Immigrants lacking papers work legally – as their own bosses
latimes.com
latimes.com
In a similar fashion, owning a LLC makes it radically easier to not pay income taxes than being a W-2 employee, but it does not excuse you from paying income taxes.
(Obligatory disclaimer: I am simply describing the immigration law of the United States as it is, not as I might desire it to be.)
I think there's a fuzzy line, but that fuzziness could be in my own head.
In my LLC I had no employees. My company made money, and I did an owner's draw when I wanted money from the company.
I worked, but I didn't work as an employee. The work laws target employees, not owners, and I think that's the distinction the article is trying to make.
The first person mentioned, Carla Chavarria, is not a legal resident of the US, but she "obtained a two-year reprieve from deportation under the Obama administration's deferred action program." She does not have proper visa status. We are agreed on that.
Foreigners can own a US LLC, independent of their visa status. Therefore, she is allowed to own a US LLC. Owners of an LLC can draw money from the LLC. Therefore she can draw money from her LLC. Are we agreed upon that?
What then is the illegal part about the way that she makes money from the work that she does?
"most certainly do NOT say that a foreign person without proper visa status may form an LLC and then work here"
Since a foreign person without proper visa status may form an LLC, the key part is the "and then work here." I agree with you that her LLC is not a reason to let her stay in the country. She gets to stay in the country because she has a two-year reprieve.
In that case, starting an LLC is a way to make it possible for her to get money, based on her work as owner of the company.
So if "work" is broadly defined to include work done by non-employees (eg, owners), then she's legally making money from her work, no?
If not, then what law is being violated?
I actually suspect that if she was deported, she could probably move just to the other side of the border, and use NAFTA Professional Services visas to come to client's sites in the US, and continue making money, this time without paying income taxes.
I’m not a lawyer.
That theoretically means it's illegal for a guy on a H1B to contribute to open source projects independently of his employer, fix his car, etc. Nobody gives a shit about that stuff in practice although.
It's slightly different if you have a contractor who must do billable work only when out of the country. Otherwise you couldn't do sales on a business visa, nor could you discuss a possible joint venture when visiting a friend on a tourist visa. So I don't think the courts would hold the rules to be that inflexible.
Of course you are. Look up the B-1 visa. It covers exactly what you're talking about.
A b-1 visa allows consulting with business associates. Isn't this pretty much something that allows corporate officers to do pretty much all duties of corporate officers? I mean what can't they do in this case?
* Show up
* Attend meetings
* Tell people what they should do
* Conduct business
That's what a B-1 is for. Now, my question is why that suddenly applies differently for a director who may be offering such services without direct compensation other than travel expenses than it would, say, the CTO?
And if the government were to admit the director doesn't need anything more than a B1 to attend the directors' meetings, they had better be able to say what makes that different from the CEO other than pay.
Now, none of these address residency which is where I think you'd have to draw the line since there is no relocation involved. Now, I suppose you might say "should != must" but that ends up being really weird.
Here's my hypo. Suppose a US company ends up having a CEO in Canada. The Canadian CEO travels to the US once every year for the director's meeting and a meeting with top-level employees. My contention is that a B-1 (or VWP entry) would be sufficient.
The lady in the article is not covered by the B-1 immigration status since whatever visa or authorization (if any) she had has long since expired. By law she supposed to remove herself immediately from the country, get deported, etc.
> All work performed in the exhibit area is under union jurisdiction and under safety jurisdiction. Show management and all exhibitors are expected to comply with the unions and with fire and safety requirements in effect.
> All work involved in the construction, touch-up painting, dismantling, and repair of all exhibits may fall under union jurisdiction. This work is to include wall coverings, floor coverings, pipe and drape, painting, hanging of signs and/or decorative materials from the ceiling, placement of all signs, and the erection of platforms used for exhibit purposes.
> Full-time employees of exhibiting companies may setup their own exhibits provided that one person can accomplish the task in less than one-half (1/2) hour without the use of tools.
So, was that restriction you mention based on US immigration restrictions, or on local venue restrictions?
