Working remotely while waiting for EAD (K1 Visa)

[s11 14]

Hi guys,

 

I am going to the US on K1 visa and currently, I am working for a US company in Singapore. My company has offered to give me a transfer to the US once I have EAD and till then I can work remotely/work from home for them.

If I continued to work remotely for the Singapore office from the US and continued to draw my salary for doing so, would I be violating the immigration laws here? 

 

I could not any recent topic on this website with this question hence creating a new topic.

 

Any advice appreciated.

 

[millefleur 5,046]

**Moved from Finding Work in America to Working & Traveling During US Immigration; OP is asking about remote work during the AOS process**

[s11 14]

Hi guys,

I am going to the US on K1 visa and currently, I am working for a US company in Singapore. My company has offered to give me a transfer to the US once I have EAD and till then I can work remotely/work from home for Singapore office.

 

Based on the posts in this discussion, it looks like most of the people have their employers outside the US or with no office/connection to the US. 

 

If I specify the transfer in the EAD application, would it help to expedite the EAD process? or would I be violating the immigration laws?

What if I take a sabbatical for the time when EAD is being processed, I won't be earning salary hence the tax issues might not occur? Not sure about how the US taxation system works actually so still researching on this.

 

[Penguin_ie 5,993]

***** post from another thread by another member merged.  PLease do not ask questions about your case in another member's thread it can confuse those wanting to give advice and you can end up ith the wrong advice. *****

[geowrian 22,337]

Working remotely for a foreign company and being paid into the foreign account is a gray area between immigration and tax law.

As far as the IRS is concerned, you're employed & earning income in the US, which may be taxable (depending on how you end up filing taxes...i.e. if you're a resident alien or not).

As far as immigration is concerned, it's not quite as clear. The laws haven't caught up with the modern world.

 

That said, it would at least sound to me like it's not a cause for expedite if you are working remotely. i.e. If you believe don't need an EAD to perform that function, why is the EAD needed sooner than somebody else?

On the other hand, if you are being offered a transfer to a US-based employer, that sounds like a much better case for an expedite.

[C90 376]

20 hours ago, s11 said:

Hi guys,

 

I am going to the US on K1 visa and currently, I am working for a US company in Singapore. My company has offered to give me a transfer to the US once I have EAD and till then I can work remotely/work from home for them.

If I continued to work remotely for the Singapore office from the US and continued to draw my salary for doing so, would I be violating the immigration laws here? 

 

I could not any recent topic on this website with this question hence creating a new topic.

 

Any advice appreciated.

 

It's a gray area that has been up for debate for years. The IO at your green card interview has the right to decide you violated the rules and not grant you a green card, which could result in deportation.

 

I know there's stories on this forum from people who successfully worked remote while waiting for EAD and got their green card, but if you want to be safe I would not do it. If the company is this fond of you, they might just keep your position for you until after you obtain your EAD.

[s11 14]

Thanks for your answer. I understand this is a grey area and no one is quite sure of what to expect. 

 

On 2/27/2019 at 12:06 AM, geowrian said:

Working remotely for a foreign company and being paid into the foreign account is a gray area between immigration and tax law.

As far as the IRS is concerned, you're employed & earning income in the US, which may be taxable (depending on how you end up filing taxes...i.e. if you're a resident alien or not).

As far as immigration is concerned, it's not quite as clear. The laws haven't caught up with the modern world.

2

I have another question related to the IRS. I won't be earning income in the US; it'll go to the foreign account. But do I need to pay taxes for this income even though I would be already paying taxes in a different country? 

 

On 2/27/2019 at 12:06 AM, geowrian said:

On the other hand, if you are being offered a transfer to a US-based employer, that sounds like a much better case for an expedite.

 

If we use this to expedite the case, the time in which the EAD is being processed, would I be able to work or I'll need to go on unpaid leave or just quit? I am just wondering what would be the best option here. 

 

[s11 14]

Thanks for your answer.

