Maintaining U.S. H1B visa in Canada

[Swanip]

Hello,

I have a query regarding working from home in Canada for a US employer. I have gotten great details about this situation on relevant threads. However, I am wondering If I work from home (or remotely, if I may say so) I have a couple of questions that I did not get clear answers to.
1. How can we justify working remotely from Canada for a US employer when the employer location is far from the US-Canada Border (say Florida)
2. Is it necessary to travel to the employer location to maintain the H1B? If yes, what is the frequency of travel required. Or, is it okay to travel to a city/town in the US that is closer to the border. If the second option is possible, what would you tell the Custom Border Police on the reason to visit.
3. Currently, my employer is in Florida and I am currently working remotely from Seattle. In this case, what would the labor wage requirement in my upcoming H1B renewal assuming I relocate to Canada before applying for renewal.

Expert opinions are much appreciated and thank you all in anticipation to resolving answers.

 

[noscaf2014]

You should ask this question in a US immigration forum. This is a Canada immigration forum and you may not find the answer here. Good Luck!

 

[justinline]

I wrestled with those questions as well, here is my experience.


1. How can we justify working remotely from Canada for a US employer when the employer location is far from the US-Canada Border (say Florida)

Who do you want justify, which side ? If you travel, Canadian side CBSA will ask for PR card and may ask what you do in US. They don't care much about H1 visa. US CBP will ask what you want to do in US, H1b visa should suffice. But if you travel very irregularly they might have concerns. In the H1b filling if I remember correctly there is way to file which incorporates travel patterns, which you intend to maintain. For example working 2 weeks out of Chicago office, working 2 weeks out of Seattle office. You can even do part time employee filling, working onsite say one week a month, rest of time you can get paid as a contractor as well.
If you are traveling Monday - Friday (Monday into US and then Friday out of US), no need to worry about changing the h1b filling. There is guy his handle is Agrisiva, he was travelling once a year to California, while he worked remotely from Alberta. Checkout his old posts. I travel every week now.


2. Is it necessary to travel to the employer location to maintain the H1B? If yes, what is the frequency of travel required. Or, is it okay to travel to a city/town in the US that is closer to the border. If the second option is possible, what would you tell the Custom Border Police on the reason to visit.
Frankly speaking I never got clear answer to it, lawyers will say H1 only matters when you are inside US. Outside of US H1 does not matter. All the process and procedures are very old school have not evolved for remote and telecommuting work.
Like I mentioned Agrisiva only travelled once a year........so the frequency is for you to test it out.
As long your LCA mentions all the locations, you can travel there, I don't think that should be a issue.


3. Currently, my employer is in Florida and I am currently working remotely from Seattle. In this case, what would the labor wage requirement in my upcoming H1B renewal assuming I relocate to Canada before applying for renewal.

Wage consideration should be based on which location you want to travel to.


Keep in mind I am not a lawyer, just my experience....consult a good lawyer.

 

[DEEPCUR]

I wrestled with those questions as well, here is my experience.


1. How can we justify working remotely from Canada for a US employer when the employer location is far from the US-Canada Border (say Florida)

Who do you want justify, which side ? If you travel, Canadian side CBSA will ask for PR card and may ask what you do in US. They don't care much about H1 visa. US CBP will ask what you want to do in US, H1b visa should suffice. But if you travel very irregularly they might have concerns. In the H1b filling if I remember correctly there is way to file which incorporates travel patterns, which you intend to maintain. For example working 2 weeks out of Chicago office, working 2 weeks out of Seattle office. You can even do part time employee filling, working onsite say one week a month, rest of time you can get paid as a contractor as well.
If you are traveling Monday - Friday (Monday into US and then Friday out of US), no need to worry about changing the h1b filling. There is guy his handle is Agrisiva, he was travelling once a year to California, while he worked remotely from Alberta. Checkout his old posts. I travel every week now.


