EAD while employed by foreign company?

[Peot 161]

I have read a few threads here and just want to confirm this much is true:

 

I can continue to work and be employed by a foreign company remotely, without any ties or intent to transfer to an American company, WITHOUT needing an EAD.

Yes, I will still be paying US taxes and filing an IRS form, as I'm aware that taxes are incurred where you are, not where the funds are from.

 

Again, the company is foreign and will be paying out foreign funds and will be paying those funds into a foreign bank account. This circumstance will not change, regardless of visa status.

 

I have heard both "yes" and "no" from people here which is why I need to clear it up. Both from those saying "you can't work without a permit" and others saying "as long as it's not American, you don't need EAD". 

[Peot 161]

To follow up: Man, in further searching I DEFINITELY see people arguing on both sides of the coin. The problem for me is that, unless I lose my job, I'm not going to stop getting paid... and I wouldn't want to lose that income stream either way. There will be funds moving regardless of whether I have EAD, so I'm not sure what to do at tax time. I should also point out that I will be maintaining a foreign residence while waiting for AOS to process, so the only thing that tells anyone (either the US government or my employer) that I'm in the US is my honesty.

 

Some say "foreign company in foreign funds to foreign bank with foreign address = you're fine. And also don't file IRS taxes."

Others say strictly "You're physically in the US so you need to pay US taxes even if the funds stay in another country and in foreign funds, and to do that you need EAD".

 

So if the worst case scenario happens and I DO need to get an EAD before I work in the US remotely, then what do I do about the income incurred while this is pending?? Throw it away? Pretend it didn't happen? Report it on my taxes even though I can't show an EAD was approved for that time? Quit my job??

 

I mean speaking frankly, because I will be maintaining a residence in Canada, for all they know I hopped on a plane every single day and did my work from that address. Nothing, at least from a paperwork standpoint with my office, will change. The servers I will be technically working on are located in the foreign country. All evidence of work is foreign. This is confusing and silly.

[Coco8 1,042]

It is a shady area, that is why people don't agree. 

 

Because you have immigrant intent, I think you should wait. How are you going to explain to the IRS you are filing income from work activities from a time you were not supposed to be working? It would be even more complicated if the company has offices in the US.

 

I think it is different for someone who is on a visitor visa and is responding work emails during a holiday or doing some short assignment for work due to an emergency. That person is not a resident for tax purposes. 

 

 

 

 

[Coco8 1,042]

3 minutes ago, Peot said:

I mean speaking frankly, because I will be maintaining a residence in Canada

You are getting a green card. You will be a US resident no matter what, even for tax purposes. You will have to get an ID and it will have a US address. How are you thinking of mantaining residence in Canada? You cannot live in Canada.

Edited July 8, 2017 by Coco8

[Peot 161]

30 minutes ago, Coco8 said:

You are getting a green card. You will be a US resident no matter what, even for tax purposes. You will have to get an ID and it will have a US address. How are you thinking of mantaining residence in Canada? You cannot live in Canada.

Well I am going in on a non-immigrant family visa. I won't be a permanent resident in the United States at that point. My permanent residency will (by all definitions I've read) still qualify as my foreign country, especially since I will maintain property and an address there.

 

In fact, I have read that if you are outside of Canada yet employed by a Canadian company on a full-time basis, that those hours actually accumulate towards your CANADIAN residency requirements.

And following that thought, if I were to have entered the United States on a work visa I wouldn't even qualify to keep residency in the United States since the company was foreign....

 

The thing tying me to the United States is the spouse, not the work.

 

And yes, I CAN still live in Canada. I mean I'm not going to lose my citizenship to Canada or property in Canada because I have an American fiance (and then spouse while adjusting status). If I wanted to call everything off, I could legally and rightfully move back to Canada and live there without having to apply for a visa.

To maintain residence you need to be employed by a Canadian company (I am) and have lived there for at least 2 years of the last 5 (I have). It's only after 5 years that I lose residency in Canada.

 

It should also be noted for those reading that after I get the green card, this discussion is a moot point. It only applies while I am a non-immigrant in the United States while adjusting status.

Edited July 8, 2017 by Peot

[Lemonslice 4,841]

You are mixing many different matters. 

 

Residency for taxes (IRS and CRA) is different than residency for immigration.  Having a residence (house) in Canada does not automatically make you a "resident of Canada".  It makes you a owner of real estate in Canada (it is also my situation).   