 

23 hours ago, C90 said:

It's a gray area that has been up for debate for years. The IO at your green card interview has the right to decide you violated the rules and not grant you a green card, which could result in deportation. 

2

How does the IO decide this? Are there any guidelines on this? But as you mentioned this is a grey area, so probably it's safe to assume "no clear guidelines on this" is one of the reasons too.

 

23 hours ago, C90 said:

I know there's stories on this forum from people who successfully worked remote while waiting for EAD and got their green card, but if you want to be safe I would not do it. If the company is this fond of you, they might just keep your position for you until after you obtain your EAD.

2

Thanks for the suggestion. Honestly, I doubt my company would do that. After all, it's a corporate and five months wait is a long time but I'll present this alternative too. 

 

[geowrian 22,337]

10 minutes ago, s11 said:

I have another question related to the IRS. I won't be earning income in the US; it'll go to the foreign account. But do I need to pay taxes for this income even though I would be already paying taxes in a different country? 

If you file taxes as a resident alien in the US, then you must report worldwide income. It may or may not be taxed, depending on how much and if you qualify for the Foreign Earned Income Exclusion (FEIE) or Foreign Tax Credit (FTC).

 

Quote

If we use this to expedite the case, the time in which the EAD is being processed, would I be able to work or I'll need to go on unpaid leave or just quit? I am just wondering what would be the best option here.

You cannot engage in work without work authorization (an EAD or green card). A pending application doesn't qualify.

Whether or not your circumstances qualify as work to US immigration is the gray area. I can't tell you either way for sure how it is considered.

 

If you go the expedite route, my suggestion is to only do that and not work remotely. As noted above, if you believe you are permitted to work remotely then there is no need to expedite the EAD. If you believe you are not permitted to work remotely, then an expedite makes sense so you can start working.

It can't be played both ways (i.e. it's not actually work but I need an EAD sooner to do it).

Edited February 28, 2019 by geowrian

[s11 14]

10 minutes ago, geowrian said:

If you file taxes as a resident alien in the US, then you must report worldwide income. It may or may not be taxed, depending on how much and if you qualify for the Foreign Earned Income Exclusion (FEIE) or Foreign Tax Credit (FTC).

 

OK. So based on my research, they'll consider me a resident alien since once I move to the US on K-1 visa, I'll stay there for more than 31 calendar days. Please correct me here. 

Link: 
1. https://www.irs.gov/individuals/international-taxpayers/determining-alien-tax-status
2. https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

 

11 minutes ago, geowrian said:

If you go the expedite route, my suggestion is to only do that and not work remotely. As noted above, if you believe you are permitted to work remotely then there is no need to expedite the EAD. If you believe you are not permitted to work remotely, then an expedite makes sense so you can start working.

 

Based on the discussion so far, I believe I am not allowed to work remotely (at least if I don't want to be in the grey area).

 

 

11 minutes ago, geowrian said:

It can't be played both ways (i.e. it's not actually work but I need an EAD sooner to do it).

1

Could you please elaborate on this? I am not sure if I understand this correctly. 

 

[geowrian 22,337]

15 minutes ago, s11 said:

OK. So based on my research, they'll consider me a resident alien since once I move to the US on K-1 visa, I'll stay there for more than 31 calendar days. Please correct me here. 

Link: 
1. https://www.irs.gov/individuals/international-taxpayers/determining-alien-tax-status
2. https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

For the substantial presence test, it's 31+ days in the current year and 183+ days in the 3 year period prior, with only 1/3 and 1/6 of the days for the 2nd and 3rd prior years being counted.

The math can get a little complicated, but if you stay at least 183+ days in the US in a single tax year then you are certainly a resident alien.

Even if not, as the spouse of a US citizen, you can elect to be treated as a resident alien anyway. The reason to do this would be since you must be a resident alien for the entire tax year to qualify to file taxes jointly (and therefore get the hefty >$12k tax deduction that comes with doing so).

