Heather (H): Thanks for chatting with me today. I think your knowledge will be really useful to the many non-working spousal visa holders across the country that we aim to help with Amity.
First, what is your background? What makes you an expert in the subject area of immigration law?
Sophie (S): My father was a immigration lawyer and my mom was an immigrant, so I grew up in the immigration law world. I understand what it’s like to straddle two countries and cultures and languages. I really identify with my clients and I have been inspired my whole life by my dad and his stories of helping people from impossible situations. I tried to fight being an immigration lawyer at first because I didn’t want to copy him, but I’ve found that it’s my professional calling. I’ve been an attorney for 8 years. I attended Stanford University for my undergraduate in International Relations and then I attended Washington University for law school. I’ve been practicing immigration law the entire time I’ve been an attorney. I’m the foudner of Alcorn Immigration Law in Mountain View. My team and I have represented clients in hundreds of cases and helped people from all over the world in all types of immigration situations.
H: In addition to H4 visas and TD visas, what are the other visas that restrict employment?
S: Dependent spouses who are in O-3 status (extraordinary ability) and P-4 status are not allowed to work either.
H: What can people on non-working visas do while in the US? What can they not do? Does this vary by the visa?
S: What these statuses have in common is that you are not authorized to accept employment. Employment under immigration law is defined as completing tasks for compensation or even for the hope of a future reward. So if you’re volunteering because you hope that one day the company will give you a big signing bonus, that is not authorized. You can volunteer, you can go to school, you can have kids, you can get training, but you can’t get paid or receive other compensation.
H: So you could not have an online business like Etsy?
S: No, although you can own a business, you can’t work in a business, even including Etsy.
H: Or a Youtube Channel, just say you’re a video blogger and you have ads enabled?
S: You can’t get paid for YouTube ads either.
H: What about, “Well I’m going to take this time to write a book and maybe one day get it published” (even if there’s no indication whatsoever that it could ever be published)?
S: I think if the immigration officer were interviewing you and and asked you if you were writing a book and you answered yes, and then asked if you were doing this because you hoped to get it published someday and you answered yes – I think that would be considered unauthorized employment. So yes, it is really harsh.
H: Can you work remotely for a company based in your home country? So the money doesn’t flow through the US, it goes through your bank accounts back home, you’re paying taxes back home and you’re just working remotely?
S: I will draw a parallel to the B-1 visitor visa, which is a visitor for business, but is also somebody who is not allowed to accept employment while in the United States. You can do work on behalf of a foreign country while you’re temporarily in the United States if you’re getting paid by somebody in the foreign country. There’s an old analogy about a tailor coming to the United States to measure clients for suits and then when he goes back to the China, he’s going to take the measurements back with him (in the pre-internet days) and have the suits custom made for all of the clients in the United States and then mail them back, and that was okay. So if you’re measuring people’s suits, it’s probably okay. But I would be cautious for example if this foreign company has an office in the United States, that may be construed as employment in the United States. You should always speak to an attorney about your unique situation.
H: So if you were a graphic artist and you were doing graphic design for clients in Canada that you were going to send back to Canada and the funds would flow through Canada, would that be allowed?
S: Probably not. Here’s how it would play out: if you have an immigration officer asking you questions about this in a future green card interview, they could determine that you’ve engaged in unauthorized employment and you violated the terms of your status. There’s always that risk. And what the law says is that employment is not authorized in these statuses and my opinion is that that means that employment by a US entity in the United States. However, other people who make these kinds of decisions could have other opinions, so I can’t say for certain if the graphic designer working remotely would be in violation of his/her status or not. If you want to work, the solution is to get you a different kind of visa so that you can work.
H: Great yes, so let’s talk about that. What kinds of visas could you get that would allow you to work?
S: So for example, if you’re a graphic designer from Canada, let’s get you a TN visa. If you have clients in Canada and the United States, maybe you could do it as a consultant. Or if you get a job offer as a graphic designer for a US company, you could get a TN as an employee. The TN is for Canadians and Mexicans.
If you’re in the H-4 situation, you either need to wait until your spouse’s green card process gets going so that you can get a work permit, or you can get your own H-1B. And if you can get a job offer at a University or a non-profit affiliated with a University, you can skip the H1B lottery. Universities are exempt from the H-1B. You can get one anytime of year, there’s no quota. So that’s a great option.