Here's a directly relevant example of allowed volunteer work, quoting from Duke University's Visa Services page at http://www.visaservices.duke.edu/volunteer.html :
> VOLUNTEER: A person skilled in computer programming volunteers his/her services to a nonprofit/charitable organization such as a substance abuse counseling center to help them design a computer based intake system to log their calls. While the "work" of computer programming would normally be a paid activity, note that in this circumstance it is performed for a nonprofit/charitable organization which traditionally depends on "gifts in kind" (items, resources, or services donated) to conduct its business. The programming is a gift of time and talent to an organization that depends on such gifts, with no expectation of payment or a future job.
I think it is two questions....
1. Is it legal to be living in the US? No, in that case (you are correct)
2. Does it break additional laws to be working in the US in this situation? I doubt it. Traditionally there is a distinction between "employees" and "corporate officers."
1. They can deport you anyway.
2. It isn't clear that the LLC is violating any laws for having corporate officers who run afoul with immigration laws.
3. It isn't clear that the corporate officer is subjected to any additional penalties for such work.
If you aren't going to spend an additional day in jail or have additional legal sanctions for certain behavior, then the argument is entirely academic.
In short, yes they can throw them out of the country. My question is.... What other penalties come up for doing the work? If there are none, then it doesn't matter, the only real crime is overstaying the visa, entering illegally, or the like.
And yes immigration can make their lives worse if they want to return. But immigration can do this even if no laws have been broken.
So my question: What, if any, additional penalties attach to an illegal immigrant for the actions of serving as a corporate officer?
Corporate officers are just as much employees as anyone else. Where is this idea that they're something else coming from?
By the way, 8 USC 1325(d):
"Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both."
This would seem to parallel 8 USC 1325 (c) which is clearly intended to target straw marriages existing solely for immigration reasons.
Note that neither of these provisions only targets the immigrant party. Both appear to target US citizens as well (for example, agreeing to a sham marriage or a sham business deal aimed at an immigrant visa).
The fact that these provisions apply to both immigrants and citizens is irrelevant to the point.
You can't accidently commit fraud.
For that matter, if I travel, and happen to do work while in another country that would also be in violation of immigration laws?
I guess at least visiting heads of state get a diplomatic waver...
(Yes, I'm being snarky, but I'm also serious -- I wonder what the the technicalities actually are -- never mind that you'll probably only be deported if you're doing blue collar work...)
This leads to all kinds of interesting questions.
If you are an artist and here on a business visa, are you allowed to paint on your own canvas? Are you allowed to buy or sell paintings that you paint here in the US? I would think so. You might not be able to paint a mural for hire though.
> Artists: An artist coming to the United States to paint, sculpt, etc. who is not under contract with a U.S. employer and who does not intend to regularly sell such art-work in the United States.
By which argument? What job are they doing? Who's paying them? If they're making money off it, then yes, they probably should be deported. If they're doing work someone else could be making money off of, they should also probably be deported.
> For that matter, if I travel, and happen to do work while in another country that would also be in violation of immigration laws?
You would have to consult the laws of the other country in question. I'm sure the only way you could even possibly hope to make this argument in the US is if the company has no US suppliers, customers, or other US-related interests whatsoever. But even that is extremely doubtful.
The general rule for immigration is this: If it's not authorized, it's unauthorized. Unless you have clearly and unambiguously established that it's authorized, don't do it.
> I guess at least visiting heads of state get a diplomatic waver...
Hardly. In the US, they'll need an A visa, just like every other visiting official.
Usually yes. The clincher that it's basically unenforceable and undetectable is why it practically possible in the first place. I'm pretty sure enforcement starts happening when: you stay there longer than a typical tourist visa, money starts landing in their countries bank accounts. You'll still have to file income tax returns somewhere too.
>By that argument, everyone visiting open source conference "sprints" should be deported?
Usually that is covered by the B-1 visa they are entering. The B-1 visa is very expansive. The concept behind many US immigration laws is basically "Are you doing work a US person could do and getting money from a US source, be it corporation, person, etc? If your not, then we are far more OK with that than the opposite." If it's a conference hackathon where nobody usually gets paid anyway, then it should be ok.
