geck0123

Hi All,

So our situation seems complicated to us, but looking through so many threads it seems with your collective knowledge you all will find it laughably simple.

- I (British male) am marrying my partner (American female) in January in the UK. Shortly after the wedding, she will be returning to the US where she resides, and I will hopefully be joining her in late February once I have managed to get my affairs in order (most notably organising tenants for my property so I can rent it out).
- I intend to continue working my current job at a small IT company in the UK, but doing so remotely from the US.
- We may only live in the US for a couple of years before returning to the UK together - though this aspect will need to be flexible as we're not sure yet where we want to end up, so I don't want to cut any ties.
- I have around 60 days left on my ESTA which I was approved for in December last year,

I have looked through many threads in advance of posting and think I've got a gist of what steps I need to take. The only thing that applies to me from the Pulaski Simplified page is that I will be marrying my partner who is a US citizen BEFORE moving.
In the threads that I have read I believe that I have a few options:
- K-1 Visa
- Spouse Visa

From what I understand the Spouse Visa would enable me to work remotely for my existing UK-based employer from day 1 of arrival in the US whereas that is seemingly not the case with a K-1 visa.

Have I understood this correctly, or is K-1 or potentially another different route more suitable to my circumstances? Ultimately I want to have the option to move as soon as possible after the UK wedding, but without needing to have a leave of absence with my job.

ivanidea

Whilst it's true that you can work in the USA once you immigrate on a spousal visa, be aware that it may take over a year before you actually receive the visa (read other posts to see current timescale).

Whilst the visa application is in process, you may still visit the USA using an ESTA visa waiver, for short periods, but you may not work during your time in the USA.

The K1 will allow you to get married in the USA, and stay, but again, you will not be able to work until your adjustment of status has been approved, I believe the timeline is similar to the spousal visa.

Basically, don't plan on working in the USA for at least a year after getting married.

SanDiegogirl

Your wife will sponsor you for a spouse visa starting with the I-130 petition (the K-1 is for those who want to marry in the US and then change status)

The spouse visa is currently taking between 9 and 12 months to process.

While you will be able to work in the US remotely, have you sorted out how you will pay taxes etc.

Have you obtained a marriage visitor visa in order to get married in the UK?

christmasoompa

Just to clarify for the OP, SDG means once you have your immigrant visa - you can't work at all in the US as a visitor (unless doing certain specific things i.e. attending a business meeting - but you can't do your normal 'day job').

HTH and good luck with the wedding/move.

S Folinsky

Writing from the viewpoint of an immigration lawyer retired after 40 years, I would not say your issues are “simple” at all. In fact, they are quite “sophisticated.” ( A term I personally find weird in a legal context, but I digress).

As an inactive member of the California bar, I am required to refrain from giving specific advice. But I feel quite comfortable in advising a suggestion that obtaining competent legal advice is a good idea.

I will leave to others to tell you how and why you seem to misunderstand your online research.

By way of general comment, much of the law on immigration and employment predates on-line remote employment. Immigration lawyers debate among themselves how it applies to present day remote employment and what it means.

Although not exactly on point, here is an article on related issues. It is often argued by immigration lawyers that it is analogous. Other immigration lawyers disagree.

Noorah101

Have you looked into an L visa? That way your employer can send you to the USA to work there legally. Once in the USA, then you can apply to adjust status to permanent resident (although not worth all that effort and money if you're not going to stay 5 years or so to get US citizenship).

Otherwise, as others have said you're looking at about a year of living apart while the immigrant visa processes. You can visit on the VWP. but can't work remotely for the UK company while inside the USA.

Rene

S Folinsky

Good post. That said, the entire non-immigrant side of the shop should be examined.

destone

The saying goes “you can’t have your cake and eat it”. I suppose you appreciate that it is a privilege to become a United States Citizen. You need to figure out with your partner if you intend to make the US or the UK your permanent home for the next several years. Figure out what’s important for you and act accordingly.

geck0123

Thank you all for your replies. A lot of food for thought.
We're working through it all and assessing our various options. I'll be sure to post an updates with our progress for those interested (if any).

christmasoompa

I'm sure we'd all be interested, you've got a bit of time to work out the spouse visa side of things as you can't apply until you're married anyway, or to work out if an employment based visa would be better (if that is an option and you wanted to be able to work sooner). So you've got a month or two of researching, and lots of people on BE that can help if you have any questions during that time.

Good luck with whatever you decide.

newacct

If you are physically in California while performing the work, you will be subject to US federal and California taxes on the income from that work. Your company will need to be able to withhold and pay US federal and California income taxes and other payroll taxes (e.g. Social Security tax, Medicare tax, California unemployment and disability insurance, etc.). Are they able to do that?

Nutmegger

His company doesn't "need" to do that -- he can work as an independent contractor, report his income to IRS and state, and pay the taxes himself. Thus, he should mark up the amount that he charges them in order to cover the taxes.

newacct

Right but that's only if the actual nature of his work is that of an independent contractor. Whether he's an employee or an independent contractor is not chosen by him or by the company, but determined by the facts of how he does his work.

Nutmegger

If he is self-employed and bills them for his services, he's an independent contractor.

MidAtlantic

Nope! https://www.irs.gov/businesses/small...ractor-defined : You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

If an employer-employee relationship exists (regardless of what the relationship is called), then you are not an independent contractor and your earnings are generally not subject to self-employment tax. However, your earnings as an employee may be subject to FICA (social security tax and Medicare) and income tax withholding.

This is one area where the IRS (and HMRC for that matter) is giving more scrutiny.