2. Is it necessary to travel to the employer location to maintain the H1B? If yes, what is the frequency of travel required. Or, is it okay to travel to a city/town in the US that is closer to the border. If the second option is possible, what would you tell the Custom Border Police on the reason to visit.
Frankly speaking I never got clear answer to it, lawyers will say H1 only matters when you are inside US. Outside of US H1 does not matter. All the process and procedures are very old school have not evolved for remote and telecommuting work.
Like I mentioned Agrisiva only travelled once a year........so the frequency is for you to test it out.
As long your LCA mentions all the locations, you can travel there, I don't think that should be a issue.


3. Currently, my employer is in Florida and I am currently working remotely from Seattle. In this case, what would the labor wage requirement in my upcoming H1B renewal assuming I relocate to Canada before applying for renewal.

Wage consideration should be based on which location you want to travel to.


Keep in mind I am not a lawyer, just my experience....consult a good lawyer.

Very insightful. Also if someone works for US employer, what would they mention in employment section of citizenship application as CIC may not recognize a US company? I'm not if my question completely makes sense as it stems from some comment that raised this point in a different thread on this topic. Also is remote work with US employer as 'suspicious' as living in Canada and commuting to work for US employer on daily basis in the sense of citizenship application.. like RQ, increased processing time etc.

 

[Vpalanimuthu]

H1b is location based. Technically you can't work from home unless you have your home address added to h1b petition. But mostly of them don't care. I had to go through petition when I moved from one state to another for the same job. Even if you move within a big office where there is a change in zipcode they file for address change petition. So if you are remote and outside US temporarily it might be ok. But in longer duration it is not ok. However no one is going to come n check on you if you are going to the office everyday at the address mentioned in your petition. As long as your employer is ok with it you should be ok I think since every document will be valid. If for some weird reason there was an audit in your company from irs or immigration then it gets tricky and it's on your company to defend themselves.

 

[APPNOV2014NY]

https://www.murthy.com/2012/12/31/uscis-site-visits-what-to-expect/

 

[DEEPCUR]

All of these site visits are applicable only if the person is in US, because outside US one is not H1b status. And it is purely employer's call on where an employee should work and if it is in overseas location, USCIS cannot do anything on that. They will be bothered about what is happening at the US site. Technically USCIS can hold neither employer nor employee responsible if the person is not in US at the time of visit. USCIS might just confirm if the employee is employed in the site and might get the job duties, salary info from HR team, and move on. People do long vacation to India, 4 weeks, 6 weeks some even little more, and site visits are definitely possible in that window.

As Justinline mentioned, it is absolute grey area until USCIS comes up with a clarification or guidance.

 

[yodheydhara]

All of these site visits are applicable only if the person is in US, because outside US one is not H1b status. And it is purely employer's call on where an employee should work and if it is in overseas location, USCIS cannot do anything on that. They will be bothered about what is happening at the US site. Technically USCIS can hold neither employer nor employee responsible if the person is not in US at the time of visit. USCIS might just confirm if the employee is employed in the site and might get the job duties, salary info from HR team, and move on. People do long vacation to India, 4 weeks, 6 weeks some even little more, and site visits are definitely possible in that window.

As Justinline mentioned, it is absolute grey area until USCIS comes up with a clarification or guidance.

While everything could be smooth and dandy as long as you:
1. Work Remotely
2. If you are getting paid in USD - find a way to file taxes in both US and Canada based on the US salary (I think there was a separate thread on that, but some tax lawyer could help).
3. You are able to travel successfully in to the US on H1B visa (not sure how this would turn out when you say u are just visiting, although this may not be an issue, but again, lawyer/USCIS could be the best ppl to tell).

The only thing is - what do you say in case someone from USCIS visits your location as mentioned in the LCA for a check?

 

[DEEPCUR]

While everything could be smooth and dandy as long as you:
1. Work Remotely
2. If you are getting paid in USD - find a way to file taxes in both US and Canada based on the US salary (I think there was a separate thread on that, but some tax lawyer could help).
3. You are able to travel successfully in to the US on H1B visa (not sure how this would turn out when you say u are just visiting, although this may not be an issue, but again, lawyer/USCIS could be the best ppl to tell).

The only thing is - what do you say in case someone from USCIS visits your location as mentioned in the LCA for a check?