Sometimes these differences create loopholes. Most often, though, they just create the illusion of loopholes.
Understanding the law in its correct context requires a lot background knowledge on each particular body of law, which is why it's always worth consulting with a lawyer when stuff like your personal freedom is on the line.
For example: As a student you can have an expired F1 visa in your passport, but as long as your I-20 document is kept valid and you are attending school you are fine. The visa is only of concern when crossing the border.
This also applied for regular B visas, if it expires on day X you have until day X to cross the border, but the maximum duration of your stay is determined by the officer, regardless of the remaining visa duration.
By the way, they refused to renew my papers because I dropped out of school to be the CTO in a startup who made it to a notorious national journal.
Wow. Just wow.
Really, regarding France, just start an Ltd in the UK and hire people in France (evil grin).
I am a part owner of a UK LTD (http://www.efficito.com) and neither our stockholders nor our directors, nor our officers are from the UK. It made it slightly harder to get a bank account opened in the Netherlands though.
That's effed up.
Often, they don't realise this until they're ~20, whenever they first apply for a passport - and they have to go through a lengthy process of applying for citizenship, which can take up to 5 years (or longer, what was that backlog?) and still might not be successful. Which can kind of mess up your holiday plans.
(In fairness, they can at least get a job!)
(a) Parents will immigrate with their kids knowing that they won't have legal residence status. I know some immigrants are escaping dire poverty or persecution, but not all. So I think parents have some responsibility here.
(b) Plus, the US is relatively lax in enforcing immigration laws. People do (a) and get work, send their kids to school, buy a house, etc. There's no way you could get away with that in (say) Japan.
At 20, should they have a legal right to be there?
Absolutely. After all, if 13 years is not enough to locate and deport them those people have a right to a continued existence in the place where they are now completely at home and integrated. Anything else would be inhuman.
Especially since the fail to deport is not because of lack of want or try, but because of evading checks etc?
I'm all for granting asylum for legitimate cases in small numbers, but "came here because my country sucks" or multi-million people migration is not good if the local population doesn't want it.
Actually, with regard to results, it's not extremely different to an invansion and can even help to prepare one later on (such tactics of getting people to mass migrate to another country/region, have been historically used to disrupt population dynamics there and let a third party to have leverage on the original local populations, e.g by China in Tibet and numerous others, even back to the Roman empire).
Some of those things might not apply when talking about small percentages of immigrants or the US (who as a great power has little to fear seriously), but are legitimate concerns for smaller nations.
You're not supposed to "vote with your feet". That's called "fleeing" and those who do it are "cowards". You're supposed to fight and make your country better, including bringing down an oppresive regime etc. For ages, even women and children have fought for freedom and for making the world a better place, including risking their lives. Rosa Parks, for but one example, didn't "vote with their feet".
As for "completely open borders" that either happens when all the earth is a united country (where everybody can vote for the general leadership), or is just crazy talk when there are sovereign countries that are more and less powerful.
As for the crazy talk, I can definitely imagine a world where there are no border controls but where countries are still sovereign to greater or lesser extent. There are vast regions in the world where we have exactly that situation right now, I don't see why it couldn't apply to the rest of it. The current leader of North Korea might agree with you that this is crazy talk, but then again, that's exactly my opinion of him.
If you are a contractor trying to register as a company, you need to put a Social Security Number for each owner/officer on the registration forms (in most [all?] of the United States). Persons who aren't authorized to work can get an ITIN (Individual Taxpayer Identification Number) which is a restricted Social Security Number. Restrictions include no ability to collect benefits and expiration after five years.
EDIT: By "register a company" I meant that if you have an ITIN you at least have a number to put in that space on the registration form. Whether or not the jurisdiction will accept the number will vary. Whether or not banks in the area will let you open an account will vary by jurisdiction as well.
In somewhat more detail: http://www.ssa.gov/pubs/EN-05-10096.pdf
See http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/1125/~/t... for more details.