Employee to independent contractor (W-2 to 1099)

[puppala]

I have an approved EAD/AP for the last one year. Current visa status: I-485 pending.

Is it legal to work as an independent contractor (1099) for the company I’m employed with right now as a W-2? By the way, this is the same company that sponsored my H1 and applied my GC.

Also, how to get the Health Insurance as an independent contractor?

Any pointers are highly appreciated, including the pros. and cons.

[Belle]

It is legal for you to work for anyone with a valid EAD. What you need to understand is what impact it would have on your green card filing. Health insurance is different question. If you are terminated as an employee, you have the right to buy your old health insurance under COBRA for 18 months after your termination. After that, I would suggest checking out your state's health insurance exchange, which should be up and running by then.

[puppala]

@Belle:

When you say "What you need to understand is what impact it would have on your green card filing.", can you make me understand the impact that you envision? I really appreciate if you can put some light on any of the "what if's" that you may be thinking about.

By the way, isn't the GC already filed? Do I have to file anything else after filing I-485?

[Belle]

You need to discuss whether your new job is eligible for AC21 portability and how you can use it.

[puppala]

Is the eligibility for the AC21 portability based on the nature of the job, or the ownership of the company? All I'm saying is, I'll continue to do the same work (nature of the job) but as a contractor. Based on your first reply it appears to be legal to work as a contractor. Then what can be the potential disrupter?

More importantly, do I have to port my I-140? In other words, do I have to re-process I-140 if I'm a contractor?

[Belle]

Yes, you may work as a contractor under AC21. The question is whether this will be considered self employment under immigration rules. Generally your state's DOL would have a different rule than the IRS on who's a contractor, so it is the job of the immigration lawyer to understand which way to follow. Even if you are self employed, you can (and should) use AC21.