Re: H1-B VISA and also Independent Contractor work

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Some of the information posted below is incorrect. You can find
regulations regarding H-1B status at 8 CFR 214.2(h). An employer sponsors
an individual to work in H-1B status for that company only. The company
can put the employee at various sites but the employee must remain an
employee of the sponsor. Receiving a 1099 means that the employee is not
working for the employer who sponsored him/her for the H-1B. You have a
problem if a 1099 is being issued to an H-1B employee. Your friend should
go see an immigration attorney because he has likely violated his H-1B
status. I wouldn't rely on posts from a message board for something like
this.

On 4/14/07, Fanua SP. (SCUPS-Student) wrote:
> 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)?