Re: H1-B VISA and also Independent Contractor work

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Dear James,

Please below are some of the answers to your questions.

1. Are you saying that all employees working on a H1-B must
categorically be classified as an employee and file taxes via a W-
2?

The answer is NO. The 1st & 2nd paragraphs that I posted before is only
to Clarify and differentiate the W2 and 1099 Form. At the end of the
paragraph I stated:

“It is depends on the contract/employee classification with the company.
However, if the company deducted tax (ss, medicare...) from your pay
cheque (weekly, or monthly) then he/she should entitle to receive a W2.
If no deduction then he/she is responsible to pay their own tax.
Is this a violation of your H-1B status, No.

2. A friend was employed under a H1-B visa status and has just received
a 1099 from a previous employer........is that something to be concerned
about? What action should they take?

Well, as I mention above it is depend on his/her contract with the
company, secondly, I don’t think the company committed any crime or
violation of any labor law. However, your friend should communicate with
his/her HR dept and discuss the matter with them.

3. From the info in this thread it seems to appear that isn't feasible
that one can work in the U.S on a H1-B and be a indedendant
contractor? Is that correct?

“H1B aliens can only work for the petitioning US employer (sponsor
company) and only in the H1B activities (job duties) described in the
visa petition. The sponsoring US employer may place the H1B worker on
the worksite of another employer if all applicable rules (e.g.,
Department of Labor rules) are followed. H1B aliens may work for more
than one US employer, but must have a Form I-129 petition approved by
each employer...”

Thanks

On 4/10/07, james wrote:
> Sorry to tread what appears to be old ground here. Just to clarify,
> are you saying that all employees working on a H1-B must
> catagorically be classified as an employee and file taxes via a W-
> 2?
>
> A friend was employed under a H1-B visa status and has just received a
> 1099 from a previous employer........is that something to be concerned
> about? What action should they take?
>
> From the info in this thread it seems to appear that isn't feasible
> that one can work in the U.S on a H1-B and be a indedendant
> contractor? Is that correct?
>
> Thank you in advance for your answer.
>
> On 3/16/07, Fanua SP (SCUPS- Student) wrote:
>> Dear S. Peters,
>>
>> Please read carefully:
>>
>> H1B aliens can only work for the petitioning US employer (sponsor
>> company) and only in the H1B activities (job duties) described in
> the
>> visa petition. The sponsoring US employer may place the H1B worker
> on
>> the worksite of another employer if all applicable rules (e.g.,
>> Department of Labor rules) are followed. H1B aliens may work for
> more
>> than one US employer, but must have a Form I-129 petition approved
> by
>> each employer...There are ways you can petition so you continue on
>> your independent contracting but you have to see an Immigration
>> Attorney.
>>
>> Thanks
>>
>>
>> On 3/15/07, S. Peters wrote:
>>> Does anyone know for a fact whether or not working as an
>>> Independent Contractor is indeed a violation?
>>>
>>>
>>> On 3/10/07, Fanua SP (SCUPS- Student) wrote:
>>>> Dear Peters,
>>>>
>>>> There are possible breach-of-contract obligations even when
>>>> there is only a verbal contract or agreement since the employer
>>>> would have relied on that promise and sponsored the H1B employee
>>>> for the H1B process for you, etc. Keeping aside that matter,
>>>> generally, there are two conflicting rules that could apply in
>>>> such a case as I have posted before (that you're not interested
>>>> on). However, your bigger problem is you're engaging in outside
>>>> activities from your H-1B contract "Is this Legal"? Your second
>>>> question is "How does the INS gather or track this"? Believe me
>>>> they will! Please, work with Immigration Attorney.
>>>>
>>>> Thanks
>>>>
>>>> On 3/08/07, S. Peters wrote:
>>>>> I'm more interested in not whether you can work for another
>>>>> employer besides the one sponsoring my H-1B, but me working
>>>>> independently on the side where I would also be receiving
>>>>> 1099's in addition to my W-2. Is this legal? How does the
>>>>> INS gather or track this?
>>>>>
>>>>>
>>>>> On 3/08/07, Fanua SP. (SCUPS-Student) wrote:
>>>>>> Dear Sonya,
>>>>>>
>>>>>> According to the USCIS, "H-1B aliens may only work for the
>>>>>> petitioning U.S. employer and only in the H-1B activities
>>>>>> described in the petition. The petitioning U.S. employer may
>>>>>> place the H-1B worker on the worksite of another employer if
>>>>>> all applicable rules (e.g., Department of Labor rules) are
>>>>>> followed. H-1B aliens may work for more than one U.S.
>>>>>> employer, but must have a Form I-129 petition approved by
>>>>>> each employer." USCIS will enforcement these rules depends
>>>>>> upon complaint is made and investigation will carry out.
>>>>>>
>>>>>> Because of AC21, the H-1B employee is free to change jobs if
>>>>>> they have an I-485 application pending for six months and an
>>>>>> approved I-140, if the position to which they are moving is
>>>>>> substantially comparable to their current position. In some
>>>>>> cases, if those labor certifications are withdrawn and
>>>>>> replaced with PERM applications, processing times will
>>>>>> improve, but the person will also lose their favorable
>>>>>> priority date.
>>>>>>
>>>>>> Thanks
>>>>>>
>>>>>>
>>>>>> On 3/07/07, Sonya Peters wrote:
>>>>>>> I work in the computer industry and have an H-1B VISA
>>>>>>> sponsored by my current Employer. I also have been asked
>>>>>>> on a number of occasions to help out on the side with some
>>>>>>> contract/consulting work and am wondering if this is
>>>>>>> allowed or permissable given my H-1B status?
>>>>>>>
>>>>>>> Normally this situation would entail working as an
>>>>>>> Independent Contractor and filing a Schedule C. My
>>>>>>> questions are:
>>>>>>> 1. Is it possible to work as an Independent Contractor
>>>>>>> while on an H-1B VISA or would I be violating my H-1B
>>>>>>> status if I engaged in this side work?
>>>>>>> 2. What is the likelihood that someone would get caught
>>>>>>> (i.e. would it be only if my taxes are audited)?