F-1 status and Deferral

I am a Canadian and have been accepted to school in the US for winter quarter (January 2012). I am going to move all of my furniture 30 days before class starts and get my F1 status at the same time.

I am wondering if it is possible to defer my classes until the Spring semester if I decide I want to work remote with my Canadian company and travel back to Canada once per month for a week (change from F1 back to tourist) after I have already crossed the border with furniture?

If I am able to defer once I am there with F1 status, what is the process and how difficult is it to do?

Thanks in advance for any help

I am wondering if it is possible to defer my classes until the Spring semester if I decide I want to work remote with my Canadian company and travel back to Canada once per month for a week (change from F1 back to tourist) after I have already crossed the border with furniture?

This seems a bit doubtful. Neither F1 nor B2 (tourist) status allow you to work in the USA--and working remotely for a Canadian company while in the USA is still considered working in the USA.

B1 (business visitor) status might work--however there would need to be a business reason, consistent with B1 status, why you are spending time in the USA working for your Cdn company rather than in Canada. Plus I'm not sure if a status change from F1 to B1 is allowed. Also the so called 30-60 day rule might limit your ability to change status so soon.

You could leave the USA after moving your furniture and officially deferring your studies, and then attempt to re-enter the USA as a B1 business visitor. However, the school will be required to notify SEVIS of your sudden withdrawal from school. When you apply to re-enter the USA they'll see that you are jumping around from status to status, and this could be a huge red flag. There is a good chance you could be denied re-entry.

Basically I wouldn't recommend the course of action you are pursuing.

Thanks for your reply. It's obviously not worth the risk to switch statuses!

My classes begin January 9, 2012 and I will arrive in the US 30 days prior to orientation (the report date on the I-20) which is scheduled for Dec 6, 2011 - Will I be violating any laws if I am still employed and being paid by my Canadian employer up until the beginning of school? If I give my last day of work as the day before school starts is that considered illegal? If this is somehting that is legal, I will probably take that course of action. If I were to give notice for the day before school started, my last pay cheque (check) would be a few weeks after school starts since pay periods for my company are 2 weeks past work already done... Would this be an issue when I file taxes in Canada or the US?

Thanks for your help with this complicated issue

The time you get the money is not crucial.

The question raised by CalGC is whether what you are doing is allowed in any non-working status, such as tourist (b2), student (F1), spouse of worker (TD, H1), etc, or even another working status.

The rule of thumb is that as long as the work is (a) for a foreign entity, and (b) that foreign entity has no US ties and (c) neither the entity nor the worker is benefitting from their physical location in US, then this is not a violation of the current status.

Example, if you work for IBM canada, you could not do this work in US legally; if you work for a completely Cdn comanpy, but are in US doing market research in a particular location in US, that would be B1 work, which would require entry in B1. If you were working for a purely Cdn company that was selling your work to a US client, that would be violate your status.

If you and firm satisfy all 3 requirements, you can enter in F1 and finsih up your work.

As to taxes, I answer this type of Q at forums.serbinski.com.

You will be remaining a Cdn tax resident because of your F1 status in US, so will report world income in Canada as usual, and only US-sourced income on a 1040NR, so the timing of any pay will not affect your taxes.

The question raised by CalGC is whether what you are doing is allowed in any non-working status, such as tourist (b2), student (F1), spouse of worker (TD, H1), etc, or even another working status.

It's certainly one of the questions I raised. My other concern was with whether it is wise to use F1 status as a convenient way to get the OK to move furniture across the border and then switch to some other status. I was concerned that this would at worst be illegal and at best raise red flags.

The rule of thumb is that as long as the work is (a) for a foreign entity, and (b) that foreign entity has no US ties and (c) neither the entity nor the worker is benefitting from their physical location in US, then this is not a violation of the current status.

Interesting. I hadn't realized there was ever an exception. I'm wondering how hard this test is to meet in practice. For example, if a Canadian firm has US clients, but no continuous presence in the US and the worker isn't working with those US clients, is this OK? Also I wonder how "the worker is [not] benefitting from their physical location" would be interpreted in practice? Surely if the worker is in the USA they ALWAYS have SOME reason why they are there--and thus they could always be said to be "benefitting" from the physical location. It might not always be a benefit to the Canadian firm, though.

I spoke with my school and they basically said that anytime I come back to Canada, I can work for my company or wherever I want for that matter, but while I am physically in the US on F1 I cannot work unless it's on campus or an approved off campus employer that is specific to my field of study.

My company needs me, so I know they will be willing to employ me when I come back to Canada after orientation and come back on breaks, but I have no idea how that will work out logistically with taxes and am still trying to be extra careful about not breaking any rules!

As an f1 student who was employed at the begging of the year in Canada - How do you file taxes?

I wonder how "the worker is [not] benefitting from their physical location" would be interpreted in practice? Surely if the worker is in the USA they ALWAYS have SOME reason why they are there--and thus they could always be said to be "benefitting" from the physical location. It might not always be a benefit to the Canadian firm, though.

The benefit I am referring to is the "unique" benefit from being in US to do this work; ie. the person could not do this work without being in US. I gave the example of doing research on a particular US market, or studying a particular 'thing' that is physically located in US. Doing soild collection study in AZ for example. This could not be done anywhere else than physically in US, thus this would not be incidental to their main purpose for entering US, the worker should get a TN or B1. Remember the worker can be self-employed, so when I say the worker is benefitting, I'm referring to him as either the firm itself or the employee.

As to what constitutes US presence for the firm. that is a little more tricky, as you point out.
As our posters university pointed out, F1 has restrictions; B1 also has restruictions, but they may not be the same. The safest course is to do what the school suggest: go to canada to work.

I'll answer the tax issues on serbinski, but as I pointed out, you will not be considered resident of US in all this -- because a student on F1 cannot be a US tax resident for a few years, so it will be like you are going to school in BC or ontario. You wioll only report US income in US, and ALL income in canada.

while I am physically in the US on F1 I cannot work unless it's on campus or an approved off campus employer that is specific to my field of study.

That is the condition of f1. You cannoy get US authorization for any other work that you describe. The question is whether working as I described earlier really requires such authorization. I've described conditions where it would, and where it might not.

You could not for example work at any US firm. You could not work for a Cdn firm doing research at the US university. But you could, in my opinion, write a report or program or modify code, or give advice for the Cdn fimr while sitting in your dorm.

Otherwise, even those going to Florida on vacation would be in violation of their B2 status by looking at e-mails (which they are not).

See what I'm getting at?

You cannot do any work that requires US authorization other than what is specifically allowed on your F1, B1, TN, H1, etc. The question is whether these functions I describe need such authorization. These Q's have been asked MANY times by others who have come down to US for one purpose and who cannot freely work, but who still have the possibility of a job in canada or anywhere else in the world.