Can H1B work from India, Canada and get Salary in USA (H4 stay, Sabbatical, long term unpaid leave)?
H1B salary in USA using SSN while working remotely in India waiting for visa stamp or maintain Canada PR. H1B status lost on leaving US. File US tax return.
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You may be able to work on H1B from home countries like India, China, or Canada as long as the US employer allows it.
Normally, US employers will not run US payroll for an extended period. Talk to your employer to see if they can pay you outside the US instead of firing you.
You can also contact a consulting company and get payment in India while they collect your salary from the US employer for consulting services.
For example, most IT consulting companies like TCS or Infosys would start your Indian payroll as soon as you exit the USA.
This article will discuss:
Maintain Canada PR, Get US Salary on H1B?
If you want to stay in Canada to maintain your PR and still want to keep working for your US H1B employer and draw a US salary in a US bank account, then it is not legally possible with US immigration law.
Your US H1B employer needs to show you as an employee and have a physical presence in the US.
You can work remotely but as soon as you enter Canada, you lose your H1B status. Your visa status in the US is defined by your i94.
In this case, your US employer can still hire you but will have to find a way to pay for your services without using your H1B. Usually, it can be done by showing you as a remote consultant. An employer can then show the salary payments to you as their business expense.
You can also keep visiting the USA using your H1B visa but then it may be hectic. Many people enter the USA from Detroit on H1B daily/weekly and maintain residence in Canada. This is probably the best way to get the best of both worlds.
A similar situation may arise for people who are thinking of going to Australia and still maintaining their H1B visa. The answer remains the same.
Salary in the USA, Working in India
Working from India on the US payroll is not allowed unless you have a US work visa like H1B or L1 or you are working as a consultant (hired by some US company).
Many people who exhaust their H1B 6-year quota leave the USA and wait outside the USA for their H1B extension result. They usually work remotely if their job allows it. Example: Many IT workers can from their country.
The most important point to note here is when you leave the USA, US immigration law does not apply to you.
You have to abide by the work visa rules of the country where you are currently working from.
Example:
If you are an Indian citizen and have left the USA, you can work for any employer in India. It does not matter if it is a US-based employer or an Indian company.
- Legally, if you are not in the USA on a valid work permit like H1B, your company cannot show you as an employee in their accounting books and cannot pay you a salary in US dollars.
- Your US employer should pay you through a contracting company in India. Legally, your employer can hire a contracting company who can then get work done from India.
You can receive your salary through this contracting middle vendor.
Example:
If you have completed your H1B 6-year quota, your employer cannot show you as a legal employee. You must leave the USA and wait for your H1B extension (if filed with pending PERM) result outside the USA.
You can work remotely and can get paid by a third-party employer who may contract with your US employer.
US Tax – Working from India?
The US taxation will come into the picture based on your stay in the USA in the relevant financial year. If you pass the substantial presence test from the IRS, then, yes, you will have to pay US tax for that year.
Example:
If you worked in the USA from 1 Jan to 31 July and then left to work from India, you will pass the substantial presence test. You should file a US Income tax return and show Indian income too from Jan to Dec.
Related: How to file US Tax on NRE Interest 1099-INT
Salary Using SSN, Working from India
I strongly recommend NOT receiving any payment on your SSN while you are working from India.
If the salary is received for the short term like 1 to 5 months, then you are fine. But, if you keep receiving a salary for more than 6 months, you will face taxation issues.
You would be considered working in the USA without any valid work authorization if you receive payment on your SSN from a US company.
This may or may not be tracked by USCIS but it is best to avoid it.
Working From India on a Holiday
Working remotely from India is allowed if you are traveling to India on vacation or short business trips. You can also receive your salary in USD while you are away on your vacation.
Usually, people will take PTO (Paid Time Off) from their H1B US employer and then travel.
Can H4 dependents stay in the US while H1B is out of the US?
Usually, there is no issue with H4 staying in the US while H1B is traveling outside the US for a short period.
This short period is not clearly defined.
Generally, I would suggest keeping this period to about 1 week to 12 weeks.
I have seen people stuck outside the US due to COVID-19 or H1B form 221g admin processing for even 8 months (when they got DS5535) and their H4 dependents kept staying in the US all this time. USCIS did not create an issue with H1B extensions in these cases if the reason for staying outside for an extended period was genuine and could be explained.
H1B on long-term Sabbatical, H4 stay in the US?
If you are thinking about taking a sabbatical from your H1B job and staying outside the US, then, keeping H4 dependents in the US is not recommended.
H4 status in the US is tightly coupled with H1B status. If H1B goes on long-term unpaid leave, the US employer will probably stop the payroll processing.
Once the H1B payroll stops and the H1B primary exits the US, the H1B status is lost. Once the H1B status is lost, the H4 status is lost automatically even if the H4 visa stamp in the passport or the H4 i797 is still valid.
Ideally, if H1B is planning to stay outside the US for an extended period, which I suggest to be 3 months+, then H4 dependents should also exit the US with H1B to be on the safe side.
H1B International Assignment/ Remote work
Working for a US company from Europe, Canada, the UK, and India does not count as your H1B time when you go for a project that spans more than 6 weeks.
Once you leave the US, H1B is out of the picture completely unless you leave for a short duration like 1 to 12 weeks.
If you plan to work outside the USA for more than 12 weeks, it is best to take your H4 and L2 dependents too with you.
FAQ
You can work from India and get a US salary as long your US employer can legally pay you a salary in the USA account.
If you are stuck in India, Canada, or Mexico due to US visa form 221g delays, you can work remotely for a short term for up to 5 months.
There is no legal rule defined for the number of months. We have suggested 5 months based on US taxation.
Ideally, you should try to change your US payroll to your home country payroll if you have to stay outside the US for longer than 2 months.
Your employer should be informed about this remote work.
If you do not get paid in the US, there is no question of deducting SSN and Medicare taxes.
If you do get paid in your US account in dollars, then you are liable to pay SSN and Medicare taxes along with federal and state taxes.
You will also need to file a US tax return at the end of the financial year.
You can work remotely from India if you are outside the USA waiting for your US visa as long as your employer is fine with it.
For example, In the case of the Coronavirus pandemic, the US embassy had canceled all visa appointments and many people were stuck in India.
They were able to work from India.
