Comment by dalke | Hacker News Reader

Comment by dalke | Hacker News Reader

Parent Full thread

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.

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!

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.

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.

Reply on news.ycombinator.com