Experiences? K1 working for foreign company while waiting AOS

[bob85 2]

So I am currently working for an Australian company and waiting for my K1 to be processed. When I move to the US with the K1 I would like to continue working for my Australian employer during the AOS waiting period. I understand this is a grey area, hence I wanted to hear about real experiences people have had in this situation.

Is there anyone who has done this and now applying for Citizenship and having any problems? Or any issues while filing taxes, etc?

Any info is much appreciated!

[geowrian 22,337]

I wouldn't really call it a gray area. If you're performing work while on US soil and do not have a work permit to do so, then it's illegal. The "gray area" is what constitutes work. Earning income is allowed. Earning a wage in compensation for performing a job is not.

 

This isn't just a citizenship or tax issue. It's a violation of your status obtained via your K-1 visa, and also via your AOS filing. Also, entering the US with the intention to violate the visa's conditions is visa fraud. Do not set yourself up for all kinds of problems.

 

There's an interesting legal debate here, but even then the sole minority opinion says it could be argued that it's still permitted in those very specific circumstances he presented. I'm betting most people won't want to have to make that argument in practice, though. Other sources I found generally point to the same arguments presented here as well.

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

 

If the employer also does business in the US, then the only existing challenges to it almost evaporate.

Edited February 14, 2017 by geowrian

[bob85 2]

Hi geowrian, thanks for the info. I'll have a read of your link.

It is a bit of a tricky situation. I work for a very small business (not in the US) and am looking to continue that work long term. I guess the safest way to go would be to take a leave of absence while the EAD is processing. However the business would suffer in the months that I cannot work.

I am trying to find the balance to do right by the US gov but also for the company I work for.

[geowrian 22,337]

1 minute ago, bob85 said:

Hi geowrian, thanks for the info. I'll have a read of your link.

It is a bit of a tricky situation. I work for a very small business (not in the US) and am looking to continue that work long term. I guess the safest way to go would be to take a leave of absence while the EAD is processing. However the business would suffer in the months that I cannot work.

I am trying to find the balance to do right by the US gov but also for the company I work for.

Oh, I completely understand. It's a rough transition doing the K-1 route. I do wish you the best.

 

Well, for immigration purposes, there's no "balance" of doing right.

[ShanghaiSurfer 135]

My fiancé is planning on doing the same. However the company is in China and has no business interest in USA. And is 100% for work in China. 

 

I think there would be a gray area if your company has interests in America. And I wouldn't risk it.

[KristyD 4]

I asked my immigration lawyer the same question as I am in the same boat and it doesn't matter so long as it's going into an Australian account and will be taxed by Australia.  I wouldnt transfer any money from Australia to the US though until your visa is approved.

Edited February 14, 2017 by KristyD

[Loki_Go 126]

Hi, I did it. I never stopped working for my Canadian company when I moved to the US on a K1. I'm now on a conditional 2 year green card. It's entirely possible and yes, it's a grey area, but understand it is a risk. My employment never came up in my K1 interview but it certainly did in my AOS interview. The CO seemed to know I was working and Didn't ask me anything about it, but instead turned to my husband and asked. My husband and I decided long ago that if it ever came up we were going to be honest about it and so he was. The CO didn't seem to care and moved on to other questioning.

 

If you want more info about my experiences I welcome you to look through my previous posts. There's a lot of info I've given over the time, too much to try to repeat here.

 

In a nutshell: Taxes are complicated and expensive. I get paid in CAD into my Canadian bank. You may have to cash out some investments and/or particular savings accounts (like tax free ones) because non-residents cannot hold them.

 

There's a lot that goes into this, and don't expect your company to cover your butt. YOU need to look out for YOURSELF.

 

[Loki_Go 126]

11 hours ago, KristyD said:

I asked my immigration lawyer the same question as I am in the same boat and it doesn't matter so long as it's going into an Australian account and will be taxed by Australia.  I wouldnt transfer any money from Australia to the US though until your visa is approved.

I simply use my CDN debit card here to withdraw cash and then deposit into my US bank account. There's a hefty fee each time though.

 

[Loki_Go 126]

13 hours ago, geowrian said:

I wouldn't really call it a gray area. If you're performing work while on US soil and do not have a work permit to do so, then it's illegal. The "gray area" is what constitutes work. Earning income is allowed. Earning a wage in compensation for performing a job is not.

 

This isn't just a citizenship or tax issue. It's a violation of your status obtained via your K-1 visa, and also via your AOS filing. Also, entering the US with the intention to violate the visa's conditions is visa fraud. Do not set yourself up for all kinds of problems.

 

There's an interesting legal debate here, but even then the sole minority opinion says it could be argued that it's still permitted in those very specific circumstances he presented. I'm betting most people won't want to have to make that argument in practice, though. Other sources I found generally point to the same arguments presented here as well.

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

 

If the employer also does business in the US, then the only existing challenges to it almost evaporate.

I'm interested in where you're drawing your conclusions from. Working remotely is a grey area and has been for years.

 

Do you have specific experience? Were you rejected? To be honest, I feel a lot of people saying it's not possible have no real idea if it is or not. I did this, I still am, it came up

 in my AOS interview and there was no violation of the terms of my AOS. It's also NOT visa fraud. Stop perpetuating this fear. In fact, working illegally is forgiven at the AOS stage (as are overstays).

 

I did it. It's entirely possible (for now).

 

 

[Loki_Go 126]

14 hours ago, geowrian said:

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

 

 

I would like to point out that link is from 2012 so it's obviously outdated.