 

Are you a Canadian citizen? If so, you are right, you can return and live in Canada at any time.  However, you would eventually lose your US Permanent residence

 

 

 

 

[Coco8 1,042]

22 minutes ago, Peot said:

Well I am going in on a non-immigrant family visa.

The visa allows you enter the US and immigrate. The only reason why it says "non-immigrant" is that you have file for AOS. An H1B is an non-immigrant visa but you have to file for taxes from the moment you get into the country. 

 

During the time between you get in the US and you get your EAD, it is a bit of a gray area. However, you will be have to pay US taxes for your foreign income and if you are not allowed to work because you don't have your EAD, how are you going to explain that to USCIS? You have to present your tax returns to get your permanent green card in your 2nd year of marriage. See here: https://ttlc.intuit.com/questions/2942273-just-married-on-a-k-1-visa-what-s-the-best-way-to-file

 

22 minutes ago, Peot said:

In fact, I have read that if you are outside of Canada yet employed by a Canadian company on a full-time basis, that those hours actually accumulate towards your CANADIAN residency requirements.

And following that thought, if I were to have entered the United States on a work visa I wouldn't even qualify to keep residency in the United States since the company was foreign....

 

 

You can be a resident of two countries at the same time. The fact that you a resident in one country does not ban you from being one in another one. 

 

There are also 2 types of residents: tax resident and immigrant permanent resident. Two different things. However, once you are a immigrant permanent resident (or an in process), you are always a tax resident.

 

 

Edited July 8, 2017 by Coco8

[Peot 161]

Ok, I understand. It "leads to permanent resident", but implies tax residency.

 

I guess I just don't understand how they can even distinguish what income was earned abroad and which income was earned after I entered the United States.

For example, I earn an income that is generated the PREVIOUS MONTH to the current. That means that if I earn income in May it gets paid out in June and so forth. If I enter the United States in June, why would I be paying taxes on income I earned while living and working in Canada? How would I prove it wasn't earned while working in the United States? How could I prove it was IF it was?

 

I mean I'm still back at square one in that, yes I realize that tax is payable to the country and state you live in and reside in physically, even though you are receiving foreign income. However there is nothing indicating that the income was earned while residing in the United States expect that I would be honest to do so.

 

All income earned WILL be taxed automatically by the CRA and will need some kind of foreign tax credit to recoup... OR... Do I simply pay the Canadian tax on earnings, and then after AOS pay the American tax on earnings (with foreign tax credit through treaty)?

 

Again, the only solution I'm reading seems to be "lose your job" and that's just not an option......... Nor should it be.

Edited July 8, 2017 by Peot

[Coco8 1,042]

7 minutes ago, Peot said:

Ok, I understand. It "leads to permanent resident", but implies tax residency.

 

I guess I just don't understand how they can even distinguish what income was earned abroad and which income was earned after I entered the United States.

 

Your probably have to start when you get married.

 

7 minutes ago, Peot said:

All income earned WILL be taxed automatically by the CRA and will need some kind of foreign tax credit to recoup... OR... Do I simply pay the Canadian tax on earnings, and then after AOS pay the American tax on earnings (with foreign tax credit through treaty)?

 

I don't know about Canadian taxes. 

 

7 minutes ago, Peot said:

Again, the only solution I'm reading seems to be "lose your job" and that's just not an option......... Nor should it be.

That is why some people get married and apply for IR-1. You can work once you enter the US and you would not have this problem. 

 

You can take a leave of absence from your job. 

 

The US makes dumb rules for foreigners all the time. It is not about being just. They don't care because we don't get to vote and US citizen spouses don't care enough to complain to their representatives. If you don't like it, you can ask your US citizen fiance to write to his/her representatives to change the law or you can complain to the executive branch so that they have more people working at USCIS and they process stuff faster. Or have your fiance move to Canada; Canada is a nice country, is not like moving to a third world country.

 

 

 

 

 

 

 

Edited July 8, 2017 by Coco8

[Peot 161]

In order to prevent you from paying taxes twice on foreign earned income, there is a form in place through he IRS that allows you to recoup taxes paid on a foreign income to the foreign govt while living in the US. It's a foreign tax credit. Even with an EAD I would have to use this since the company automatically pays out taxes from the paycheck, and I would be subject to paying the taxes on it twice otherwise.

