Working for UK company while on my 90 Day K-1

[Whitby 0]

Good morning everyone,

First I would like to thank you all for your efforts and comments across this board. We have been using it for the last few months since my US Fiancee and I began our Visa process to be together. We obviously had questions and ideas about our path and we have found plenty of answers from browsing these forums.

However we still have a few that we cannot find an answer to so if anyone has an idea we would love to hear it.

I am John and I live in the UK. My work is office based but I have previously worked from home for various companies. While I am well set up at my work, I have two separate offers to work from home from other companies. Being able to do this would allow us to get together quicker and to plan the wedding together in person. We are trying to figure out what are the Visa restrictions on me doing this.

So basically I am wondering, can I work from the US for a foreign company during the 90 days of the K-1 Visa?

Thanks for your time!

John

[A'n'L 735]

There is actually no true, legal answer to that question, and it is one that is asked frequently (search the forum for arguments pro/con given in previous threads). Working remotely for a foreign company (with income arriving in a foreign bank account) is still a grey zone. Personally, I think you'll be perfectly fine to do so. Just remember to pay taxes/report income in both countries.

[JFH 12,191]

I have always taken this to be the correct answer (that it is not allowed):

May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad? This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories.

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens. Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions: 1) total annual earnings from such services is less than $3,000; 2) the nonresident alien is physically present in the United States for not more than 90 days in the year; 3) the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

[JFH 12,191]

I meant to add - if a break in employment (and therefore income) is not feasible for you, you might want to re-consider whether the K-1 is the right option for you.

[A'n'L 735]

I have always taken this to be the correct answer (that it is not allowed):

May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad? This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories.

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens. Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions: 1) total annual earnings from such services is less than $3,000; 2) the nonresident alien is physically present in the United States for not more than 90 days in the year; 3) the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

But, this is still tax law - not immigration law.

[JFH 12,191]

If you fulfill those three requirements ($3000, etc) then you have earned 'US source income' - in other words you are considered to be working in the US (aside from the tax issue). And the K-1 does not permit work in the US prior to the wedding.

And that's why I can't spend 90 days on the VWP with my husband and continue doing my job. I work from home full-time, never at the company's office (which is 150 miles from me anyway).

Tell you what, OP - why not tell the CBP officer that's what you plan to do when you land and see what he says about it. Then you'll know for sure.

[A'n'L 735]

We have to look at it this way: There is no law (that I or anyone I've discussed with am aware of) that states that a foreigner without EAD is not allowed to work (while physically present) in the US.

There is however a law that prohibits a US employer to employ an individual that is not authorized to work here (https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-8501.html). The purpose of that law is two-fold: 1) To discourage illegal immigration for financial purposes, 2) To protect the jobs and levels of pay/benefits of US citizens/LPRs and others who are authorized to work in the US.

However, that law obviously does not apply to a foreign employer.

Tax law, again, is a different story.

[Whitby 0]

Hello again,

Thanks very much for your comments they have been enlightening/worrying (but that not your fault!)

I might have to explain our current situation a bit more as we did our research the best we could but we are being surprised by some items in the time line.

The query about working for an overseas company while on the 90 K-1 residency was for us to actually be together as soon as we could manage. That’s our priority but we are practical people ad being employed has to be considered too.

We are well on the K-1 Path, our I-129f is approved and my medical is done. The 1^st available Embassy Interview is booked (early January 2017) but we were not figuring on such a wait for the Employment Authorization and we can only expect things to be prolonged given the usual uncertainty. We did expect a bit of down time but from what I see it is too much for us.

So I have a new question, Was the K-1 the correct path and what are my options to stay on it?

• Can I use the K-1 to enter and marry then return to my UK and process the Adjustment Of Status from the UK. Or am I required to remain in the US during the Adjustment of Status and Employment Authorization?

Yet again I have to say thanks but does anyone have a recommendation for us?

And most importantly have an amazing Thanksgiving!

John

[KristaW 2]

Hi John,

You do have to remain in the US while you wait for your AOS to process. However, you need to wait an average of 3 months for your AP to process which would allow you to begin international travel again. There is a processing timeline on the USCIS website that shows this average. My husband is from England and we paid an hourly service to speak to an immigration lawyer about working remote in IT for his foreign employer and she advised against it. It is a grey area but when you file taxes and declare your pay, then it could affect you later on with your overall process to citizenship if the immigration officers chose to pursue it. She expects that in time someone would be made an example of and it would end up in a court case to declare this grey area. My lawyer advised us to be safe rather than sorry.

We got married within weeks of his arrival and submitted the following forms: I-485 (AOS), I-765 (EAD work), and I-131 (Advanced Parole)

The AP will allow you to leave and re-enter the US while your AOS is pending. The expected wait time for the EAD and AP cards are 3 months that you will have to remain in the US without working. I have heard that if you get a job offer than you can call to expedite your EAD but you have to meet the qualifications they set forth, i.e. would cause you extreme financial loss, etc.

Hope this helps!