While you are working for a US employer on an H1B visa, you may be offered opportunities to take on additional work through another employer or entity, sometimes as a freelancer. Unfortunately, these types of work are almost always forbidden while on an H1B visa.
H1B visa workers are authorized to work in a specific job and for a specific employer. There are a few other ways to generate income but most types of side jobs are prohibited.
Can I freelance on an H1B for a US Company outside of my primary employer?
Generally, no. You can’t do any productive work for anyone other than the employer that petitioned for your visa. You must conduct only the duties outlined on your form(s) I-129. That means you can’t do paid work for yourself, for another US employer as a wage employee, or for another US company or US-resident individual unless it is specifically permitted on your I-129.
In order to do additional work through a new employer, you need to be separately authorized through an additional H1B petition and it needs to be denoted on an additional I-129 form.
Regarding freelancing specifically, USCIS looks closely at the “employer - employee” relationship that H1B visa holders have. What they are looking for is that the employer has the “right to control” the employee. In general, freelance and independent contractor work arrangements do not meet this requirement and thus, they are not permitted for H1B visa holders. Here’s more information on the USCIS site about employer-employee relationships.
Can I work for more than one employer while I am on an H1B visa?
H1B workers may work for more than one employer but must have an approved I-129 for each employer. However, most freelancing arrangements lack a I-129 and are therefore prohibited.
Can I freelance for a foreign (non-US) company online while I am in the US on an H1B visa?
On an H1B visa, the answer is generally no. This income from a foreign source is still considered “US source income” and constitutes unauthorized work because it is not authorized on your I-129 unless it meets ALL of the following criteria:
Criteria 1: Total earnings per year from this work is less than $3000
Criteria 2: Your stay in the US is fewer than 90 days
Criteria 3: The services are performed under contract with a foreign corporation, foreign partnership, or nonresident alien
These rules are described in the US Tax Guide for Aliens: https://www.irs.gov/publications/p519
Can I be an independent contractor while I am on an H1B?
No, you can’t be an independent contractor while you are on an H1B visa. An independent contractor is the same thing as a freelancer. As an H1B visa holder, you are authorized to work only for the company on your Form I-129. Since freelancing work would not typically be authorized on an Form I-129, you can’t be an independent contractor for a US company or individual while you are on an H1B.
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How would I get caught for doing unauthorized employment while on an H1B?
The reality is that it may be hard for USCIS to find out about unauthorized work, but there are mechanisms for them to find out and instances where they may be more prone to check. If your unauthorized work involves W2 or 1099 income, the US government can find out about unauthorized work through your tax returns. USCIS does not have direct access to your tax returns, which are processed by the Internal Revenue Service, but they can request them. In addition, someone like a neighbor or coworker might report you to USCIS, prompting USCIS to investigate your work status and tax returns. USCIS is also within their right to request your tax documents when you apply for a green card. In addition, when applying for a green card, you may be asked to complete form G-235 which includes your employment history. In addition, if USCIS suspects that you are performing unauthorized work, they may sleuth about you on the internet for evidence.
What can happen to me if I accept and perform unauthorized work while I am on an H1B?
If you accept and perform unauthorized work while on an H1B visa, you would be violating your visa status. If caught, you may be required to exit the United States and make a new entry to "reset" the I-94 term of admission. If you have engaged in unauthorized work while on an H1B visa, you should speak to an immigration attorney to discuss your options. Here is more information on the USCIS site about the barriers you can encounter when trying to adjust your status if you have performed unauthorized work.
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