How long can we stay outside on H-1B?

[krishere1982]

Hi all,

My US company is not willing to let me work from Canada (company politics). But they let me work from home in US. My plan is to maintain my work location in US at my friend's house and work remotely in Canada. This way, my company won't have to literally transfer my job and can do everything as they are doing for me now - pay, benefits etc. I am going to discuss this with my company.

My concern is how often should I enter US? I have read many threads/posts where people have done it as frequent as once a week to once a year. I am thinking of coming to US once in like 4 months and work here for a week and then go back, just to salvage my H-1B. Does that seem reasonable enough to not have too much of a hard time at US border or denial to enter US?

I am thinking when it comes to tax filing in Canada, I would file it as someone "earning income from a foreign company". I have not looked into this in detail, but I am guessing there must be an option for this and won't this be same as those filing taxes in Canada who live in Windsor and work in Detroit?

Your valuable inputs are greatly appreciated.

Thank you.

 

[harirajmohan]

Hi all,

My US company is not willing to let me work from Canada (company politics). But they let me work from home in US. My plan is to maintain my work location in US at my friend's house and work remotely in Canada. This way, my company won't have to literally transfer my job and can do everything as they are doing for me now - pay, benefits etc. I am going to discuss this with my company.

My concern is how often should I enter US? I have read many threads/posts where people have done it as frequent as once a week to once a year. I am thinking of coming to US once in like 4 months and work here for a week and then go back, just to salvage my H-1B. Does that seem reasonable enough to not have too much of a hard time at US border or denial to enter US?

I am thinking when it comes to tax filing in Canada, I would file it as someone "earning income from a foreign company". I have not looked into this in detail, but I am guessing there must be an option for this and won't this be same as those filing taxes in Canada who live in Windsor and work in Detroit?

Your valuable inputs are greatly appreciated.

Thank you.

I am not clear as i am not sure about some of the below information hence i could not reply on what you are trying to ask.
Which state you will be working, i mean the friend's location is a border city/state? I am trying to see if you can commute daily to maintain status(if you are really needing to maintain).
Will you have work authorization to work from your friend's location? Is this location different than the one mentioned in H1 approval, if so then you should see how you can manage as you might get into trouble if they find that you are working in different location than the one you received approval for. So plan it well.

If you travel once in 4 months then you need to request for status each time(as you cannot maintain the status with 30+ days absence from the last entry). Its not a big deal, frequency of travel doesnt matter as long as you have enough documents to prove that you have job in US.

Taxes: Not a big deal. But the tax is same as who commutes daily from Windsor to Detroit or from Yukon to Texas. Taxes are not based on distance we commute.

 

[krishere1982]

Hi,

I am working from home in Texas for which my H-1 extension is pending. My friend's place is also in Texas, so am thinking that I can use that as my work location in US as far as H-1 is concerned. His place is in the same MSA as my work location mentioned on the H-1 extension that is pending, so I think no change would be needed there.

I want to live and work from SK in Canada, as I got my PR because of nomination by SK. But I have read online that there could be a "compliance" issue as my US company will be paying me (Canadian permanent resident). I am concerned that my company would be offended if I bring this up to them, if this is indeed a compliance issue. I saw online that if I work in Canada for the US company, then it has to be through a PEO (professional employer organization). Seems like working through PEO would take care of the compliance issues. I talked to a PEO agency and they told me that my US company would need to pay them, which I am pretty sure my company won't agree to.

If I was to travel once in 4 months to US from Canada, what documents should I carry to increase my chances of entry into US? I am thinking - passport with H-1 stamp, I-797, I-94, latest paystubs, latest 3 years of W-2s and US income tax filings. My company doesn't provide employment verification letters anymore. Is there any other document that will help?

Thanks much.

 

[harirajmohan]

Hi,

I am working from home in Texas for which my H-1 extension is pending. My friend's place is also in Texas, so am thinking that I can use that as my work location in US as far as H-1 is concerned. His place is in the same MSA as my work location mentioned on the H-1 extension that is pending, so I think no change would be needed there.