Your employer can say that you are still employed with them in that site with the job duties mentioned in the petition, but currently out of the country. I don't think USCIS can do anything about it as you are not in US.

For point 3, why should we say we are visiting. We can say that we are going to work for so and so employer every time. I don't think they can say anything about that too even if the visits are continual / infrequent as long as the employer happens to be okay with it.

 

[Swanip]

Thank you all for the responses. So, I believe the gist is I can continue to work from Canada on H1B as far as my employer is Ok with it. Subsequently, I am soon going to apply for renewal of my H1B and I know I am going to move to Canada by then. Please share your views on what would be the address I provide for the LCA application.

 

[albak]

Hello,

I have a query regarding working from home in Canada for a US employer. I have gotten great details about this situation on relevant threads. However, I am wondering If I work from home (or remotely, if I may say so) I have a couple of questions that I did not get clear answers to.
1. How can we justify working remotely from Canada for a US employer when the employer location is far from the US-Canada Border (say Florida)
2. Is it necessary to travel to the employer location to maintain the H1B? If yes, what is the frequency of travel required. Or, is it okay to travel to a city/town in the US that is closer to the border. If the second option is possible, what would you tell the Custom Border Police on the reason to visit.
3. Currently, my employer is in Florida and I am currently working remotely from Seattle. In this case, what would the labor wage requirement in my upcoming H1B renewal assuming I relocate to Canada before applying for renewal.

Expert opinions are much appreciated and thank you all in anticipation to resolving answers.

I'm not an expert but here are my 2 cents on your situation.

I had to dig deep into these issues for personal reasons as well. I travel frequently for work as a consultant for a Big 4. I also work from home a lot depending on the client situation. If I travel 2 weeks, I take two weeks off and work from home. I discussed with my company's immigration attorney about possibly relocating to Canada and working from there as a base. He suggested that I not do it for several reasons.
1 - The company tax gets awfully complicated if I live out of the country
2 - While I would be able to claim tax credit in Canada for any wages earned, he wasn't sure if I would be able to get that tax break for non-wage reimbursements - e.g., travel expenses, phone expenses etc.,. This is something I would need to investigate.
3 - Lastly, and this is the most important, he said I WOULD need to maintain legal residence in the United States if I planned to work from home. This seems contradictory to what a few others in this forum have done so I'm not sure if he is speaking from ignorance or if he isn't aware of a loophole that others are taking advantage of.

Based on all of this, we decided that the best approach for us would be to rent an apartment in a border town and get an LCA filed for that location (since I work from home a lot, I would need an LCA for that location as well). Not sure if this helps you since your employer is located far away but it is definitely worth speaking to both an immigration attorney as well as a tax consultant before you make your decision

 

[Swanip]

I'm not an expert but here are my 2 cents on your situation.

I had to dig deep into these issues for personal reasons as well. I travel frequently for work as a consultant for a Big 4. I also work from home a lot depending on the client situation. If I travel 2 weeks, I take two weeks off and work from home. I discussed with my company's immigration attorney about possibly relocating to Canada and working from there as a base. He suggested that I not do it for several reasons.
1 - The company tax gets awfully complicated if I live out of the country
2 - While I would be able to claim tax credit in Canada for any wages earned, he wasn't sure if I would be able to get that tax break for non-wage reimbursements - e.g., travel expenses, phone expenses etc.,. This is something I would need to investigate.
3 - Lastly, and this is the most important, he said I WOULD need to maintain legal residence in the United States if I planned to work from home. This seems contradictory to what a few others in this forum have done so I'm not sure if he is speaking from ignorance or if he isn't aware of a loophole that others are taking advantage of.

Based on all of this, we decided that the best approach for us would be to rent an apartment in a border town and get an LCA filed for that location (since I work from home a lot, I would need an LCA for that location as well). Not sure if this helps you since your employer is located far away but it is definitely worth speaking to both an immigration attorney as well as a tax consultant before you make your decision

Thank you!!
I appreciate your response. Employer is ready to set up an Independent Contractor relationship. Would you have any knowledge on this.
Appreciate your opinion.

 

[DEEPCUR]

I'm not an expert but here are my 2 cents on your situation.