 

15 minutes ago, s11 said:

Could you please elaborate on this? I am not sure if I understand this correctly.

If you believe you are allowed to work remotely, then there is no need for an EAD to be expedited.

If you believe you are not allowed to work remotely, then the job offer/transfer is a reason to request an expedite so you can accept it sooner.

[s11 14]

Thanks for clarifying that.

 

Now, going back to the original question,

1. it is clear and established that I'd be a resident alien and I'll have to pay taxes if I chose to work remotely. 

2. But if I show this foreign income, how it'd affect the immigration is unclear.

3. The safest scenario would be that I quit my current job, get a transfer letter, apply to expedite EAD (not sure how that's done too) and start working on US contract once I have EAD.

 

few more questions:

1. Is it possible or advisable to contact USCIS or IRS to get an answer on this?

2. Can I do voluntary work while waiting for EAD?

 

[geowrian 22,337]

8 minutes ago, s11 said:

apply to expedite EAD (not sure how that's done too)

You can call USCIS and request the expedite. They may request that you fax them evidence (usually this takes a few days for them to send the instructions).

 

8 minutes ago, s11 said:

1. Is it possible or advisable to contact USCIS or IRS to get an answer on this?

2. Can I do voluntary work while waiting for EAD?

1) USCIS customer service and IOs are prohibited from providing legal advice. If you tell them it is work then it's not permitted without an EAD or green card. The issue is what qualifies as work. But you are free to call them anyway...there's no harm in doing so.

 

2) Depends on precisely what you're doing. For instance, if you're volunteering at a soup kitchen or picking up litter or reading to kids or whatever, you should be perfectly fine. You're not taking away an employment opportunity or work experience from somebody else.

If you're providing services that would normally be done by a worker (including intern), then no. For example, being an unpaid receptionist or assistant at a business would likely cross the line.

[s11 14]

 

49 minutes ago, geowrian said:

You can call USCIS and request the expedite. They may request that you fax them evidence (usually this takes a few days for them to send the instructions).

 

2) Depends on precisely what you're doing. For instance, if you're volunteering at a soup kitchen or picking up litter or reading to kids or whatever, you should be perfectly fine. You're not taking away an employment opportunity or work experience from somebody else.

If you're providing services that would normally be done by a worker (including intern), then no. For example, being an unpaid receptionist or assistant at a business would likely cross the line.

1

Noted, thanks. 

 

50 minutes ago, geowrian said:

1) USCIS customer service and IOs are prohibited from providing legal advice. If you tell them it is work then it's not permitted without an EAD or green card. The issue is what qualifies as work. But you are free to call them anyway...there's no harm in doing so.

 

Then who can provide a concrete answer to this? Immigration lawyers? 

 

Also, is there any US govt or USCIS link that I can use to show to my company and explain the situation? Anything that might help to get me a transfer letter or a new offer letter as per US contract? 

 

[geowrian 22,337]

19 minutes ago, s11 said:

Then who can provide a concrete answer to this? Immigration lawyers? 

Until the laws are updated to address remote work, or USCIS decides to push the issue and it results in a court decision eligible to set a precedent, there is no concrete answer. You could find 10 different attorneys and get more than 2 very different, opposing conclusions.

Here's a good read from the perspective of 2 immigration attorneys: https://www.nationofimmigrators.com/employment-based-immigration/immigration-lawyers-arguing-can-i-work-from-home-for-a-foreign-employer/

 

Quote

Also, is there any US govt or USCIS link that I can use to show to my company and explain the situation? Anything that might help to get me a transfer letter or a new offer letter as per US contract? 

There's nothing to directly show as it is a topic not covered by existing law. The closest I could refer you to are below. The top link is the from the USCIS policy manual and is an easier read. The latter is the actual code, which is much more legalese.

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

http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1255&num=0&edition=prelim#0-0-0-5845

Edited February 28, 2019 by geowrian