I want to live and work from SK in Canada, as I got my PR because of nomination by SK. But I have read online that there could be a "compliance" issue as my US company will be paying me (Canadian permanent resident). I am concerned that my company would be offended if I bring this up to them, if this is indeed a compliance issue. I saw online that if I work in Canada for the US company, then it has to be through a PEO (professional employer organization). Seems like working through PEO would take care of the compliance issues. I talked to a PEO agency and they told me that my US company would need to pay them, which I am pretty sure my company won't agree to.

If I was to travel once in 4 months to US from Canada, what documents should I carry to increase my chances of entry into US? I am thinking - passport with H-1 stamp, I-797, I-94, latest paystubs, latest 3 years of W-2s and US income tax filings. My company doesn't provide employment verification letters anymore. Is there any other document that will help?

Thanks much.

Per my experience, there is no compliance issue, i too received payments for months while in India. Actually you dont want CAD payment while they are ok for US payment anyway. So it seems this is not a problem.

Travel docs: These should be enough but it seems like you will be commuting/traveling less frequent without your company's knowledge. If so then you should be careful as sometimes they might even verify about your whereabouts and your employment and it would be a problem whenever your employer responds saying you stay in US in Texas. All cbp needs to know is that there is a job available for you but dont know if they will ask for a letter or the recent paystubs would be enough. So its better to pay some good lawyer few bucks and get some clear advice.

 

[Samoinp]

Per my experience, there is no compliance issue, i too received payments for months while in India. Actually you dont want CAD payment while they are ok for US payment anyway. So it seems this is not a problem.

Travel docs: These should be enough but it seems like you will be commuting/traveling less frequent without your company's knowledge. If so then you should be careful as sometimes they might even verify about your whereabouts and your employment and it would be a problem whenever your employer responds saying you stay in US in Texas. All cbp needs to know is that there is a job available for you but dont know if they will ask for a letter or the recent paystubs would be enough. So its better to pay some good lawyer few bucks and get some clear advice.

+1

Don't try anything without your employer's knowledge. ICE can technically visit even though it has mostly been for illegal immigrants. It is not worth it, play by the book.

https://www.ice.gov/features/worksite-enforcement

 

[Samoinp]

+1

Don't try anything without your employer's knowledge. ICE can technically visit even though it has mostly been for illegal immigrants. It is not worth it, play by the book.

https://www.ice.gov/features/worksite-enforcement

Not to mention, your employer can technically even access your travel history. It is a public site with minimum security. The info needed to query is something your employer/lawyer already have.

https://i94.cbp.dhs.gov/I94/#/history-search

 

[krishere1982]

Per my experience, there is no compliance issue, i too received payments for months while in India. Actually you dont want CAD payment while they are ok for US payment anyway. So it seems this is not a problem.

Travel docs: These should be enough but it seems like you will be commuting/traveling less frequent without your company's knowledge. If so then you should be careful as sometimes they might even verify about your whereabouts and your employment and it would be a problem whenever your employer responds saying you stay in US in Texas. All cbp needs to know is that there is a job available for you but dont know if they will ask for a letter or the recent paystubs would be enough. So its better to pay some good lawyer few bucks and get some clear advice.

No, I am going to discuss it with my company (HR and managers) about my plan to work from SK and traveling to US once every 4 months. I never said I was going to do this without my company's knowledge.

How many months were you getting paid in USD in US when you were working in India? My colleague/friend was working for 2 months from India, as he had to stay there for a family situation, and that time my company was okay paying him for that period in US in USD. Not sure if they will be okay with paying me for extended periods of time when am working from Canada.

 

[Samoinp]

No, I am going to discuss it with my company (HR and managers) about my plan to work from SK and traveling to US once every 4 months. I never said I was going to do this without my company's knowledge.

How many months were you getting paid in USD in US when you were working in India? My colleague/friend was working for 2 months from India, as he had to stay there for a family situation, and that time my company was okay paying him for that period in US in USD. Not sure if they will be okay with paying me for extended periods of time when am working from Canada.

Okay, gotcha but just by the request its seems like a no go. If they follow form I-9 guidelines, they shouldn't misrepresent work location to USCIS.

