DS-260 question: "Have you...violated the terms of a U.S. visa?" (while in U.S., worked remotely for foreign employer without EAD)

[FlyingCircus 5]

Background: my spouse came last year on a K-1 visa, we got married and started the Adjustment of Status process, but then abandoned it when my spouse had to leave the US. We're now doing the IR-1/CR-1 process.

While my spouse was here on the K-1, they continued to work remotely for an employer back in their home country. This lasted for about 6 weeks total. We were married the entire time the work occurred, if that makes a difference.

 

I'm consulting a CPA friend to make sure that we handle this properly when it comes to taxes and the IRS.

 

However, I am trying to think ahead about where else this remote work issue will come up.

 

One thing I found was on the DS-260. There is a question on the page called "Security and Background: Immigration Law Violations Information 1" that says: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

 

I had a brief consultation with an attorney who felt that the correct answer to that question is "yes" because of working without an EAD while in the US. "Yes" answers allow for an explanation in the accompanying text box, which seems appropriate in order to clarify the situation.

 

The attorney felt that this would not affect the issuance of an IR-1/CR-1 because we are married. I have found this information from USCIS that mentions that spouses (immediate relatives) are not barred from adjusting status due to unauthorized employment, but since we are no longer doing AOS, I am trying to find out what the DOS says in regards to issuing visas. The only mention of unauthorized employment I could find from DOS Foreign Affairs Manual is related to misrepresentation and does not seem to apply based on the section I have bolded below:

 

Quote

(U) Inconsistent Conduct Within 90 Days of Admission to the United States:

(a)  (U) If an alien engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her true intentions in seeking a visa or admission to the United States).  You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe he is ineligible 6C1.

(b)  (U) Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:

(iv)   (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment.  (Note: Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90 day rule; the alien must also engage in conduct inconsistent with authorized status without the benefit of such a change of status. Moreover, if an alien engages in the activities for which he/she was admitted, such as to study on a F1 visa, but also engages in unauthorized work without seeking an employment authorization document (EAD), then that is insufficient to justify a presumption of a misrepresentation.)

 

https://fam.state.gov/FAM/09FAM/09FAM030209.html#M302_9_4_B_3

 

In this case, my spouse did engage in the activities for which he/she was admitted, namely marrying me.

 

So my questions are:

 

1. Do you agree with the attorney's interpretation about the question from the DS-260 and its effect on the issuance of a visa for my spouse?
2. Can you point me to any links (from USCIS, DOS, or any law) with more information about this?
3. Is there anywhere else that we might expect this issue to come up?

[pushbrk 12,898]

In this context, remote work for a foreign employer does not constitute unauthorized employment, in my opinion.

 

Working in the US, means being employed in a job that requires EAD, or other work authorization like LPR or USC status.  I would just answer the question "no" and get on with life.  As for taxes, this is foreign employment, period.

[retheem 566]

18 hours ago, FlyingCircus said:

Background: my spouse came last year on a K-1 visa, we got married and started the Adjustment of Status process, but then abandoned it when my spouse had to leave the US. We're now doing the IR-1/CR-1 process.

While my spouse was here on the K-1, they continued to work remotely for an employer back in their home country. This lasted for about 6 weeks total. We were married the entire time the work occurred, if that makes a difference.

 

I'm consulting a CPA friend to make sure that we handle this properly when it comes to taxes and the IRS.

 

However, I am trying to think ahead about where else this remote work issue will come up.

 

One thing I found was on the DS-260. There is a question on the page called "Security and Background: Immigration Law Violations Information 1" that says: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

 

I had a brief consultation with an attorney who felt that the correct answer to that question is "yes" because of working without an EAD while in the US. "Yes" answers allow for an explanation in the accompanying text box, which seems appropriate in order to clarify the situation.

 

The attorney felt that this would not affect the issuance of an IR-1/CR-1 because we are married. I have found this information from USCIS that mentions that spouses (immediate relatives) are not barred from adjusting status due to unauthorized employment, but since we are no longer doing AOS, I am trying to find out what the DOS says in regards to issuing visas. The only mention of unauthorized employment I could find from DOS Foreign Affairs Manual is related to misrepresentation and does not seem to apply based on the section I have bolded below:

 

 

In this case, my spouse did engage in the activities for which he/she was admitted, namely marrying me.

 

So my questions are:

 

1. Do you agree with the attorney's interpretation about the question from the DS-260 and its effect on the issuance of a visa for my spouse?
2. Can you point me to any links (from USCIS, DOS, or any law) with more information about this?
3. Is there anywhere else that we might expect this issue to come up?

Answer NO and move on.

[flicks1998 1,044]

20 hours ago, FlyingCircus said:

Background: my spouse came last year on a K-1 visa, we got married and started the Adjustment of Status process, but then abandoned it when my spouse had to leave the US. We're now doing the IR-1/CR-1 process.

While my spouse was here on the K-1, they continued to work remotely for an employer back in their home country. This lasted for about 6 weeks total. We were married the entire time the work occurred, if that makes a difference.

