I 485 EAD for Spouse

[bkammari]

Hello,

 

My current situation:

 

My I-140 is approved with priority date of April,1,2011 with company A through which i work as a contractor for Company B ( Client).

My client ( company B) has offered me fulltime position , but they will process my GC Perm after one year of my Joining.

So , I am planning to take fulltime with my client but continue to process my GC I-485( EAD) with company A (my current employer) when the PD becomes current..

 

Question:

 

But my question is , in this situation  I-140 with company A ( employer) and H1b with Company B( client)  will there be any issues  for my spouse while applying for I-485, on what basis does my spouse will I-485 ?

 

 

Thanks in advance.

 

[JoeF]

If you are on H1, you NEVER work as a contractor. You are an employee of your employer, and they may send you to a client location. That does NOT and NEVER makes you a contractor.

[bkammari]

yes,I stand correct my statement,  my employer company A sent me to client location . now can you please help me with my question?

[dkumar]

@Joef - Yes sir ,, i does make her a contractor,, and this is what FTEs calling to the employees who represents other employer. its all over the place in IT industry. i would love to here reasons why are they should not been called contractors. lets not care about her problem. Lets discuss this logic. 

[JoeF]

@Joef - Yes sir ,, i does make her a contractor,, and this is what FTEs calling to the employees who represents other employer. its all over the place in IT industry. i would love to here reasons why are they should not been called contractors. lets not care about her problem. Lets discuss this logic. 

 

SIgh.

On H1, a person is BY DEFINITION never a contractor.

A contractor is somebody who works independently, who writes invoices and gets a 1099 for tax filing.

A person on H1 gets a W2 from his employer. That means the person on H1 is an employee.

The employer has to control the person's work. That's what the Employer-Employee relationship is all about. USCIS nowadays denies H1s if the E-E Relationship doesn't exist. Another indication that the person on H1 absolutely is an employee.

If you tell a visa officer at a US consulate that you are a contractor on H1, you won't get an H1 visa.

You can also ask any immigration lawyer. The lawyer will tell you the same thing.

 

The bottom line: On H1, you are ALWAYS an employee, NEVER a contractor. Period. End of story.

[JoeF]

@Joef - Yes sir ,, i does make her a contractor,, and this is what FTEs calling to the employees who represents other employer. its all over the place in IT industry. i would love to here reasons why are they should not been called contractors. lets not care about her problem. Lets discuss this logic. 

 

Another thing: Do you sign the contracts with the clients??? Is your signature on the contracts???

If not, then you are not a contractor.

Come on, show us where your signature is on the contract with your client. I am waiting...

 

The bottom line: On H1, you are ALWAYS an employee, NEVER a contractor. Period.

[JoeF]

yes,I stand correct my statement,  my employer company A sent me to client location . now can you please help me with my question?

 

It could cause problems for you, since you would have to start working for your old employer when the I-485 is approved (unless it is pending for over 180 days.)

If you don't intend to do that, filing an I-485 would be immigration fraud.

[dkumar]

@JoeF So should i through an email to everyone at my client side and let them know please do not do not call me a contractor. 

[JoeF]

@JoeF So should i through an email to everyone at my client side and let them know please do not do not call me a contractor. 

 

What they call you is irrelevant. They are unlikely to know the immigration issues and the rules of the H1. They contracted the job out to your employer, so your employer would be a contractor or consulting company. You personally are not. You are just the visible face of your employer, so people may colloquially call you a contractor, but that's just rooted in ignorance of the complexities of the situation.

On H1, you are never a contractor. That is what matters for you.

[livliv]

There will not be any issues for your spouse. There may be extra scrutiny in case of consulting companies, but if everything is in order that in itself will not be a problem.

 

Thank you JoeF for continuing to teach English to those who didn't ask for it. Pray tell, what an independent contractor is then? Why the distinction from contractor?

[bkammari]

if i take fulltime with company B and transfer my H1b to company B from company A, and start my GC process ,during this process if the PD becomes current and if I transver back my h1b to company A from Company B and then file I-485 for my Spouse and myself. Is this a fraud too?. do I have to start my GC process from scratch ( perm,I140 again? ) with Company A Which was my old employer.

[JoeF]

There will not be any issues for your spouse. There may be extra scrutiny in case of consulting companies, but if everything is in order that in itself will not be a problem.

 

Thank you JoeF for continuing to teach English to those who didn't ask for it. Pray tell, what an independent contractor is then? Why the distinction from contractor?