 

[harirajmohan]

No, I am going to discuss it with my company (HR and managers) about my plan to work from SK and traveling to US once every 4 months. I never said I was going to do this without my company's knowledge.

How many months were you getting paid in USD in US when you were working in India? My colleague/friend was working for 2 months from India, as he had to stay there for a family situation, and that time my company was okay paying him for that period in US in USD. Not sure if they will be okay with paying me for extended periods of time when am working from Canada.

4 months each in two separate trips. Lot of top executives payroll is based on USD.
Anyway it doesnt matter as they are ok for US payroll hence dont bring the payment as an issue. Try to get permission to commute which is important even if the travel is restricted to once a month.

 

[krishere1982]

Okay, gotcha but just by the request its seems like a no go. If they follow form I-9 guidelines, they shouldn't misrepresent work location to USCIS.

But it is confusing. I mean, when I am in US (which is one week every 4 months), my work location will be in Texas, which is according to what will be on my H-1. Other times, I am not even working in US, so how will it be misrepresentation of form I-9?

This is the first line in https://www.uscis.gov/i-9 which explains what I-9 is : Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Do we know if there is any rule/law which says as to how many days we "have" to be in US on H-1 in order to maintain H-1?

 

[krishere1982]

4 months each in two separate trips. Lot of top executives payroll is based on USD.
Anyway it doesnt matter as they are ok for US payroll hence dont bring the payment as an issue. Try to get permission to commute which is important even if the travel is restricted to once a month.

The challenge for me is to get my company to let me work from Canada(SK). If they will let me work from Canada, then I think they won't really care how often I would be visiting US. I think I want to visit at least once in 4 months for a week, just to try to hold on to my H-1.

Do we know if there is any rule/law which says as to how many days we "have" to be in US on H-1 in order to maintain H-1?

 

[Samoinp]

But it is confusing. I mean, when I am in US (which is one week every 4 months), my work location will be in Texas, which is according to what will be on my H-1. Other times, I am not even working in US, so how will it be misrepresentation of form I-9?

This is the first line in https://www.uscis.gov/i-9 which explains what I-9 is : Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Do we know if there is any rule/law which says as to how many days we "have" to be in US on H-1 in order to maintain H-1?

By form-9, I meant an employer following all rules. Work location is sensitive these days especially with respect to employee-employer relationship complicated by third party providers etc. Might not be applicable to you but if your employer is willing to hear your case, they would give you a better idea. You can also try booking a consultation with a lawyer.

 

[harirajmohan]

I think I want to visit at least once in 4 months for a week, just to try to hold on to my H-1.
Do we know if there is any rule/law which says as to how many days we "have" to be in US on H-1 in order to maintain H-1?

No restriction on number of days you have to stay in US.
Why do you want to maintain H1? The remaining H1 days can be sought by any employer if one did not use all 6 years(6x365 days minus number of days stayed in US) or if one is having labor(filed 365 days prior to renewal date) or 140 approved. So not sure what you mean by maintaining H1.

One can only maintain H1 status if he/she enters every 30 days. Absent of more than 30 days will lead to requesting H1 status.

 

[krishere1982]

By form-9, I meant an employer following all rules. Work location is sensitive these days especially with respect to employee-employer relationship complicated by third party providers etc. Might not be applicable to you but if your employer is willing to hear your case, they would give you a better idea. You can also try booking a consultation with a lawyer.

Yeah, after my call with the HR and the managers, the attorneys that are working for the company will be roped in for sure.

 

[krishere1982]

No restriction on number of days you have to stay in US.
Why do you want to maintain H1? The remaining H1 days can be sought by any employer if one did not use all 6 years(6x365 days minus number of days stayed in US) or if one is having labor(filed 365 days prior to renewal date) or 140 approved. So not sure what you mean by maintaining H1.

One can only maintain H1 status if he/she enters every 30 days. Absent of more than 30 days will lead to requesting H1 status.

I think I need to maintain the H1 status because that is needed for me to be employed (getting paid). I already have my 140 approved.

I don't understand your last sentence " Absent of more than 30 days will lead to requesting H1 status. " - can you please rephrase or explain if you don't mind?

Thanks.