#### Is This Legal? Gurus Please Help ####

[fast_gc_seeker]

Here is my situation...

My I485 is pending since a year. I've valid EAD and AP. I used to work for a US company but recently returned back to India permanently for personal reasons. I got a new job with an Indian company who wants me to visit USA again for 2-3 months initially and then work from India. They will pay me allowanace[similar to B1/B2 visa holders] during my stay in US. This allowance is not subject to any US taxes. I've NO intentions to settle in US permanently.

Here is my question....

I plan to use AP for entering US .Is it legal for somebody like me whose I 485 is pending to get paid allowance similar to business visa[B1/B2] holders? [This allowance is not subjected to any US taxes].

Please help

 

[tammy2]

Here is my situation...

My I485 is pending since a year. I've valid EAD and AP. I used to work for a US company but recently returned back to India permanently for personal reasons. I got a new job with an Indian company who wants me to visit USA again for 2-3 months initially and then work from India. They will pay me allowanace[similar to B1/B2 visa holders] during my stay in US. This allowance is not subject to any US taxes. I've NO intentions to settle in US permanently.

Here is my question....

I plan to use AP for entering US .Is it legal for somebody like me whose I 485 is pending to get paid allowance similar to business visa[B1/B2] holders? [This allowance is not subjected to any US taxes].

Please help

Do you have an valid EAD? If yes you can do that. You need to pay the taxes if it is paid as salary.

Getting business visa is tough if you have not abandened the GC.

 

[fast_gc_seeker]

Do you have an valid EAD? If yes you can do that. You need to pay the taxes if it is paid as salary.

Getting business visa is tough if you have not abandened the GC.

Yes, I do have 'valid' EAD based on my pending I485 which I've not abandoned.

Does it mean I can work using my EAD and get paid in form of allowance and not pay any taxes? [please read original post for details]

 

[akatu]

Hey

I do not think that it is legal. There is a special tax treaty regarding to avoid double taxation b/w countries. As I remember there is a residency test and occupation test to qualify, like 180 days and F1 /J1. You easily can find it on-line. BTW just curious, how would they know that you are paid from outside of US if nobody files W2 for you?

 

[fast_gc_seeker]

I do not think that it is legal. There is a special tax treaty regarding to avoid double taxation b/w countries. As I remember there is a residency test and occupation test to qualify, like 180 days and F1 /J1. You easily can find it on-line. BTW just curious, how would they know that you are paid from outside of US if nobody files W2 for you?

My employer intends to pay me allowance[similar to business visa holders]. This allowance is neither W2 nor 1099 so its not subjected to any taxes.

Can I get paid allowance while being in AOS status and working on EAD?

 

[pralay]

I plan to use AP for entering US .Is it legal for somebody like me whose I 485 is pending to get paid allowance similar to business visa[B1/B2] holders? [This allowance is not subjected to any US taxes].

Getting paid as allowence is irrelevent here. Is your new employer (or other US employer) is willing to give you a job in USA (not India)? If so, using AP is perfectly legal. But if you have no US job offer in hand, the the situation gets tricky. My assumption is that you can use AP to reenter as long as your I-485 is pending. But my asummption could be wrong.

As a side note, if you don't have US job offer in hand, you always run into risk of I-485 denial (and that makes AP invalid).

 

[pralay]

Can I get paid allowance while being in AOS status and working on EAD?

My understanding is that your employer is not going to put you in US payroll (if they have US office at all). If you are not in US payroll, are not "working on EAD".

 

[TheRealCanadian]

If you are not in US payroll, are not "working on EAD".

If you're working in the US, you're on the EAD. Where you get paid is irrelveant. I don't see how he can escape US taxation unless he withdraws the I-485 and enters on a B1.

 

[fast_gc_seeker]

My understanding is that your employer is not going to put you in US payroll (if they have US office at all). If you are not in US payroll, are not "working on EAD".

Correct, I'll not be on US payroll. My employer intends to pay be allowance for my personal expenses and my Indian salary will also continue. Does this mean I'll not be using EAD and hence dont have to pay taxes?

This is excatly similar to Business visa holders who get paid allowance and their Indian salary also continues.

If you're working in the US, you're on the EAD. Where you get paid is irrelveant. I don't see how he can escape US taxation unless he withdraws the I-485 and enters on a B1.

I'll be legally present in US as I'll be using AP to enter US. I'll not be on US payroll and hence my company will pay be allowance or per-diem and thats why they say its not subjected to any US taxes. Please help me in understanding this situation.

 

[akatu]

My employer intends to pay me allowance[similar to business visa holders]. This allowance is neither W2 nor 1099 so its not subjected to any taxes.

Can I get paid allowance while being in AOS status and working on EAD?

Again, read in to tax treaty.
1.Even students on their foreign government stepend have to pay , though may exempt some amount unless it is written in the tax treaty otherwise.
2. I do not understand your intentions: do you want to keep AOS running or you abandoning 485?
In the first case you have to pay because you work in US, in the 2nd- you cannot use AP.
If you are not going to proceed with 485, then who cares, nobody ever ask you. But I doubt you will be able to obtain B1 visa.

 

[TheRealCanadian]

I'll be legally present in US as I'll be using AP to enter US. I'll not be on US payroll and hence my company will pay be allowance or per-diem and thats why they say its not subjected to any US taxes. Please help me in understanding this situation.

I'd definitely suggest you keep the EAD alive. From a tax perspective, you'd probably want to ensure that your past presence in the US doesn't cause you to meet SPT. If you meet SPT I guess your worldwide income would be subejct to US taxation.