 

A contractor (or independent contractor) gets a 1099. That's not allowed on H1. A person on H1 is always an employee. Period. End of story.

[JoeF]

if i take fulltime with company B and transfer my H1b to company B from company A, and start my GC process ,during this process if the PD becomes current and if I transver back my h1b to company A from Company B and then file I-485 for my Spouse and myself. Is this a fraud too?. do I have to start my GC process from scratch ( perm,I140 again? ) with Company A Which was my old employer.

 

The rule is that when the I-485 is approved, you have to start working for the sponsoring employer.

Some time back, there was a law change that allows changing jobs when the I-485 is pending for over 180 days.

What you do before the I-485 is approved is generally not an issue, but it could be that there is an RFE about ability to pay if you don't work for the sponsoring employer, because it looks as if either the job doesn't really exist or the employer is not able to pay the salary.

This "changing employer and then changing back" looks rather weird, and I can imagine a USCIS examiner becoming suspicious when seeing something like that.

[bkammari]

i really appreciate if anyone replies to my above post.

[livliv]

if i take fulltime with company B and transfer my H1b to company B from company A, and start my GC process ,during this process if the PD becomes current and if I transver back my h1b to company A from Company B and then file I-485 for my Spouse and myself. Is this a fraud too?. do I have to start my GC process from scratch ( perm,I140 again? ) with Company A Which was my old employer.

 

If PD becomes current, you may just be able to file 485 directly at that point. There is no need to transfer H1 back to A. But after 485 is approved (you get the GC) you must join A, because GC was approved with A's petition. Ability to pay RFE is unlikely for a 485 filing. It is more of a concern in 140. There may also be some AC21 transfer possibilities at that time. Consult a good lawyer.

 

 

A contractor (or independent contractor) gets a 1099. That's not allowed on H1. A person on H1 is always an employee. Period. End of story.

Well answered. The distinction between contractor and independent contractor is quite clear - that there is none. Why don't you write to the IRS immediately, asking them to remove the word independent from their language as it is completely unnecessary. That will be some good unsought advice.

[bkammari]

Thankyou very much guys

[bkammari]

then in that case what happens to the GC process i started with company B ( my client)

[rahul412]

 

Well answered. The distinction between contractor and independent contractor is quite clear - that there is none. Why don't you write to the IRS immediately, asking them to remove the word independent from their language as it is completely unnecessary. That will be some good unsought advice.

It looks like you still didn't understood the difference.

On H1 you cannot work for yourself, which is nothing but working as independent contract. You have to work ONLY for H1 sponsoring employer. Your H1 employer takes care of everything like salary, insurance etc

 

Whereas in case of independent contract, you handle all the things including insurance and paying taxes. I think you know the difference between OPT and H1, in OPT you can work for yourself but not on H1.That's the difference between contractor and independent contractor. You might be contractor at client location but still you are employee of your H1 sponsoring employer.

[dkumar]

@

 

It looks like you still didn't understood the difference.

On H1 you cannot work for yourself, which is nothing but working as independent contract. You have to work ONLY for H1 sponsoring employer. Your H1 employer takes care of everything like salary, insurance etc

 

Whereas in case of independent contract, you handle all the things including insurance and paying taxes. I think you know the difference between OPT and H1, in OPT you can work for yourself but not on H1.That's the difference between contractor and independent contractor. You might be contractor at client location but still you are employee of your H1 sponsoring employer.

Rahul412 - Please make JoeF understand this. The way he (JoeF) is explaining, there should be difference between Contractor and Independent contractor. i have seen lot of people who are citizens and working as contracotrs and representing their employers. What is the difference between " A citizen is working at client A while representing his /her employer" and "An H1B is working in same mode?" Both are called contractors. Thats it. 

[livliv]

It looks like you still didn't understood the difference.

On H1 you cannot work for yourself, which is nothing but working as independent contract. You have to work ONLY for H1 sponsoring employer. Your H1 employer takes care of everything like salary, insurance etc

 

Whereas in case of independent contract, you handle all the things including insurance and paying taxes. I think you know the difference between OPT and H1, in OPT you can work for yourself but not on H1.That's the difference between contractor and independent contractor. You might be contractor at client location but still you are employee of your H1 sponsoring employer.

Thank you for providing your astute understanding of all the differences. You clearly have a knack for picking up sarcasm. I was only commenting on the completely irrelevant response 'on h1 there is no contractors.' The fully appropriate version of the statement IMO is ' on h1 there are no independent contractors'.