 

No, I can't take a leave of absence from my job. I don't have enough staying power there yet.

 

No, she is not able to leave the United States without giving up the rights to her children, and no her children cannot simply move countries without their father's consent (which will never ever happen). 

 

In hindsight, yes, definitely a IR-1 would have been the absolute best thing to do for our situation NOW. However, I did NOT have this job when we first filed for the K-1, and was self-employed so this was not an issue. Now that the processing for K-1 is nearing it's end, we're stuck with a new job and no way of receiving income on it. 

 

Next question I suppose should be - Is there a way my company can fast-track an EAD to permit me to continue working in the United States while I have K-1, before I immigrate there permanently such as an H-2B? 

[Coco8 1,042]

But your original question was not about taxes, it was about working without the EAD for a foreign company. 

 

EAD is expedited with job offer from US based company. 

 

If the company has US headquarters they could do an L1 (transfer within company) but it is very expensive since it involves lawyers, I doubt they would do that for a few months. It also required you've been in the company for at least a year and it seems this is a new job. You also would have to be hired by the US based company.

 

H2-B is for agricultural workers. 

 

H1-B for companies is closed until October. It also has a quota and people are selected by lottery because applications > visas available.

 

Anyway, you cannot work without the EAD. You can ask a lawyer if you want. If the US government finds out it will jeopardize your green card and your status. And Canada and the US share a lot of information. You will be getting more background checks done on you before getting the green card. Canada is not some small developing country miles away. 

 

 

[Peot 161]

Just now, Coco8 said:

But your original question was not about taxes, it was about working without the EAD for a foreign company. 

 

EAD is expedited with job offer from US based company. 

 

If the company has US headquarters they could do an L1 (transfer within company) but it is very expensive since it involves lawyers, I doubt they would do that for a few months. It also required you've been in the company for at least a year and it seems this is a new job. You also would have to be hired by the US based company.

 

H2-B is for agricultural workers. 

 

H1-B for companies is closed until October. It also has a quota and people are selected by lottery because applications > visas available.

 

Anyway, you cannot work without the EAD. You can ask a lawyer if you want. If the US government finds out it will jeopardize your green card and your status. And Canada and the US share a lot of information. You will be getting more background checks done on you before getting the green card. Canada is not some small developing country miles away. 

 

 

It's all the same bag. The only reason a person gets an EAD when employed by a foreign company is so that they can pay their taxes! It's not as though the company isn't allowed to hire me. I am not an illegal worker for them.

 

The original job offer DID come from the US-based company. We pushed it to Canada since, I currently live there, and will pay taxes there. 

I am wondering if I can get an EAD expedited by them if that's the case. As per L1, it would not just be for a few months. Once the L1 was completed, I would simply remain with the US branch.

 

Also, H-2B literally says "non-agricultural workers" on USCIS site. It is a temporary work permit, which would be all that I need until AOS.

[Coco8 1,042]

Just now, Peot said:

The only reason a person gets an EAD when employed by a foreign company is so that they can pay their taxes!

No, it is not like this. I had an EAD. The EAD is the authorization to work. Before you get it, you are not authorized to work. 

 

People without EADs pay taxes. As  I said above, and someone else also said, paying taxes is not directly related to the visa status or the immigration status. 

 

3 minutes ago, Peot said:

It's not as though the company isn't allowed to hire me. I am not an illegal worker for them.

A company in country A does not care about laws country B if they hire someone in country B. That is a concern of the person in country B. 

 

4 minutes ago, Peot said:

The original job offer DID come from the US-based company. We pushed it to Canada since, I currently live there, and will pay taxes there. 

I am wondering if I can get an EAD expedited by them if that's the case. As per L1, it would not just be for a few months. Once the L1 was completed, I would simply remain with the US branch.

 

If the company has an affiliate in the US then it is worse that you work without the EAD for the branch in Canada. 

 

Again, taxes and being authorized to work are 2 different things. And the US does not care if you pay taxes to Canada. Immigration and the IRS are two different entities. 

 

Yes, the L1 would be for a few months because once you get the EAD your L1 will be void. We are talking about 3-4 months from the moment you file for AOS. If you give them a job offer from the US branch they will expedite the EAD.

