Employment Under H4 Status

[merche123]

Hello,

I have been a 'behind the curtains' follower of this thread for a while now and greatly appreciate the analysis on this forum. I am sorry about posting my question here. Please do redirect if it is not appropriate here. I am hoping someone will be able to answer, so here goes.

I graduated some months back (PhD). After an unfortunate misstep, I am staring at the (awful) possibility of the dependent visa. But I also have some nice offers from international development orgs. My question is this- can I work outside the US while on a H4 and make 'frequent' visits back home? What are the rules of H4 work in the US? Can I get paid for contractual positions outside? Is it just that a salary slip shouldn't be generated when I'm on US soil? I tried reading up but don't find clear information anywhere.

It will be great if someone can answer or point me in the right direction. Thanks!

[Spectator]

Hello,

I have been a 'behind the curtains' follower of this thread for a while now and greatly appreciate the analysis on this forum. I am sorry about posting my question here. Please do redirect if it is not appropriate here. I am hoping someone will be able to answer, so here goes.

I graduated some months back (PhD). After an unfortunate misstep, I am staring at the (awful) possibility of the dependent visa. But I also have some nice offers from international development orgs. My question is this- can I work outside the US while on a H4 and make 'frequent' visits back home? What are the rules of H4 work in the US? Can I get paid for contractual positions outside? Is it just that a salary slip shouldn't be generated when I'm on US soil? I tried reading up but don't find clear information anywhere.

It will be great if someone can answer or point me in the right direction. Thanks!

merche123,

Welcome to the forum.

When in H4 status, you may not be employed (including on-line employment or working for free) and are limited to purely voluntary activities where no person would ever be paid or receive any other form of compensation.

You are only in H4 status when physically present in the USA, having been admitted using your H4 visa.

The moment you depart the USA, you are no longer in H4 status and can carry out any employment you wish.

You may be paid for any work undertaken while you were physically outside the USA.

It doesn't matter if the payment is generated when you are back in the USA, but you should document the period the payment relates to and that you were not physically present in the USA in H4 status during that period.

There is no requirement for "frequent" visits home to maintain eligibility for H4.

[justvisiting]

The "common knowledge" on the internet is that you cannot do any kind of work while physically in the U.S. The pertient regulations talk about "employment". Here is the definition of employemnt according to 8 CFR:
h) The term employment means 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 codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

[CleanSock]

Hello,

I have been a 'behind the curtains' follower of this thread for a while now and greatly appreciate the analysis on this forum. I am sorry about posting my question here. Please do redirect if it is not appropriate here. I am hoping someone will be able to answer, so here goes.

I graduated some months back (PhD). After an unfortunate misstep, I am staring at the (awful) possibility of the dependent visa. But I also have some nice offers from international development orgs. My question is this- can I work outside the US while on a H4 and make 'frequent' visits back home? What are the rules of H4 work in the US? Can I get paid for contractual positions outside? Is it just that a salary slip shouldn't be generated when I'm on US soil? I tried reading up but don't find clear information anywhere.

It will be great if someone can answer or point me in the right direction. Thanks!

Not sure how long this is going to take or how much truth there is to it, but this may be of some interest to you.

From http://www.immigration-law.com published today

12/11/2012: BRAVO! USCIS Has Just Commenced a Process Seeking White House Approval for H-4 Employment Authorization Proposed Rule!

What a wonderful news for the H-1B professional families! USCIS has just initiated the rule making process for proposed H-4 employment authorization rule. Hats off to the USCIS leaders!!
As we published last year, this rule proposes extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies.
It is going to take a little bit of time for this proposed rule to complete the rule-making process, but it is a fantastic news that after over a year since the plan was published in the Fall 2011 Semi-Annual Rule Making Agenda, the agency is finally starting to implement it from a stage of a plan to actual rule-making process. We have the best leadership in the INS/USCIS history!

[qesehmk]

I am amazed justvisiting by the definition in that it excludes domestic labor! Quite interesting. Thanks for the definition.

Marche - I think Spec is at least 99% right. The only place I think there may be some doubt is about work for not for profits - where you probably can accept payment. And the reason I think that is possible because - the H1 for not for profit doesn't come from the H1 quota. I am not sure but you may want to investigate if you are going to work for a not for profit.

Another thing you may want to explore is - run this thing as a business and provide services to this company as opposed to be their employee. I think that should be ok but just check with a lawyer.

