1099 versus W2
- Thread starter robi
- Start date
robi:
Everybody provides their 2 cents claiming that ONLY W2 is valid for using AC21.
OK, now here's my 2 cents:
I've asked several people on this forum whether they can provide written proof (INS/CIS Memo or Web Page) that only W2 is valid, and believe me, NOBODY has been able to provide that.
We were in a similar situation where we were working on 1099. If you notice the RFE text, it asks for W2/1099, which clearly means that one can work on 1099 since EAD allows you to work as an independent contractor/consultant.
My opinion is that as far as possible, to avoid any CIS hassles, it's better to work on a W2. But if that's a problem even a 1099 should be OK, at least it's better to be employed than not. IRS (not INS) has a 20-point rule about employee-employer relationship. If push comes to shove, if you can prove that an employee-employer relationship does exist then your 1099 is considered equivalent to W2. The implications are that your employer is going to be mighty pissed off since they would need to shell out their share of FICA (Medicare & SS taxes). While working on 1099 they don't pay a dime of FICA, so they save a ton of $$. Anyway, hope you get the gist.
Everybody provides their 2 cents claiming that ONLY W2 is valid for using AC21.
OK, now here's my 2 cents:
I've asked several people on this forum whether they can provide written proof (INS/CIS Memo or Web Page) that only W2 is valid, and believe me, NOBODY has been able to provide that.
We were in a similar situation where we were working on 1099. If you notice the RFE text, it asks for W2/1099, which clearly means that one can work on 1099 since EAD allows you to work as an independent contractor/consultant.
My opinion is that as far as possible, to avoid any CIS hassles, it's better to work on a W2. But if that's a problem even a 1099 should be OK, at least it's better to be employed than not. IRS (not INS) has a 20-point rule about employee-employer relationship. If push comes to shove, if you can prove that an employee-employer relationship does exist then your 1099 is considered equivalent to W2. The implications are that your employer is going to be mighty pissed off since they would need to shell out their share of FICA (Medicare & SS taxes). While working on 1099 they don't pay a dime of FICA, so they save a ton of $$. Anyway, hope you get the gist.
Just wanted to add a couple of clarifications.
RFE request format is same for all 485 applications, so it having 1099 or W2 could mean it is for NIW category, where it is not tied to a particular employer.
If we go strictly by law, when 485 is for a future job, what is the need for RFE for W2 in the first place, especially when one is using EAD.
So, in general sense for an Employment Based GC application, they require that we prove it is permanent and continuous employment which can't be proved by 1099 [which is normally related to independent contractor]. I am not suggesting that it makes sense, but it is INS interpretation. So, the suggestions.
With INS, it is always better to be cautious than sorry later. Again my 2 cents.
RFE request format is same for all 485 applications, so it having 1099 or W2 could mean it is for NIW category, where it is not tied to a particular employer.
If we go strictly by law, when 485 is for a future job, what is the need for RFE for W2 in the first place, especially when one is using EAD.
So, in general sense for an Employment Based GC application, they require that we prove it is permanent and continuous employment which can't be proved by 1099 [which is normally related to independent contractor]. I am not suggesting that it makes sense, but it is INS interpretation. So, the suggestions.
With INS, it is always better to be cautious than sorry later. Again my 2 cents.
Thanks guys.
I wander if anybody had RFE and worked on 1099 actually
and didn't have a problem with that. Logicaly it shouldn't be,
but we know that logic is not the strongest feature in this country. It is supposed to be a future job anyway so what for
paystubs are asked??? According to my lawyer I could even
not be working at all, as long as I have letter with offer from future employer.
I wander if anybody had RFE and worked on 1099 actually
and didn't have a problem with that. Logicaly it shouldn't be,
but we know that logic is not the strongest feature in this country. It is supposed to be a future job anyway so what for
paystubs are asked??? According to my lawyer I could even
not be working at all, as long as I have letter with offer from future employer.
1099 ??
What I understand is, if you have EAD then you can work more then 1 place i.e you can work on 1099. (second job). In that case when RFE is issued you have to submit both W2 & 1099.
If you want to take unnecessary risk you are always welcome to work on 1099.
If you are very lucky then even if you don't work you'll get approve.
What I understand is, if you have EAD then you can work more then 1 place i.e you can work on 1099. (second job). In that case when RFE is issued you have to submit both W2 & 1099.
If you want to take unnecessary risk you are always welcome to work on 1099.
If you are very lucky then even if you don't work you'll get approve.