-The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Attorney General to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or an electronic signature . 2a/

...

(2) Authority in investigations.-In conducting investigations and hearings under this subsection-

(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated,

(B) administrative law judges, may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing, and

© 6/ immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).

In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.

...

(h) Miscellaneous Provisions.-

(1) Documentation.-In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.

(2) Preemption.-The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

Edited November 10, 2014 by d3adc0d3

[Teddy B 17,252]

Can you cite any legal references which explicitly allow this?

Continuing said contract qualifies as far as most judges would be concerned.

As was linked in section 274A(a)(1)(A):

The burden would be on you to cite any legal references that explicity deny it. To my knowledge, it doesn't exist. If it doesn't exist the benefit of the doubt goes to the people. I've linked to other threads here on VJ that show this is done on a regular basis and I've also had first hand experience with this. Do you have anything that shows otherwise? If it is illegal, there should be plenty of examples to find.

Your references are to those of an unemployed alien already in the US who is not authorized for employment. They do not state anything about an alien entering the US in an authorized status working remotely. An unemployed alien who enters the states cannot engage in new work until authorized to do so, that would be considered taking a job away from a USC.

Edited November 10, 2014 by Teddy B

[d3adc0d3 186]

The burden would be on you to cite any legal references that explicity deny it. To my knowledge, it doesn't exist. If it doesn't exist the benefit of the doubt goes to the people. I've linked to other threads here on VJ that show this is done on a regular basis and I've also had first hand experience with this. Do you have anything that shows otherwise? If it is illegal, there should be plenty of examples to find.

Your references are to those of an unemployed alien already in the US who is not authorized for employment. They do not state anything about an alien entering the US in an authorized status working remotely. An unemployed alien who enters the states cannot engage in new work until authorized to do so, that would be considered taking a job away from a USC.

I thought I covered that pretty clearly:

(a) Making Employment of Unauthorized Aliens Unlawful.-\

(2) Continuing employment.-It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.

...

(4) Use of labor through contract.-For purposes of this section, a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after the date of the enactment of this section, to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragra ph (1)(A).

...

© Documents evidencing employment authorization.-A document described in this subparagraph is an individual's-

(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States);

...

(E) 4/ Authority to prohibit use of certain documents.- If the Attorney General finds, by regulation, that any document described in subparagraph (B), ©, or (D) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Attorney General may prohibit or place conditions on its use for purposes of this subsection.

(2) Individual attestation of employment authorization.-The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Attorney General to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or an electronic signature . 2a/

...

(2) Authority in investigations.-In conducting investigations and hearings under this subsection-

(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated

...

(h) Miscellaneous Provisions.-

(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

While this is aimed against the employer, it makes it pretty clear that it is illegal to work without an EAD. Even the SSA office makes it clear:

M 10211.420 Employment Authorization for Non-immigrants A. Policy for non-immigrant employment authorization

The Department of Homeland Security (DHS) determines whether a non-immigrant in the U.S.

• may be employed;

• may be self-employed; or

• may not work.

Some non-immigrants have employment authorization by virtue of their DHS-assigned class of admission (COA or alien classification) while other non-immigrants may have employment authorization but only with specific employers. See RM 10211.420G.1. in this section.

Some non-immigrants must apply to DHS for employment authorization. See RM 10211.420G.2. in this section.

Some non-immigrants may not work and cannot apply for employment authorization. See RM 10211.420G.3. in this section.

It is important to distinguish non-immigrants with employment authorization from non-immigrants without employment authorization and know what document(s) establish employment authorization.

DO NOT process an employment authorized Social Security number (SSN) application for a non-immigrant unless the alien submits the appropriate evidence authorizing employment.

IMPORTANT: Since a non-immigrant’s status can change, the most recently issued DHS document supersedes all previously issued DHS documents, for enumeration purposes. See RM 10211.510.

EXAMPLE: An alien with an I-94 that does not allow for work applies to DHS for a different status. DHS approves the new status and issues the alien an Employment Authorization Document (EAD, I-766). The alien applies for an SSN card and submits both the I-94 and the new EAD. Neither document is expired. Since the EAD is the more recently issued evidence, the EAD is the alien’s current lawful alien status document. Do not consider the I-94 in making the lawful alien status or employment authorization decision or for verifying the alien’s status.

See Also:

• RM 10211.001B.30., definition of non-immigrant.

• RM 10211.600, SSN requests from aliens who have no employment authorization.

[Teddy B 17,252]

I thought I covered that pretty clearly:

While this is aimed against the employer, it makes it pretty clear that it is illegal to work without an EAD. Even the SSA office makes it clear:

Your references are for illegal employment of an unauthorized alien in the US. They do not apply in this case. You've got your definitions mixed up.

[Boiler 45,661]

Your references are for illegal employment of an unauthorized alien in the US. They do not apply in this case. You've got your definitions mixed up.

Interesting

Soas they are doing jobs Americans will not do then they are working legally.

[d3adc0d3 186]

Your references are for illegal employment of an unauthorized alien in the US. They do not apply in this case. You've got your definitions mixed up.

(h) Miscellaneous Provisions.-

(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B)authorized to be so employed by this Act or by the Attorney General.

i.e. an alien who is not an LPR or one who does not hold an EAD or is authorized to work by nature of their visa.

Thus a K1 visa holder, not being an LPR, not having the permission to work by virtue of the nature of the visa (e.g. a work based visa) and not yet in possession of an EAD, would be considered an unauthorized alien according to the provision in (h)(3) of Sec. 274A. [8 U.S.C. 1324a].

Edited November 10, 2014 by d3adc0d3

[Teddy B 17,252]

Interesting

Soas they are doing jobs Americans will not do then they are working legally.

I don't buy that. Illegals take jobs away from Americans, plain and simple.