 

[fast_gc_seeker]

I'd definitely suggest you keep the EAD alive. From a tax perspective, you'd probably want to ensure that your past presence in the US doesn't cause you to meet SPT. If you meet SPT I guess your worldwide income would be subejct to US taxation.

Yup, I'll keep my EAD alive and also renew it time to time. what is SPT?

Well, I was doing some research and found that if allowance is paid as 'per diem' and is within the limits defined by federal govt then such per diem allowances are not taxable and need not be reported on W2.

http://www.adp.com/taxfin/newsletter/taxres/pdf/sept2005_1.pdf

http://www.irs.gov/pub/irs-regs/perdiemfaq&a.prn.pdf

Please check above links for some per diem information.

I was linking the taxes with immigration and thats why I was confused. From what I read I understand that per diem rules are same for everybody irrespective of their immigration status in US. In my case this means I'll be legal in US since my 485 is pending and not subject to any taxes until myself and my employer follow rules set for per diem.

 

[TheRealCanadian]

Yup, I'll keep my EAD alive and also renew it time to time. what is SPT?

Substantial Presence Test.

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States on at least:

31 days during the current year, and

183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting All the days you were present in the current year, and 1/3 of the days you were present in the first year before the current year, and 1/6 of the days you were present in the second year before the current year.

 

[fast_gc_seeker]

Substantial Presence Test.

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States on at least:

31 days during the current year, and

183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting All the days you were present in the current year, and 1/3 of the days you were present in the first year before the current year, and 1/6 of the days you were present in the second year before the current year.

I'm aware of about Substantial Presence Test as i read it on irs.gov. This applies only when earnings are reported on W2. If you read document links posted above, it will say that if companies pay by per diem and if its within limits defined by federal govt then such wages are not subjected to taxes.

I had colleagues from big Indian companies coming to US on business visas for 2-3 months for work. They were also paid by per diem and never paid any US taxes.

The whole point of this thread was for me to confirm that there is no connection between type of US visa and taxes. ie per diem rules are not different for business visas holders and AOS folks.

 

[akatu]

Hey

The fact that your indian friends are not paying means only that a lot of folks are not paying all taxes correctly and get away with that.
Your Q was if it is leagal or not, but not how you can get away with out paying. Of cause, if there was no W2, they would not know unless some kind sole report to IRS on you.

 

[TheRealCanadian]

I'm aware of about Substantial Presence Test as i read it on irs.gov. This applies only when earnings are reported on W2

Here's the page:

http://www.irs.gov/businesses/small/international/article/0,,id=96352,00.html

My cursory reading indicates that nowhere in the SPT determination does it make the distinction how you are paid. All SPT cares about is how long you are physically present in the United States.

You seem to be casually dismissing the tax consequences of this by claiming that SPT will not apply to you because you are on a per diem. What you need to understand is that if you spend enough time in the US, SPT will hit you even if you have no US sourced income, W2 or otherwise.

Remember, if you meet SPT all of your worldwide income will be taxable. The per-diem might not be, but the rest will. Do you want to declare it all, or would you rather commit tax evasion?

 

[fast_gc_seeker]

Remember, if you meet SPT all of your worldwide income will be taxable. The per-diem might not be, but the rest will. Do you want to declare it all, or would you rather commit tax evasion?

Thanks for the followup TheRealCanadian. I appreciate this.

SPT does apply to me. I worked for 2 employers in calender year 2005 and will get two W2's and will file my tax return for 2005.

You also said "The per-diem might not be taxable...". The main point I wanted to know is "Is per diem allowance taxable?".

I found attached documents from irs.gov and adp.com which says per diem is not taxable.

Please post your comments.

 

[saabu]

where to mail 140 FOA

Hello United Nations,

As usual when there is an immigration issue I turn to you for help.

I am about to mail the FOA form to get my 140 approval notice. My company is located in New Hampshire and my case is pending in Vermont. I got confused seeing this : http://uscis.gov/graphics/aboutus/foia/ADDRESS.htm.

Can you please tell me where to mail my FOA documents?

 

[saabu]

address for FOIA from DOL ???

Thanks United Nations !!

Should I use the same mailing address to do FOIA for my approved GC labor certifcate. My company is located in New Hampshire. The state labor was approved from New Hampshire and federal labor was approved from Massachetus and my 485 is pending in Vermont.

Where should I mail the DOL to request for my approved labor cert?

 

[fast_gc_seeker]

I know you have been PM'ing me about this issue. There is some complexities as posters have mentioned:

Your immigration status
tax treaties
per diem rates, etc.

Although you want to confine it to just per diems, there is a bunch of issues for you.

Did you look at form 1040-C. U.S. departing alien tax return? There is a whole bunch of immigration related questions on it; ie., visa, permit to enter USA, have you applied for permanent residence, do you plan to return to USA?

You are better served that when you come to USA, you go and see a CPA to straighten this out for you.

Sorry folks but I'm still not clear if my question is more an immigration question or a tax question based on my immigration status so I'm posting it again. Please bear with me and post your comments based on my situation described below

Here is my situation again....

My I485 is pending for more than an year[AOS]. I've valid EAD and AP. I've a job offer with an Indian company who wants me to visit USA again for 2-3 months initially and then work from India. I'll use advanced parole [AP] to enter US. My employer will pay me per diem allowanace in US. This per diem will be paid in cash using debit card which will be used at ATM machine.

Here are my questions....

1) As stated above I'm an AOS person. Can I get paid per diem allowance?
2) If yes how is such per diem allowance taxable as its paid in cash using an debit card at an ATM?
3) Since I'll get paid as per diem will I be using my EAD to get paid?