 

Look at this link form USCIS:

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter6.html

 

Updated January 5, 2017. Read Part 2 where they talk about Authorized Employment. Since working remotely for your home country does not need work authorization from the US, it would seem this issue is becoming less and less of a grey area.

(Props to a another wonderful poster here for that link, who is also considering working from home)

 

[Loki_Go 126]

14 hours ago, bob85 said:

Hi geowrian, thanks for the info. I'll have a read of your link.

It is a bit of a tricky situation. I work for a very small business (not in the US) and am looking to continue that work long term. I guess the safest way to go would be to take a leave of absence while the EAD is processing. However the business would suffer in the months that I cannot work.

I am trying to find the balance to do right by the US gov but also for the company I work for.

I only lost one day of work because of the move. The next day I plugged in my computer here in the US, connected to the VPN and continued working.

 

[geowrian 22,337]

19 minutes ago, Loki_Go said:

I'm interested in where you're drawing your conclusions from. Working remotely is a grey area and has been for years.

 

Do you have specific experience? Were you rejected? To be honest, I feel a lot of people saying it's not possible have no real idea if it is or not. I did this, I still am, it came up

 in my AOS interview and there was no violation of the terms of my AOS. It's also NOT visa fraud. Stop perpetuating this fear. In fact, working illegally is forgiven at the AOS stage (as are overstays).

 

I did it. It's entirely possible (for now).

 

 

The reason it didn't matter in your AOS is because unauthorized employment is ignored for AOS purposes for the spouse of a USC (just like overstay is). It doesn't mean it was allowed (especially if detected prior to AOS filing).

 

Sure, it's possible. Many things are possible even though they aren't technically legal. As you noted, since working illegally is ignored (not forgiven) for AOS purposes, does that mean it's permitted to forego the EAD process? It's not even though you can get away with it. Anyway, my point was that entering the US on a visa that does not grant work privileges and then knowingly performing work is visa fraud. As I posted above, there is an ongoing legal argument about whether or not working for a foreign company is within USCIS' jurisdiction, but the majority opinion is that it's not permitted.

 

3 minutes ago, Loki_Go said:

I would like to point out that link is from 2012 so it's obviously outdated.

 

Look at this link form USCIS:

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter6.html

 

Updated January 5, 2017. Read Part 2 where they talk about Authorized Employment. Since working remotely for your home country does not need work authorization from the US, it would seem this issue is becoming less and less of a grey area.

(Props to a another wonderful poster here for that link, who is also considering working from home)

 

Since when are 2012 immigration law discussions outdated? Unless overridden by new law or cases, the law remains the same. Also note this speaks of working during the AOS filing period - not prior to it.

 

While I do understand the argument that USCIS has no jurisdiction to regulate foreign work, I don't think that argument carries much weight.

 

I agree to disagree, but I stand firm in that the stated interpretation of what is permitted remains. People have been denied visas for stating their intent to work remotely for their non-US employer while applying for visas that do not grant work permits (most notably tourist visas). The law is even more clear if the employer does business within the US.

 

Best wishes.

[Loki_Go 126]

1 minute ago, geowrian said:

I agree to disagree, but I stand firm in that the stated interpretation of what is permitted remains. People have been denied visas for stating their intent to work remotely for their non-US employer while applying for visas that do not grant work permits (most notably tourist visas). The law is even more clear if the employer does business within the US.

 

Best wishes.

We're not talking about tourist visas here. No one is taking a US job. No one needs US work authorization to work remotely. No one even needs a SSN either.

 

Where has anyone been denied during a K1? Please link... because when I researched it there were no links for any of that. Not one first person account.

 

Please, I did not commit visa fraud. I never hid the fact I was working. It was on my G325A in my K1 packet. It's a grey area where USCIS has no jurisdiction to deny entry because of it. I'm not working for a US company. I think that's where you're getting it mixed up.

 

Laws are continuously being updated and changed especially due to technology, and yes, I'd consider a BLOG from 2012 to be outdated. A blog is hardly a reliable law source.

 

[geowrian 22,337]

1 minute ago, Loki_Go said:

We're not talking about tourist visas here. No one is taking a US job. No one needs US work authorization to work remotely. No one even needs a SSN either.

 

Where has anyone been denied during a K1? Please link... because when I researched it there were no links for any of that. Not one first person account.

 

Please, I did not commit visa fraud. I never hid the fact I was working. It was on my G325A in my K1 packet. It's a grey area where USCIS has no jurisdiction to deny entry because of it. I'm not working for a US company. I think that's where you're getting it mixed up.

 

Laws are continuously being updated and changed especially due to technology, and yes, I'd consider a BLOG from 2012 to be outdated. A blog is hardly a reliable law source.

 

The rule applies to any visa for which a work permit is not available immediately. I brought up tourist visas as they meet this requirement. While a K-1 permits you to request an EAD and a tourist visa does not, they are identical in terms of what working rights they grant upon entry.

 

I did not accuse you of anything. I did not state anything towards your case other than noting that unauthorized employment is irrelevant for AOS. I never accused you of fraud, telling lies, etc. Please don't take the discussion so personally.

 

That's your opinion. Good day, sir.

[Loki_Go 126]

My experience is not just my opinion. Whether or not you like it working remotely is possible and not illegal as defined by USCIS. I did it and more and more people have the opportunity to do it. Why discourage them? Why scare them by stating it's straight up visa fraud? I'll always tell people considering this that it's a risk, but so far no one has been able to give a first person account of anyone being denied from a K1 visa. Not one. Not even you.

 

It absolutely sucks that most people have to quit their jobs to do this. I understand that. This is all so hard, but if given such a wonderful opportunity, why continue giving incorrect info? Let people decide for themselves if it's worth the risk.