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Comment by tokenadult | Hacker News Reader

The analysis from patio11 is essentially correct. It is NOT legal to be living in the United States unless one has a citizenship or visa status that allows doing so. What forming an LLC does is avoid many of the enforcement mechanisms that reveal persons who are in the United States illegally. But if you are found anyway, nothing about forming the LLC will protect you from being deported. You don't gain an immigration status by forming the LLC--what you gain is a way of making a living. If you are making a living in the United States without work permission, you are still an illegal immigrant. Simply put, the newspaper headline is WRONG--there is nothing legal about working in those circumstances.

(Obligatory disclaimer: I am simply describing the immigration law of the United States as it is, not as I might desire it to be.)

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Minor nitpick: Visa status != Immigration status

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.

Correct

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.

Exactly you do not need a Visa to be in status. Another example of valid status without the need of visa is I-485 pending status. Lots of people who have applied for i-145 ( adjustment of status from non immigrant to immigrant) are legally allowed to be in the US and enter the US without Visa.

"Simply put, the newspaper headline is WRONG"

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.

Every country that limits immigration (most) makes limits on working in the country without proper status. The United States immigration statutes and regulations most certainly do NOT say that a foreign person without proper visa status may form an LLC and then work here. That may not be the easiest part of immigration law to enforce, but the newspaper headline says "legally," and that is just flat wrong.

Yes, I understand and agree with the first sentence. The fuzziness is in what those limits are.

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?

While located in the USA, you cannot do any sort of work unless authorized by your visa to do so unless it's like the B-1 telecommuter (getting paid by a non-us source into a non-us bank account). That includes unpaid and/or volunteer work.

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.

Someone in the US without a visa that allows work is definitely allowed to do volunteer work, with restrictions. The major restriction is that it cannot be work that someone else would get paid for.

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.

But if you are a principle or officer of a US-based company, surely you aren't required to stop your work just because you are in the country. The duties haven't changed.

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.

> surely you aren't required to stop your work just because you are in the country

Of course you are. Look up the B-1 visa. It covers exactly what you're talking about.

http://travel.state.gov/visa/temp/types/types_1262.html

Um.....

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?

The point is that the visa is required to perform the work. There's no exception for "corporate officers", it's still work, and you must have a visa for it. I use the existence of the B-1 to demonstrate this.

How do you distinguish between salaried top level management work and suspending that work (still remaining on salary though) while "consulting with business associates." Inquiring minds want to know.

I didn't say you needed to. I used the B-1 to point out that a visa is required even for things that could be considered "top level management work". No visa, the work is illegal. If you have a B-1 visa, obviously some "top level management work" is thus authorized. What part of this is so difficult to understand?

But the B-1 allows you to consult with business associates according to the link you provided. For a salaried worker whose work can be easily considered to be nothing more than "consulting with business associates" (i.e. a CEO, CTO, and the like), it seems you can:

* 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.

Yes the B-1 would be sufficient for a director, board member, significant stockholder, etc to do such work legally. The thing is, B-1 visas expire, you can only be in the country for 3 months at a time, maximum 6 months a year.

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.

Bring to mind: A frind of mine plans and builds equipment for expos. When he went over to the US he brought all finished work and plans but was required to hire someone to assemble it :/

Many conference venues have workplace rules which prohibit vendors from setting up their own booths. Eg, quoting http://www.pacvet.net/doc.asp?id=264, selected arbitrarily:

> 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?

I checked back: In this case it was local venue restrictions.

Thanks for checking!

Indeed.

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.

The L visa for multinational managers or intracompany transferees is possibly more suitable assuming that she has already hired a few people and would have some revenue to show. She can also possibly file for an O visa on grounds of extraordinary ability in arts or business given her circumstances, with a waiver that essentially asks the US government to overlook her immigration law violations…

I’m not a lawyer.

Ummmm

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."

The immigration laws do not distinguish based on the label you attach to your employment status. A non-citizen cannot legally perform work in the United States without an immigration status that explicitly allows it (e.g. permanent residency or some form of work visa). Neither ICE nor the courts will be impressed with the argument that you don't call yourself an employee. They don't care. You're performing work in the United States. Nothing else is relevant.

This is interesting. By that argument, everyone visiting open source conference "sprints" should 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?

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...)

> By that argument, everyone visiting open source conference "sprints" should be deported?

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.

http://travel.state.gov/visa/temp/types/types_2637.html

> For that matter, if I travel, and happen to do work while in another country that would also be in violation of immigration laws?

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.

Hm. But the article/discussion relates to forming a company (that charges for services) and doing the work "for free". So it would seem either that is legal, or open source work is also illegal?

Also note that uncompensated amateur performances are ok, but paid ones are not. So presumably if you are doing symbolic work without pay (say, the first shovel of a groundbreaking) the fact that they could be paying someone doesn't make it employment.

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.

http://ciudadjuarez.usconsulate.gov/hnivb1.html lists many categories of people who may be in the US under a B1 visa:

> 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.

That's more permissive than I would have expected.

My points are:

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?

> 2. It isn't clear that the LLC is violating any laws for having corporate officers who run afoul with immigration laws.

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."

regarding 8 USC 1325(d), the plain language seems to suggest that merely starting a business in order to earn money is not what is barred by the law, but rather trying to fraudulantly start a business so as to engage in fraud regarding entrepreneurship visas.

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).

"entrepreneurship visas" are not mentioned, "immigration laws" are.

The fact that these provisions apply to both immigrants and citizens is irrelevant to the point.

But the statute is aimed at fraud right?

You can't accidently commit fraud.

Law has namespaces. What "employee" means for labor law can be different from what it means in tax law, which might be unlike what it means in corporations law, which can differ again from immigration law.

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.

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