Working online in Australia whilst in USA on K-1 Visa

[Superdoom]

G’day everyone,

I have searched the forums but cannot find a similar question. I have quite a high paying online job in Australia for an Australian company. I will be headed to the USA soon to marry my fiancé and still am unsure if I can remain working for this company before getting my EAD. I skimmed through the legislation but cannot find an answer there either. Anyone have any expertises or opinions?

Best wishes.

[Mike E]

You cannot do that until you have your EAD or I-551.

[Superdoom]

Dang it, I was hoping for a loop hole because I wouldnt’t be employed within the USA. So no working period, huh?

[Mike E]

Dang it, I was hoping for a loop hole because I wouldnt’t be employed within the USA. So no working period, huh?

My wife owned a business in her country when she had her K-1 interview. She was asked by the CO what she would be doing with her business if she got the visa. Her response: "I am going to sell the business to my brother". This was the correct response, and she got the visa.

The incorrect response would have been: "I am going to manage it from the USA".

[Superdoom]

I think I understand. So did she still technically work while on her K-1?

I’m thinking I’m not “working in the USA” I’m “employed internationally”?

[Mike E]

She did not work while she had her K-1. She did not do any work until she got her EAD. She did indeed turn her business over to her brother. She has not violated her visa or pending AOS conditions and nor will she.

You can think all you want that you “are not working in the USA”. You are and during AOS interview it will become apparent when they see your IRS tax returns. Unless your plan is to commit tax fraud too.

This is why we cannot have nice things.

[Superdoom]

Fair enough, but the tax returns only tell the AOS officer that I had an income and where from. If it is from outside the USA, there is no law against that.

[newacct]

If it is from outside the USA, there is no law against that.

There is a regulation that says people in nonimmigrant status cannot work unless they are authorized to work, though unauthorized work does not affect AOS in your category.

[Superdoom]

Really? Could you link the regulation because internet was my understanding this only extended to being employed by a USA employer.

[newacct]

8 CFR 214.1(e):

(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.

[Superdoom]

Right, but the Code of Federal Regulations does not apply here because according to CFR 247a.1 (h) employment is defined as “... 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”.

Correct?

[newacct]

Right, but the Code of Federal Regulations does not apply here because according to CFR 247a.1 (h) employment is defined as “... 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”.

Correct?

Those definitions only apply to 8 CFR part 274a

[Superdoom]

Right, and Title 8 is all about aliens and their employment, yes? So this definition applies to my employment as an alien, and so to be legally employed within the USA I would have to be employed by a USA employer.

[newacct]

Right, and Title 8 is all about aliens and their employment, yes? So this definition applies to my employment as an alien, and so to be legally employed within the USA I would have to be employed by a USA employer.

The definitions in 8 CFR 274a.1 only apply "For the purpose of this part", which is 8 CFR part 274a, not Title 8.

[Superdoom]

Does the 8 you refer to no(t) mean “Title 8”? As I understand that definition applies to all mentions of employment, because I don’t know of another legal definition of employment with(in) the CFR?

EDIT: added in brackets for grammar