Remote work income from non-US company caused RFIE

[art1234 14]

28 minutes ago, Nitas_man said:

For OP’s sake I hope you are correct and I am not

USCIS denies K1 I485 petitions when the couple fails to marry within 90 days or “otherwise violates the terms of the visa”.  Marriage date, travel, and we will see if unauthorized work is included.  All of these “fail to comply with terms….” are fixed with a new Immigrant petition.

I hope so too... even tho you also make a lot of sense, the real life outcome may be different. 

I find it frustrating where I have seen K1 holders who have gotten married then had domestic issues even resulting in their arrest, divorced and the STILL got their GC. In comparison I have potentially violated gray area rule where I haven't taken any USC job away cos I've work for foreign company. 

One thing to note: I was asked in my K1 interview, back in my home's embassy, as a last question if I was to continue to work remotely if I were to be approved and go to U.S. I said "most certainly". The officer responded with, "nice that you have such opportunity". Then he proceeded to approve the visa. Not sure if the officer had the power or knowledge to deny it because I was about to do something illegal.

Throughout all our process I haven't been hiding my remote work so I think it is best continue to do so and if it comes to denial I could potentially challenge it court and make a precedent. Hiding something like this from USCIS is a lot worse than the offense itself in my opinion.

Edited July 11, 2021 by art95

[art1234 14]

I might be reading this wrong but it clearly states that "bars to adjustment do not apply to: immediate relatives". Spouse is as immediate relative as it gets as far as I understand. So even if I were to engage in unauthorized work for U.S. employer (which I am not) it would still be exempt and forgiven. 

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6#footnote-4

 

It is quite surprising how much useful information one can find in USCIS manual if one is willing to read through it which I don't always do .

 

Also another quote to further prove my point: "Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization" 

The way I read it is only employment for employers who are in United States are considered unauthorized. 

Edited July 11, 2021 by art95

[Nat&Amy 623]

30 minutes ago, art95 said:

another quote to further prove my point: "Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization" 

The way I read it is only employment for employers who are in United States are considered unauthorized. 

It could also be read as anyone doing work within the United States. The way it is phrased does not make it incontestable that the "within the United States" applies exclusively to the employer. That is the difficulty you will find when arguing your case based solely on the bolded part.

 

In addition to that, remote work has its own set of challenging circumstances that USCIS has no obligation to dive into.  By all means, include a letter with the extract you quoted and explain your interpretation of it if you feel you must, but if you send back another i864 with your income in it, it might simply be rejected and I doubt USCIS will send you a second RFE about it.  If your assets and spouse income go over the poverty line, an i864 with just those might save you future headaches.

 

In any case, please keep us posted. This is an important case to follow for all those in the same situation.

 

[art1234 14]

1 minute ago, Nat&Amy said:

It could also be read as anyone doing work within the United States. The way it is phrased does not make it incontestable that the "within the United States" applies exclusively to the employer. That is the difficulty you will find when arguing your case based solely on the bolded part.

 

In addition to that, remote work has its own set of challenging circumstances that USCIS has no obligation to dive into.  By all means, include a letter with the extract you quoted and explain your interpretation of it if you feel you must, but if you send back another i864 with your income in it, it might simply be rejected and I doubt USCIS will send you a second RFE about it.  If your assets and spouse income go over the poverty line, an i864 with just those might save you future headaches.

 

In any case, please keep us posted. This is an important case to follow for all those in the same situation.

 

Im still debating whether or not I should create new i-864 and exclude my income. The RFE we have now actually has 2 sections divided by massive underlined "OR"... the first part asks for proof of employment authorization. And after OR it asks to provide more evidence about our savings. We only sent one month worth of bank statements. So it is asking for 12 months worth of bank statements.  

[Letspaintcookies 2,310]

I do think you'll get away with it for the big picture but USCIS will most likely not use your income for the I-864. And as soon as something is 'wrong' with that thing they'll completely throw it out. And as mentioned before your case will probably get denied instead of sending another RFE. You said you're good with assets so this won't be a problem but instead of just responding with a letter to defend your case I would send them a new I-864 without your income and a letter explaining why you included it in the first filing.

[Nitas_man 3,100]

3 hours ago, art95 said:

I might be reading this wrong but it clearly states that "bars to adjustment do not apply to: immediate relatives". Spouse is as immediate relative as it gets as far as I understand. So even if I were to engage in unauthorized work for U.S. employer (which I am not) it would still be exempt and forgiven. 

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6#footnote-4

 

It is quite surprising how much useful information one can find in USCIS manual if one is willing to read through it which I don't always do .

 

Also another quote to further prove my point: "Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization" 

The way I read it is only employment for employers who are in United States are considered unauthorized. 