I had to dig deep into these issues for personal reasons as well. I travel frequently for work as a consultant for a Big 4. I also work from home a lot depending on the client situation. If I travel 2 weeks, I take two weeks off and work from home. I discussed with my company's immigration attorney about possibly relocating to Canada and working from there as a base. He suggested that I not do it for several reasons.
1 - The company tax gets awfully complicated if I live out of the country
2 - While I would be able to claim tax credit in Canada for any wages earned, he wasn't sure if I would be able to get that tax break for non-wage reimbursements - e.g., travel expenses, phone expenses etc.,. This is something I would need to investigate.
3 - Lastly, and this is the most important, he said I WOULD need to maintain legal residence in the United States if I planned to work from home. This seems contradictory to what a few others in this forum have done so I'm not sure if he is speaking from ignorance or if he isn't aware of a loophole that others are taking advantage of.

Based on all of this, we decided that the best approach for us would be to rent an apartment in a border town and get an LCA filed for that location (since I work from home a lot, I would need an LCA for that location as well). Not sure if this helps you since your employer is located far away but it is definitely worth speaking to both an immigration attorney as well as a tax consultant before you make your decision

1) I think that is your problem, not your company's problem. You might get many tax consultants to deal with it.
2) qualified tax consultant can help here too.
3) that's absurd in my opinion. See renting a house is not maintaining residency and you can maintain residency only in one place at a time. It is physically where you live, not where you visit or work daily. You can either live on Canadian side or US side at a time.

If you rent a house on the border and commute daily, you are merely mitigating the USCIS site visit factor, nothing else. The house you rented will be your workplace and not residence. Your residence will still be Canada, and not the house in US. I'm not sure how that suggestion helps and it's as good as flying to any state where your employer is based out. Your company could merely keep US payroll running from any US location like how they do now. The only way renting a border house helps is to deal with USCIS site visits, but that too doesn't matter if you are out of country.

If you live and work in that house you rented, then you are not living in Canada at all, and this entire discussion goes meaning less.

 

[dphotawala]

I am in a sort-of similar situation. Below is my approach:

1. My wife will be renting an apartment in her name in Canada. I will be living with her.
2. I will maintain my primary residence in Texas - I own a house there. Meaning, all my documents will be routed to that location.
3. I will work remotely for my employer in Texas. This means, I get paid in my US bank account using my SSN.
4. Once I run out of my H1-B status two years down the road (6 years in total); I will file for extension based on the number of days not spent on US soil. I read about a provision that allows USCIS to provide extension beyond 6 years for number of days not spent on US soil.

Assuming I am correct, this will allow me (1) To stay in Canada without any obligation to fly back to Texas every now and then (2) Have my H1-B renewed beyond 6 years maximum period (3) Complete my obligation towards Canada PR and citizenship process faster

 

[harirajmohan]

I am in a sort-of similar situation. Below is my approach:

1. My wife will be renting an apartment in her name in Canada. I will be living with her.
2. I will maintain my primary residence in Texas - I own a house there. Meaning, all my documents will be routed to that location.
3. I will work remotely for my employer in Texas. This means, I get paid in my US bank account using my SSN.
4. Once I run out of my H1-B status two years down the road (6 years in total); I will file for extension based on the number of days not spent on US soil. I read about a provision that allows USCIS to provide extension beyond 6 years for number of days not spent on US soil.

Assuming I am correct, this will allow me (1) To stay in Canada without any obligation to fly back to Texas every now and then (2) Have my H1-B renewed beyond 6 years maximum period (3) Complete my obligation towards Canada PR and citizenship process faster

2. US rules govern within the US and making US as primary location doesnt help and its not required to get pay in USD (irrelevant of working remote or maintaining H1 status by travelling frequently). You cannot make US as primary location when you live in some other country.
Many work from remote from outside US (for which US rules doesnt apply unless they need to maintain H1 status and travel frequently) and many commute daily (commuters dont keep US as primary location even at I-129 & DS160 applications).
4. Try to find if your previous employer's 140 can be used to get your non-cap H1 which will solve your main H1 issue which is your primary concern. I dont know much about using previous employer 140 while being outside.