[Spectator]

The only place I think there may be some doubt is about work for not for profits - where you probably can accept payment. And the reason I think that is possible because - the H1 for not for profit doesn't come from the H1 quota. I am not sure but you may want to investigate if you are going to work for a not for profit.

Q,

That just means the H1B is exempt from the Cap. They would still need an H1B approval to work for them. They couldn't do so under H4 status.

[merche123]

Thanks all for the responses!

Spec, thank you so much for the clarification. Puts a lot into perspective before I talk to these people about the kind of commitment I can make.

CleanSock, thats wonderful news- if it gets done! I wish I had more faith in the system to take that on face value and stop worrying

Q, thank you for your suggestion about running it as a business. I will definitely check with a lawyer.

[justvisiting]

The definition is a mess isn't it? I think the "cautious" interpetation is you cannot work. However, this is a fuzzy area and the case law is very limited. See below, for example:

http://www.nationofimmigrators.com/e...en-you-see-it/

This may be a topic for CIR

[vizcard]

1. You cannot work professionally or get paid while on H4 and physically in the US
2. You can do volunteer work IF
(a) the job is not created specifically for you
(b) it is intermittent (I take that to mean part time)
(c) it is unpaid. This includes any benefits like free meals, free merchandise, free anything...
(d) the org is non-profit

There are really 3 ways to see if you meet the criteria
1. Ask a lawyer
2. See if the job needs you to provide Employment Authorization documentation. If yes, you cannot work (obviously).
3. See if you get anything in return for your services. If yes, then you cannot work.

[merche123]

Hi All,

I had raised this question some days back regarding the exact rules for maintaining the H4 status and being employed abroad.

I am going to accept the position and work as a consultant rather than a full time employee. My employer plans to offer me a contract for the months I need to work and terminate it before I return to the US so I am not employed when on US soil. This of course means I don't get any full time employee benefits, have to file IT returns abroad etc. Not to mention most of what I earn will go into the pockets of some airlines But the positives are I'm excited, my family is very supportive and the job profile is great.

I suppose with this I won't be violating any H4 requirements!


Thanks!

[qesehmk]

merche,

That sounds reasonable. Wish you the very best!

Hi All,

I had raised this question some days back regarding the exact rules for maintaining the H4 status and being employed abroad.

I am going to accept the position and work as a consultant rather than a full time employee. My employer plans to offer me a contract for the months I need to work and terminate it before I return to the US so I am not employed when on US soil. This of course means I don't get any full time employee benefits, have to file IT returns abroad etc. Not to mention most of what I earn will go into the pockets of some airlines But the positives are I'm excited, my family is very supportive and the job profile is great.

I suppose with this I won't be violating any H4 requirements!


Thanks!

[qesehmk]

Marche,

I think there are two key considerations here for you to avoid any future problems.

1. Is the payment being made for labor or for professional services. The latter is better since you can claim that as business income - which an H4 can have IMHO. An H4 can't have W2 for sure. I am sure an H4 can have Dividend or Interest income (i.e. -1099-DIV and 1099-INT). You may want to check if an H4 can report 1099-MISC. I think if that is ok then the company in question can have you in US provide you the services in US or outside and issue 1099-MISC for the payments made to you.
2. If 1099-MISC is not okay - the company can still avail of your services or employ you outside of US. But in that case - either of those - should be done by a legal entity outside the US. In simple words - you need to be employed or contracted and paid by the branch of this US company.

Then of course effectively when you go outside - you have no US status (unless if you have AP). So when you enter US each time - each time you are restarting your H4 status until your underlying H4 expires.

p.s. - I still think you should simply seek advice of the company lawyers.

[merche123]

Hi All,

I think this is slightly more complicated than I figured it out to be. I do need to talk to a lawyer. On a H4 and a contract outside the US, I realized the interpretation may be that I need to 'finish' all my work before coming back to the US. That I would need to clarify with my employer. They are willing to reinstate the contract every time I go back. And I don't know if I should be over thinking this considering my employer is going to be a small not for profit entity outside the US working on human development.

And regarding timeline, I am already in the US and about to complete my OPT in a few months. I would need to get my H4, leave and re-enter after my contract abroad terminates every time. Some of these H4 restrictions are so mind boggling.

Thanks Q and sportsfan for the points you brought up. I am going to discuss those with the lawyer as well. I will keep you all posted!