Work question

[greg1984 19]

Hello everyone

 

We are a K1 couple who are in the AOS phase and still waiting on my wife's EAD.  Obviously it doesn't take a legal scholar to know that she cannot be employed here until she has the EAD.  Is anyone aware of any reason why she could not work for a company in her home country remotely here?  She would be paid in her home country in her bank there and pay taxes on it in her home country.  Physically she would still be here in the USA. 

[geowrian 22,337]

This is a gray area and there simply isn't a definitive answer if it is permitted or not. It's in the crossroads between immigration law and tax law. You will find valid arguments from lawyers on both sides of the issue.

USCIS has not pursued this as unauthorized employment (nor would they as an IR of a USC), but that doesn't mean that they will never push the issue. The laws just haven't kept up with technology.

[KeratNY 76]

13 hours ago, geowrian said:

This is a gray area and there simply isn't a definitive answer if it is permitted or not. It's in the crossroads between immigration law and tax law. You will find valid arguments from lawyers on both sides of the issue.

USCIS has not pursued this as unauthorized employment (nor would they as an IR of a USC), but that doesn't mean that they will never push the issue. The laws just haven't kept up with technology.

Not sure I understand the gray area. 

I think it is clearly unauthorized employment (it matters where you do the work from not where the company is based) but UE that doesn't matter for adjustment through spouse though.  This is well established. Otherwise it would be ripe for abuse, everyone working here illegally and saying they were doing it for a parent company or LLC in their home country. 

She will have to pay the taxes here, not in the foreign country. This is also well established and immutable, that's why they call it "death and taxes." She can prove to the foreign country that she paid the taxes here. And no, it will not be an issue that she filed taxes for income received before she got her EAD. 

 

In short, she is engaging in unauthorized employment, but that is forgiven when adjusting through spouse, as long as that is the only issue (ie not claiming to be a US citizen, false work docs etc)

 

Finally got you on one @geowrian!

Edited May 18, 2018 by KeratNY

[geowrian 22,337]

6 minutes ago, KeratNY said:

Not sure I understand the gray area. 

I think it is clearly unauthorized employment (it matters where you do the work from not where the company is based) but UE that doesn't matter for adjustment through spouse though.  This is well established.

She will have to pay the taxes here, not in the foreign country. This is also well established. She can prove to the foreign country that she paid the taxes here. 

 

In short, she is engaging in unauthorized employment, but that is forgiven when adjusting through spouse, as long as that is the only issue (ie not claiming to be a US citizen, false work docs etc)

That is a valid argument. The common counterargument is that the US has no say on who is eligible to work for a non-US employer. Sure the IRS can (and does) tax you based on its own set of rules, but the IRS taxes you on worldwide income anyway so it doesn't matter if it's for a foreign employer or not. Another argument is that if the US considered this remote work for a foreign employer to be unauthorized employment, then anybody who checks their work email or takes a conference call or something in the US would be violating status unless they had work authorization.

 

Which set of arguments is stronger is something not established in law or court precedent yet.

 

Quote

Finally got you on one @geowrian!

Edited May 18, 2018 by geowrian

[KeratNY 76]

25 minutes ago, geowrian said:

That is a valid argument. The common counterargument is that the US has no say on who is eligible to work for a non-US employer. Sure the IRS can (and does) tax you based on its own set of rules, but the IRS taxes you on worldwide income anyway so it doesn't matter if it's for a foreign employer or not. Another argument is that if the US considered this remote work for a foreign employer to be unauthorized employment, then anybody who checks their work email or takes a conference call or something in the US would be violating status unless they had work authorization.

 

Which set of arguments is stronger is something not established in law or court precedent yet.

 

The US has complete say on who does what work within its own borders regardless of who it ultimately benefits. That is why temporary business visitors need specific visas and their work here is highly regulated and limited in scope. The work email thing is beyond the scope of this thread but believe it or not there is an "active vs passive" test and if they can prove you went beyond the normal "responding to emails on vacation" then you could be violating that status. In this online  world, millions would be abuse it by living and working here for a parent employer in another country. 

 

It is a virtual certainty that the spouse is engaging in unauthorized employment, but luckily that is not an issue in this case and there are no obstacles to doing it. The one thing this changes is that she must be honest and answer "yes" if ever asked if she has engaged in unauthorized employment. Luckily, it is very unlikely anyone would ask her, and she doesn't have to go back and change the I-485 to answer "yes" to that question, and there would be no consequences anyway. 