We are all saying this.  Worst case, a refile of an immigrant petition / adjustment of status will make this all disappear.  The gray area is category of visa and category of petition.  The rules are clear about forgiveness under an immigrant petition.

 

From my side I wish you luck

[Ontarkie 14,325]

6 hours ago, art95 said:

I think the best thing I can think of is to write a statement of that in my case the authorization was not explicitly required by law. If it doesn't work out it'll set a precedent for others.

I don't think removing the stated income from a new i-864 will look good. Once the water is spilled no point of trying to get it all back in bucket. 

Did you just list the income or was there a place to list that the income if from the UK? I'm wondering as there have been so many members do just what you did and even had talked about it at their interview. The IO seemed interested in one particular member's job and had a pretty good discussion.

[Ayrton 965]

3 hours ago, art95 said:

Im still debating whether or not I should create new i-864 and exclude my income. The RFE we have now actually has 2 sections divided by massive underlined "OR"... the first part asks for proof of employment authorization. And after OR it asks to provide more evidence about our savings. We only sent one month worth of bank statements. So it is asking for 12 months worth of bank statements.  

If you can have another 864 that meets the requirements, I don't see why not you can't send it. They are asking for proof of authorization to work because they assumed you want to use that income. Since you can't use it, I would write a detailed letter explaining that you mistakenly added your income from the UK, and would like to proceed with just your spouse income and assets.

[art1234 14]

19 minutes ago, Ontarkie said:

Did you just list the income or was there a place to list that the income if from the UK? I'm wondering as there have been so many members do just what you did and even had talked about it at their interview. The IO seemed interested in one particular member's job and had a pretty good discussion.

There was a field for other household member’s income (including intending immigrant’s) in form I-864. We thought it would strengthen our case cos more is better. But apparently it just caused issue. 

[art1234 14]

1 minute ago, Ayrton said:

If you can have another 864 that meets the requirements, I don't see why not you can't send it. They are asking for proof of authorization to work because they assumed you want to use that income. Since you can't use it, I would write a detailed letter explaining that you mistakenly added your income from the UK, and would like to proceed with just your spouse income and assets.

Yeap that is the route we intend to take. We will write a statement letter explaining how we understood their policy manual and ask for exclusion of my income and overall forgiveness in case we have miss interpreted the rules. 

[art1234 14]

42 minutes ago, Nitas_man said:

We are all saying this.  Worst case, a refile of an immigrant petition / adjustment of status will make this all disappear.  The gray area is category of visa and category of petition.  The rules are clear about forgiveness under an immigrant petition.

 

From my side I wish you luck

Thanks. And yes we are thinking of detailed explanation letter and in case we didn’t understand the rules correctly ask forgiveness since it under spousal immediate relative section. I think if we don’t acknowledge that we might be wrong and write a defensive letter we might as well leave US now. 

[Nitas_man 3,100]

10 minutes ago, art95 said:

Thanks. And yes we are thinking of detailed explanation letter and in case we didn’t understand the rules correctly ask forgiveness since it under spousal immediate relative section. I think if we don’t acknowledge that we might be wrong and write a defensive letter we might as well leave US now. 

LOL its not that bad.  This?  Is unfortunate but there is nothing here that isn’t fixable

[art1234 14]

30 minutes ago, Nitas_man said:

LOL its not that bad.  This?  Is unfortunate but there is nothing here that isn’t fixable

Hope your right. For future reference for others who plan to do K1 and remote work while waiting for AOS - CR-1 seems to be much less headache and would’ve gone that route if I knew what I know ahead of time. 

[KayDeeCee 4,894]

Working remotely for a foreign employer, getting paid to a foreign bank account is a gray area that has been discussed many many times over the years. It won't get your AOS denied, as it would be forgiven even if you were considered to be working without authorization. This is mostly an issue for sorting out your taxes, not for immigration. This has nothing to do with an I-130, as someone else in this thread mentioned. This is about the I-485 and the I-864.

 

Your RFE said to provide the evidence that you are working legally (so your income would be allowed to be included on the I-864 and not to see if you are doing something illegal), OR send evidence of more assets so your USC spouse can then qualify to sponsor you without a joint sponsor because your income will not be included. Send the evidence that your spouse makes enough between income and assets to sponsor you. That is how you answer this RFE. You do not have to get all freaked out and make plans to move out of the country already.

[USC4SPOUSE 506]

@art95 I do not have an answer to your original question. I am wondering, though, if this would be a good opportunity to request to expedite your EAD/AP on the basis of financial loss so that you can continue working remotely. I think it may be worth a shot.  

Edited July 14, 2021 by USC4SPOUSE