 

7 minutes ago, Peot said:

Also, H-2B literally says "non-agricultural workers" on USCIS site. It is a temporary work permit, which would be all that I need until AOS.

It is for seasonal workers. Not for people working for companies and planning to stay in the US. 

 

You won't be able to get 2 visas anyway. 

 

To start with, you cannot enter the country with 2 visas at the same time. If you want to get marry and AOS, you will have to enter with the K1. If  you want to work you would have to enter with an H2B and you won't be able to marry/AOS. If you leave before AOS is complete (and you have your EAD), you are out of K1 and not able to complete AOS in the US (so back to spousal visa). 

 

You seem pretty stubborn. The response will always be the same. Resign from the job. Get marry and file AOS with job offer to expedite EAD. THen start working for US branch. The end. 

 

 

 

 

 

 

 

 

 

 

 

 

[Peot 161]

33 minutes ago, Coco8 said:

You seem pretty stubborn. The response will always be the same. Resign from the job. Get marry and file AOS with job offer to expedite EAD. THen start working for US branch. The end. 

When it took over a year of resume submissions, 2 major interviews, and beating out over 30 applicants to get this dream job, you would be stubborn about giving it up as well! Giving it up would ensure I never got hired by them, or anyone in the industry, again.

 

But I don't know what you're talking about since if you get married and file IR-1, you don't need an EAD, and expedition would not be possible since you can't live in the US until AOS is completed.

 

I still feel as though my initial thought is a grey area. If I am NOT technically a taxable resident, then why would I need an EAD? The only place I might need to put its registration number is on my taxes. No US employer will ever see that work permit, ever. The only reason I have the EAD at that point is to pay taxes and I still don't know that I would qualify as a taxable resident, though everyone thinks I would be.

 

However the IRS site that says to qualify as a "resident for taxation purposes" I must pass either the "Green card test" or the "Substantial presence test".

https://www.irs.gov/individuals/international-taxpayers/determining-alien-tax-status

 

I know that a K-1's intent is to lead to permanent resident, but I would NOT technically meet either of those tests, so I struggle, and yes STUBBORNLY, wonder how and why I would be subjected to taxation for income earned by a foreign entity if I do not hold a green card at that time, and I am not employed by a US company.

 

In fact, it seems more the case that I could, and should, classify myself as a dual-status alien and file taxes accordingly:

https://www.irs.gov/individuals/international-taxpayers/dual-status-aliens

 

According to their publication: 

Quote

A nonresident alien usually is subject to U.S. income tax only on U.S. source income. Under limited circumstances, certain foreign source income is subject to U.S. tax. - Pub 519, 2016 

The caveat being that I cannot work from a fixed place of business, and my laptop computer is not a fixed place of business..... 

 

This frustrates me.

Edited July 8, 2017 by Peot

[Coco8 1,042]

23 minutes ago, Peot said:

 

But I don't know what you're talking about since if you get married and file IR-1, you don't need an EAD, and expedition would not be possible since you can't live in the US until AOS is completed.

With an IR-1 you get a green card the moment you enter so you don't need an EAD nor AOS. You can work the moment you get into the US.

 

For K-1, you don't need to complete AOS to get the EAD expedited. That is why the EAD is expedites, not the rest of the process. 

 

23 minutes ago, Peot said:

I still feel as though my initial thought is a grey area. If I am NOT technically a taxable resident, then why would I need an EAD? The only place I might need to put its registration number is on my taxes. No US employer will ever see that work permit, ever. The only reason I have the EAD at that point is to pay taxes and I still don't know that I would qualify as a taxable resident, though everyone thinks I would be.

 

However the IRS site that says to qualify as a "resident for taxation purposes" I must pass either the "Green card test" or the "Substantial presence test".

https://www.irs.gov/individuals/international-taxpayers/determining-alien-tax-status

 

 

You still do not understand that resident for immigration and resident for tax purposes are 2 different things! 

 

YOU NEED AUTHORIZATION TO WORK!!! Being a tax resident is something else! You cannot work because you are not authorized to work. I've been saying this for the last posts.

 

The link for IRS is irrelevant. You would not be a alien because of K1/AOS. That is for people with visitor visas, etc. You would not be an alien. 

 

The EAD number does not have anything to do with the IRS/Tax number.

 

 

 

Edited July 8, 2017 by Coco8