Edited May 18, 2018 by KeratNY

[geowrian 22,337]

17 minutes ago, KeratNY said:

The US has complete say on who does what work within its own borders regardless of who it ultimately benefits. That is why temporary business visitors need specific visas and their work here is highly regulated and limited in scope. The work email thing is beyond the scope of this thread but believe it or not there is an "active vs passive" test and if they can prove you went beyond the normal "responding to emails on vacation" then you could be violating that status. In this virtual world, millions would be abuse it by living and working here for a parent employer in another country. 

 

It is a virtual certainty that the spouse is engaging in unauthorized employment, but luckily that is not an issue in this case and there are no obstacles to doing it. The one thing this changes is that she must be honest and answer "yes" if ever asked if she has engaged in unauthorized employment. Luckily, it is very unlikely anyone would ask her, and she doesn't have to go back and change the I-485 to answer "yes" to that question, and there would be no consequences anyway. 

I'd challenge the assumption that the US does have say on who can work for a non-US employer. Specifically, the USCIS policy manual covers unauthorized employment as a bar to AOS here:

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

Specifically:

"A. Definitions

1. Unauthorized Employment

Unauthorized employment is any service or labor performed for an employer within the United States by a foreign national who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the foreign national’s employment authorization. ^[11] "

 

The USCIS definition of unauthorized employment specifically states that it applies to an employer within the US. The employer in this example is not within the US. Additionally, the definitions USCIS uses for employee, employer, and employment back this up:

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757/0-0-0-28770.html#0-0-0-18289

The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

(g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;

(h) The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

 

But alas, there is no case to look at where either of these viewpoints has been tested.

Edit: And these are policy manuals and CFRs, not actual law. They're basically how USCIS interprets the law and/or functions, but are not the law itself and can be (and have been) challenged in court.

Edited May 18, 2018 by geowrian

[KeratNY 76]

8 minutes ago, geowrian said:

I'd challenge the assumption that the US does have say on who can work for a non-US employer. Specifically, the USCIS policy manual covers unauthorized employment as a bar to AOS here:

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

Specifically:

"A. Definitions

1. Unauthorized Employment

Unauthorized employment is any service or labor performed for an employer within the United States by a foreign national who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the foreign national’s employment authorization. ^[11] "

 

The USCIS definition of unauthorized employment specifically states that it applies to an employer within the US. The employer in this example is not within the US. Additionally, the definitions USCIS uses for employee, employer, and employment back this up:

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757/0-0-0-28770.html#0-0-0-18289

The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

(g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;

(h) The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

 

But alas, there is no case to look at where either of these viewpoints has been tested.

Well, we're getting far removed from OP's question but the key phrase is: "or who exceeds the scope or period of the foreign national’s employment authorization"

So again if they get authorization to be temporarily employed here through a business visa and then do more than the scope allows them to do they have violated their status. Since OP's spouse has no employment authorization to be here on behalf of foreign employer, any work she does for them exceeds the scope of her (non-existent) authorization. 

Your example only works if she had employment authorization from the US on behalf of her work for the foreign employer and she stayed within that scope. For example, say a manager for Toyota in Japan wanted to come to the US to tour factories and give some speeches and training. They get a business visa for this purpose. Can they now do any work they want here on behalf of Toyota in Japan? Clearly, no, that would be exceeding the scope of the visa and is considered unauthorized employment. 

This is very, very well established. 10s of thousands of people every day would like to work here illegally on behalf of a foreign employer without needing to go through all that work/business visa pain. The fact that this does not happen with impunity should be a clue that it is barred in practice and theory. 

 

Edited May 18, 2018 by KeratNY

[geowrian 22,337]

5 minutes ago, KeratNY said:

Well, we're getting far removed from OP's question but the key phrase is: "or who exceeds the scope or period of the foreign national’s employment authorization"

So again if they get authorization to be temporarily employed here through a business visa and then do more than the scope allows them to do they have violated their status. Since OP's spouse has no employment authorization to be here on behalf of foreign employer, any work she does for them exceeds the scope of her (non-existent) authorization. 

Your example only works if she had employment authorization from the US on behalf of her work for the foreign employer and she stayed within that scope. For example, say a manager for Toyota in Japan wanted to come to the US to tour factories and give some speeches and training. They get a business visa for this purpose. Can they now do any work they want here on behalf of Toyota in Japan? Clearly, no, that would be exceeding the scope of the visa and is considered unauthorized employment. 

