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I will shortly be relocating to the United States on a K-1 (fiance) visa and will most likely continue working with my current (Australian) employer. My salary will continue to be deposited into my Australian back account. My understanding is that I am not permitted to work in the United States until I receive employment authorisation (form I-765). Would this include working remotely for a foreign employer whilst being paid into a foreign account? If not, would there be any other regulations I might be breaking by doing so?

I've heard anecdotally that employment authorisation is granted quite quickly and as a matter of course (you can't apply for it until you've entered the country if I'm not mistaken), however a more concrete understanding of the timeframe to expect would be greatly appreciated.

littleadv
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Gary
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    Related: http://expatriates.stackexchange.com/questions/61/are-h4-visa-holders-allowed-to-do-remote-intellectual-work – Karlson May 08 '14 at 02:19
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    http://expatriates.stackexchange.com/questions/572/living-in-the-us-on-an-f2-visa-and-working-remotely-for-a-canadian-company?rq=1 – Karlson May 08 '14 at 02:33
  • Was hoping editing in this exchange would be less draconian than in the larger ones. I see I was mistaken. Thank you all very much for your answers, and the answers to many other questions I've had. – Gary May 08 '14 at 08:15
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    As a side note - there's no benefit whatsoever in going through K-1. From my friends, who did. They claim it was the worst mistake they could have made, being unemployed for a long time is one (major) reason. Instead, get married in Australia and come on a IR1 visa - you can start working the next day. The lengths of the IR1 and K-1 processes are comparable. I'm not a lawyer, etc etc, talk to one. – littleadv May 08 '14 at 08:32
  • @littleadv: but doesn't the time for the petition + consular processing take around a year? during which the OP will need to stay in Australia and away from their new spouse. – user102008 May 08 '14 at 19:54
  • Thank you again for the advice. Unfortunately it's a moot point for me because my SO and I a same sex couple. I suspect it'd be more likely for me to win lotto than for the Australian government to permit same sex marriage. – Gary May 08 '14 at 22:16
  • @Gary: "I've heard anecdotally that employment authorisation is granted quite quickly and as a matter of course" It's not quick. There are two types of EADs that you could get. 1) An EAD based on the K-1 status; this is completely useless. It takes 2-3 months to get an EAD, and it ends when the K-1 status expires, which is 90 days after entry anyway, so it is a waste of money. 2) The EAD as an I-485 applicant. This is free and you can get it 2-3 months after applying, but that means a total time of: time to get married + time to get marriage certificate and other docs + 2-3 months after that. – user102008 May 09 '14 at 02:26
  • @user102008 IR1 and K1 consular and USCIS processing both take about the same time. In fact - these are very similar processes that have exactly the same steps. The only difference is that with K1, once you land, you have to get married and then start I485 - essentially all that stuff right over again. Double the work, double the time - what for? – littleadv May 09 '14 at 03:57
  • @Gary have you heard of Canada? It's a very nice country, they speak English there, and even have the same queen as you do. Ah, and they allow marriages for non-citizens. Including same-sex couples. You can also get married in the US while on a tourist visa, and then go back home to do the IR1. – littleadv May 09 '14 at 03:58

2 Answers2

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Would this include working remotely for a foreign employer whilst being paid into a foreign account?

Yes. You're not allowed to work in the US, not for a US employer.

You'll get your EAD within 3 months, most likely.

littleadv
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  • Just to confirm, I will be required to remain unemployed for up to three months following my arrival and there's absolutely nothing I can do to avoid that? – Gary May 08 '14 at 08:21
  • @Gary basically, yes. – littleadv May 08 '14 at 08:29
  • Well bugger. Thank you for your answer. No wonder they're so worried about people becoming wards of the state - who can afford to be unemployed for 3 months?! – Gary May 08 '14 at 08:36
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    @Gary wards of the state? What are you talking about? You're not getting any assistance from your state. Your spouse signed a paper that she/he will take care of all your needs. – littleadv May 08 '14 at 08:39
  • Precisely to keep immigrants from becoming wards of the state. Now I see why they're so worried - three months of unemployment is surely enough to have most middle-class earners up against the ropes, no? – Gary May 08 '14 at 22:20
  • 3 months, yes. But not 3 months after arrival -- it's 3 months after applying for EAD. But they can only apply for EAD at the same time as or after applying for Adjustment of Status, and they can only do that after marrying and getting all the required documents (marriage certificate often takes weeks after marriage to get). – user102008 May 09 '14 at 09:08
  • @littleadv: "Your spouse signed a paper that she/he will take care of all your needs." The I-134 (affidavit of support for nonimmigrant visas including K-1) is not legally binding. – user102008 May 09 '14 at 09:09
  • @user102008 Says who? http://www.law.cornell.edu/uscode/text/8/1183a – littleadv May 09 '14 at 09:13
  • @littleadv: I believe that is talking about I-864s, not I-134s. http://www.uscis.gov/sites/default/files/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-12693/0-0-0-13496.html?topic_id=0 "Such affidavits, although helpful in judging financial ability, are not legally binding." http://blogs.usembassy.gov/philippines/?p=808 "joint sponsors in nonimmigrant visa cases are not legally bound to address the financial needs of the applicant and are, therefore, not always sufficiently credible to overcome the public charge provisions" – user102008 May 09 '14 at 18:25
  • @user102008 I quoted the statute. You responded with a dead link and a blog (which talks about a different issue entirely). – littleadv May 10 '14 at 04:34
  • @littleadv: The link is correct and was working. The manual part of the USCIS site has been randomly not working a lot of the time recently. I cited section 30.8 of the Adjudicator's Field Manual which explicitly says affidavits of support for nonimmigrants (I-134) are not legally enforceable. – user102008 May 10 '14 at 07:22
  • @littleadv: The statute you cited is not relevant because K nonimmigrants are simply not asked to provide an enforceable affidavit of support (the I-864). Here's the section from the Foreign Affairs Manual: http://www.state.gov/documents/organization/86988.pdf 9 FAM 40.41 N4.4-3(d). Only certain classes of immigrant visa applicants are required by INA 212(a)(4) to provide an affidavit of support under INA 213A (the statute you cited). K nonimmigrants are not among them. – user102008 May 10 '14 at 07:23
  • @user102008 Isn't I864 part of the I485 package for family based cases? – littleadv May 10 '14 at 07:51
  • @littleadv: Right, but that's after the K-1 fiance comes to the U.S., gets married, files I-485 (with the citizen spouse's I-864), which may or may not actually happen. At the K-1 nonimmigrant stage, the person can still become a public charge. – user102008 May 11 '14 at 02:35
  • @user102008 not really, K-1 is only valid for 90 days... After that - he's either in AOS process (i.e.: I864 submitted), goes back to Australia or becomes illegal. – littleadv May 11 '14 at 02:38
  • @littleadv: Yes, they can become illegal and become a public charge. – user102008 May 11 '14 at 02:41
  • But then they're no longer K-1... BTW illegals, to the best of my knowledge, cannot be public charge (despite what Republicans are trying to tell everyone...) – littleadv May 11 '14 at 02:48
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You are not allowed to work in the USA, until either your permanent residency is granted or you have been granted Employment Authorization to work while your permanent residency application is pending. This is regardless of whether you are being paid by a local US firm or from outside the USA.

VisaCoach
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  • At some point, the nations of the world are going to have to come to terms with this concept of working remotely and adjust their immigration policies accordingly. It's just becoming much more and more common. – ouflak Jul 07 '16 at 19:54