If you’ve worked for one year of the last three years for a foreign company that has a US branch, subsidiary or parent company, you might be able to obtain an L visa.
Or if you can invest $100-200k, you could start your own business to get an E-2 visa (an investor visa) to start your own business here.
This summer there might be a new option for startup founders. In that new scheme, the spouse would be able to obtain a work permit.
What you can do as an H-4 is: own a company, incorporate a company, and negotiate contracts on behalf of your company. So if you have an amazing idea for a startup and you have some traction, or your spouse works at a startup, the new rule could be a possibility.
H: So you can start a business while on a non-working visa?
S: Yes. You can start a business. You can’t work there, but you can own it. You can create your business, but not work in your business. You’re not supposed to be doing administrative-employee work, you’re allowed to be doing higher level things like negotiating contracts, building your board, hiring a manager, and hiring employees who will do the work for you.
H: So you could do a market analysis, develop products, develop a website and marketing materials but not actually sell anything until you get a work permit?
S: Right. And another thing, I’m guessing a large part of your membership is women, so I constantly tell women that they shouldn’t overlook the O-1A and EB-1A extraordinary abilities categories.
I often speak to men who perhaps meet two of the requirements and want to pursue the status, and women act very differently, even if they clearly meet more than enough of the criteria. When I meet with women and I ask them for their resumes, they often don’t even want to show them to me. But when I look, I realize that they are absolutely brilliant and accomplished and they meet the criteria.
So I think as women, and I know there are psychological studies to back this up, but we undervalue our accomplishments and our achievements. I’m suggesting that you allow somebody who is neutral to look at your resume because you might qualify for something that you don’t think you’re good enough for.
H: In hindsight, when I think back to when I moved down here, my husband was working for a team that had employees in Dublin as well, and if I had known, I think we could have had my husband relocated to the Dublin office and then I could have worked there as a Canadian under the SWAP (Student Work Abroad Program) and then we could have worked there for a year and then transferred back to the USA and I could have then gotten an L-2, but we didn’t know.
S: Another thing that I would say, is to try to get your spouse’s green card process hurried up. There’s nothing stopping you from applying for a green card immediately.
H: So it is not true that you have to be in the US for one full year on an H-1B visa before you can apply for a green card?
S: No, this is not true. Some companies have an internal policy that requires their employees to work for a full year on H-1B before they will sponsor a green card, however. You can get a green card without ever having had an H-1B visa while you’re still in a foreign country.
So try to get your spouse on EB-1 if you’re from China or India so you can avoid the really long wait times and you can apply for an adjustment of status sooner.
H: If you’re here on an L-2 status, and you are applying for a green card, do you first have to get an H-1B/H-4 and then lose your ability to work?
S: No, you can go straight from L-1A and L-2 to green cards.
H: Can you go to school part time, full time or both?
S: Yes, both are okay.
H: What happens if you are almost about to get a green card but your job might transfer you to a different country? If we got the green card, would we be giving up the green card?
S: You could still potentially get the green card even if you’re in a foreign country if the employer continues the sponsorship but after the green card is approved you would have to move back so your spouse could start the job that the green card would be based on.
If you have a green card and you’re living abroad, have to continue paying taxes in the United States, but there might be a treaty that avoids double taxation. You are supposed to not be gone for more than 6 months at a time. But if you have to be gone for more than six months at a time, you can get a re-entry permit that will allow you to come back. If you do those things, either get a re-entry permit or return every six months and pay your taxes, and don’t commit crimes, you should still be able to keep your green card, but it will delay the time frame in which you can apply for US citizenship in the future.
H: Do you have to maintain a residence while abroad with a green card?
S: You need a place you consider your home address.
H: If you give up a green card, is that the only one you’re ever going to get?
S: No, you can apply again, but if you had a green card it makes it more difficult to come back as a tourist. Because they are like, “what? You’re really just visiting, even though you already lived here?”
H: One last question, do you have any advice for H-4 visa holders going forward with the new Trump Administration?
S: There might be 180,000 spouses who obtained H-4 EADs under this rule. There was a lawsuit filed to stop these work permits that was dismissed in federal district court. It is on appeal and lawyers for the Trump administration recently requested a 60-day abeyance to allow them time to figure out their stance on the issue and how they want to proceed.