Working for UK company while waiting for EAD...

[Lozalex 2]

Hi,

I am currently waiting for my K1 visa interview. Once approved I will be moving to San Diego.

In a conversation with my boss I advised that I am unable to work in the U.S until my EAD is approved and that it can take up to 6 months. My employer advised that I could still work for the company remotely while I am waiting for my EAD to be approved.

I would still be employed by a UK company, paying UK taxes and getting paid into my UK bank account. I'm just worried if this will cause me any problems? I don't want to get this far with my visa and then get myself in any trouble.

Can somebody advise if this would be breaking any rules, or if I will be fine to continue to work online for my UK based company from the U.S.

Thanks,

Lauren

[mollenne 11]

My fiance is currently in the same situation: he lives in Israel and we work for the same company (though my branch is in the US) and he could do his job remotely if he needed to. We consulted with a lawyer about our K1 process (for other reasons), but this was one of the questions we asked her: is it possible to work remotely while waiting for the EAD once living within the US?

She strongly advised against this, as this is technically working on US soil, and working in the US without a work permit is working illegally. She said it doesn't matter if you're getting paid or even if it's volunteer (for example, if your employer and you came up with an agreement for them to give you a "signing bonus" to repay you for "free work"/volunteer work you did while waiting on your permit), work is work. If a USCIS officer was in the same room as you, you would be in major trouble.

That being said, if your employer can give you a written job offer when you file for the EAD, I believe you can file for an expedite request (and submit the written job offer), and they are more likely to grant it for you.

The whole thing boils down to the fact that if you're living/working on US soil, you should be paying US taxes, plain and simple. If you can make it work without being caught, that's on you, but if you are caught, it can be a major issue, which is why she really emphasized it so heavily with us.

[acgmph 42]

Hi Lauren,

TL;DR: you can until the end of this year, you can't starting with Jan 1st.

I am in the same boat. I looked up the issue and found that there is no clear, black and white, yes or no answer to this. The answer is, depending on which lawyer you're talking to, yes or no. Immigration law in the US didn't catch up with the times yet. However, considering both arguments, I found that the NO argument is more likely because it has to do with physical presence and taxes.

When you submit your US taxes you will have to submit for 2555 or 2555EZ, Foreign Earned Income Exclusion, for the part of your income which is not made and paid in the US. But because you will fail to pass the Bona Fide Residence Test and the Physical Presence Test, you cannot claim that income as foreign earned, so it would be US-earned income... in which case you would be in violation of the INA, as you are not allowed to work until you have the EAD/green card/citizenship.

You would only pass either of those two tests for this tax year (2015), come 2016 you will not be able to pass either test and therefore you would start paying taxes in the US. Once you do that... and you don't have an EAD... then that is not allowed.

Good luck!

[Lozalex 2]

My fiance is currently in the same situation: he lives in Israel and we work for the same company (though my branch is in the US) and he could do his job remotely if he needed to. We consulted with a lawyer about our K1 process (for other reasons), but this was one of the questions we asked her: is it possible to work remotely while waiting for the EAD once living within the US?

She strongly advised against this, as this is technically working on US soil, and working in the US without a work permit is working illegally. She said it doesn't matter if you're getting paid or even if it's volunteer (for example, if your employer and you came up with an agreement for them to give you a "signing bonus" to repay you for "free work"/volunteer work you did while waiting on your permit), work is work. If a USCIS officer was in the same room as you, you would be in major trouble.

That being said, if your employer can give you a written job offer when you file for the EAD, I believe you can file for an expedite request (and submit the written job offer), and they are more likely to grant it for you.

The whole thing boils down to the fact that if you're living/working on US soil, you should be paying US taxes, plain and simple. If you can make it work without being caught, that's on you, but if you are caught, it can be a major issue, which is why she really emphasized it so heavily with us.

Hi Mollenne,

Thanks so much for your quick reply.

It's sad that the EAD process doesn't go through faster. It just seems unfair to be expected to live off my fiance for such a long time.

[Pitaya 2,577]

~Moved from Fam.-based AOS to Working & Traveling During US Immigration Forum~

~Similar topics are often discussed at this forum~

[Nich-Nick 3,354]

Hi Lauren,

TL;DR: you can until the end of this year, you can't starting with Jan 1st.

When you submit your US taxes you will have to submit for 2555 or 2555EZ, Foreign Earned Income Exclusion, for the part of your income which is not made and paid in the US. But because you will fail to pass the Bona Fide Residence Test and the Physical Presence Test, you cannot claim that income as foreign earned, so it would be US-earned income... in which case you would be in violation of the INA, as you are not allowed to work until you have the EAD/green card/citizenship.

You would only pass either of those two tests for this tax year (2015), come 2016 you will not be able to pass either test and therefore you would start paying taxes in the US. Once you do that... and you don't have an EAD... then that is not allowed.

Good luck!

Hi Mollenne,

Thanks so much for your quick reply.

It's sad that the EAD process doesn't go through faster. It just seems unfair to be expected to live off my fiance for such a long time.

Lozalex--

I don't agree with the tax talk as it applies to you. You will not likely have your visa and move to the U.S. in 2015. So for the part of 2016 that you live and work in the UK, you will pass the bonafide residence test. You are now and will be until you move, a bonafide resident of the UK. It does not end when 2015 ends. It ends when you move to the US as far as claiming a foreign income exclusion on a joint tax return with your spouse. An example using round numbers--

Say the maximum foreign income exclusion is $100,000

1) You lived and worked in the UK 100% of the year. You are eligible to exclude up to $100k of your foreign wages.

2) You left the UK end of June (50% of the year). You are eligible to reduce your foreign income by only half the max allowance or $50,000.

3) You left the UK end of April (1/3 of the year a bonafide resident of the UK). You can reduce your foreign earned income up to $33,333.33.