 

I'm consulting a CPA friend to make sure that we handle this properly when it comes to taxes and the IRS.

 

However, I am trying to think ahead about where else this remote work issue will come up.

 

One thing I found was on the DS-260. There is a question on the page called "Security and Background: Immigration Law Violations Information 1" that says: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

 

I had a brief consultation with an attorney who felt that the correct answer to that question is "yes" because of working without an EAD while in the US. "Yes" answers allow for an explanation in the accompanying text box, which seems appropriate in order to clarify the situation.

 

The attorney felt that this would not affect the issuance of an IR-1/CR-1 because we are married. I have found this information from USCIS that mentions that spouses (immediate relatives) are not barred from adjusting status due to unauthorized employment, but since we are no longer doing AOS, I am trying to find out what the DOS says in regards to issuing visas. The only mention of unauthorized employment I could find from DOS Foreign Affairs Manual is related to misrepresentation and does not seem to apply based on the section I have bolded below:

 

 

In this case, my spouse did engage in the activities for which he/she was admitted, namely marrying me.

 

So my questions are:

 

1. Do you agree with the attorney's interpretation about the question from the DS-260 and its effect on the issuance of a visa for my spouse?
2. Can you point me to any links (from USCIS, DOS, or any law) with more information about this?
3. Is there anywhere else that we might expect this issue to come up?

I would say no as well.  Normally as long as your not being paid in the "host" country and are not a signatory for an entity in the "host" country, there are not too many problems.  I know personally 50+ global nomads and they just get paid in their country of citizenship or country of PR.  However foreign governments are trying to find a way to capture this "tax revenue" as well as offering special types of visas but thats a whole other story to what you are doing.  To be on the safe side though, if your fiance/spouse has a linkedin profile, I would put the work ending period on the month they arrived into the US as well as any resumes.  Its only 6 weeks. 

[FlyingCircus 5]

On 2/4/2021 at 10:12 AM, flicks1998 said:

I would say no as well.  Normally as long as your not being paid in the "host" country and are not a signatory for an entity in the "host" country, there are not too many problems.  I know personally 50+ global nomads and they just get paid in their country of citizenship or country of PR.  However foreign governments are trying to find a way to capture this "tax revenue" as well as offering special types of visas but thats a whole other story to what you are doing.  To be on the safe side though, if your fiance/spouse has a linkedin profile, I would put the work ending period on the month they arrived into the US as well as any resumes.  Its only 6 weeks. 

No Linkedin profile to speak of, but I wouldn't be taking that suggestion in any case because we are not interested in hiding anything.

 

To clarify, my spouse has worked for the same (foreign) employer for over 10 years, including the 6 weeks spent here in the U.S. when (at the time) we were pursuing adjustment of status. They are now back in their home country and still working for the same employer while we wait on the I-130 process. This continuous period of employment was reported on the (now abandoned) I-485 as well as on the I-130/I-130A.

 

The I-485 had a question that said "Have you EVER worked in the United States without authorization"? We answered "No", but on the additional information page specified "currently working remotely for employer in [home country]". The instructions said to add an explanation if you answer "No" but are unsure of your answer, so that's what we did.

 

The I-485 also had a question that said "Have you ever violated the terms or conditions of your nonimmigrant status?" and we answered "No" to that since the issue of employment was already covered in the previous question.

 

However, the question on the DS-160 and 260 (in bold in my original post) is worded differently.

 

I am thinking about this issue because not only will the DS-260 need to be completed for the immigrant visa, but we are also interested in applying for a tourist visa for my spouse to visit in the meantime, and it has the same question on the application.

[FlyingCircus 5]

On 2/3/2021 at 3:40 PM, pushbrk said:

In this context, remote work for a foreign employer does not constitute unauthorized employment, in my opinion.

 

Working in the US, means being employed in a job that requires EAD, or other work authorization like LPR or USC status.  I would just answer the question "no" and get on with life.  As for taxes, this is foreign employment, period.

Thanks for your input.

 

I don't want to derail this discussion due to the tax issue but suffice to say, my and my trusted CPA friend's reading of IRS Pub. 519 is that my spouse's income from the time working for a foreign employer while in the U.S. is considered U.S. source income (as all three conditions for exemption listed on page 16 are not met). We will be filing a joint return to avoid any issues with this, which aside from the extra paperwork involved works out better financially anyway.

 

As I mentioned in my previous post, in the immediate term I am more interested in how to answer that question on the DS-160 if my spouse applies for a tourist visa (we know it's a long shot) and later, on the DS-260 for the immigrant visa. We want the answers to be correct and consistent given the situation.

 

Does any of the information I provided in the post above change whether the answer is "yes" or "no", in your opinion?

[pushbrk 12,898]

Get a second opinion from another tax professional.

[FlyingCircus 5]

37 minutes ago, pushbrk said:

Get a second opinion from another tax professional.

I can certainly do that, although I have spent quite a bit of time researching this and have seen that opinions are mixed. You can understand that this has been tough to sort out because I have already consulted two professionals (one legal professional and one tax professional) and both of their answers seem to run counter to the responses in this thread, at least so far.