This is very, very well established. 10s of thousands of people every day would like to work here illegally on behalf of a foreign employer without needing to go through all that work/business visa pain. The fact that this does not happen with impunity should be a clue that it is barred in practice and theory. 

 

Good points. But now we're also throwing in 2 more major aspects into the mix: remote work and whether there is a matching US-based company. The remote work is a critical difference, which is where the law has not caught up yet. The law was not written (or updated to handle) when this was reasonably possible.

 

My personal opinion is that if there is a US-based company then it's crossing a line into unauthorized employment. The fundamental goal of this part of the law is to preserve US jobs for US-authorized workers. An alien in the US working remotely for a non-US employer (without a matching US company) is not taking a job from anybody else. An alien working non-remotely and/or working for an overseas sister company is potentially taking a US job IMHO, which is where it crosses the line.

 

Beyond that, I think we need to just agree to disagree. I'm really not sure there's any more value to the OP.

[KeratNY 76]

4 minutes ago, geowrian said:

An alien in the US working remotely for a non-US employer (without a matching US company) is not taking a job from anybody else.

Says who? Who is to say that if this action was barred this non-US employer would then need to set up shop in the US in order to have US workers? In other words, if they couldn't have 10 people working from them remotely who then traveled to the US and did that work, they might need to hire 10 people in the US do that work. That is the stance this administration has really hammered home. 

[geowrian 22,337]

30 minutes ago, KeratNY said:

Says who? Who is to say that if this action was barred this non-US employer would then need to set up shop in the US in order to have US workers? In other words, if they couldn't have 10 people working from them remotely who then traveled to the US and did that work, they might need to hire 10 people in the US do that work. That is the stance this administration has really hammered home. 

Well now we're adding in opportunity cost, which isn't something really addressed in current law very well. But on a more fundamental level, why would a company create a US branch for workers that are capable of functioning entirely remotely? What would be their incentive to come to the US, since they're not creating goods or providing services within the US (otherwise the employees wouldn't actually be able to work remotely)? Why not just stay abroad instead since there's no reason for them to have workers specifically in the US in the first place?

 

Since we are straying from the OP here, I opened up a spot in my PMs in case you want to pursue the topic further there.

Edited May 18, 2018 by geowrian

[Orangesapples 1,954]

11 hours ago, KeratNY said:

The US has complete say on who does what work within its own borders regardless of who it ultimately benefits. That is why temporary business visitors need specific visas and their work here is highly regulated and limited in scope. The work email thing is beyond the scope of this thread but believe it or not there is an "active vs passive" test and if they can prove you went beyond the normal "responding to emails on vacation" then you could be violating that status. In this online  world, millions would be abuse it by living and working here for a parent employer in another country. 

 

It is a virtual certainty that the spouse is engaging in unauthorized employment, but luckily that is not an issue in this case and there are no obstacles to doing it. The one thing this changes is that she must be honest and answer "yes" if ever asked if she has engaged in unauthorized employment. Luckily, it is very unlikely anyone would ask her, and she doesn't have to go back and change the I-485 to answer "yes" to that question, and there would be no consequences anyway. 

I thought the point of needing work authorization in order to work in the US is so that the immigrant doesn't take a job from a US citizen, undermining wages and changing the labor market. 

[KeratNY 76]

Just now, Orangesapples said:

I thought the point of needing work authorization in order to work in the US is so that the immigrant doesn't take a job from a US citizen, undermining wages and changing the labor market. 

Nothing you said contradicts what I said. 

[Orangesapples 1,954]

4 minutes ago, KeratNY said:

Nothing you said contradicts what I said. 

I just don't see why the US would care about it because it doesn't violate the spirit of the law. 

 

But yeah, sorry, early morning. 

[KeratNY 76]

4 minutes ago, Orangesapples said:

I just don't see why the US would care about it because it doesn't violate the spirit of the law. 

 

But yeah, sorry, early morning. 

They would care about it because they are committed to "US jobs for US workers" and they take the most liberal view of what a US job is - and any job performed within its own borders, regardless of who it ultimately benefits, is a US job. If she is a therapist seeing patients by skype online that takes away from a US therapist who can do that. If she is a web designer, that takes away from 1 US web designer. They can't control what happens in other countries but they can and do control what happens within its own borders.  If OP was applying for employment based green card she would be violating her status and putting the PR in jeopardy.