Friend moving to USA with US citizen DH and US citizen baby on ESTA

[esta2024]

Asking all british spouses of US citizens.

My friend has decided to go to the USA with her American husband and baby on an ESTA (they were living abroad for years, baby born abroad), live with family while remote working for her current employer (not a US employer and money paid to overseas bank account), and on day 91 apply to adjust her status to a green card.

based on what i have read online, it is likely to succeed despite the fact that she would be overstaying on esta but it seems to have succeeded for many people as they are married to american citizens and in bona fide relationships and its difficult to establish intent to immigrate from the onset (as people say they are just visiting and then 'changed' their minds).

is this true, I can't quite get my head around this. Why doesn't everyone just do this and they wait 1-1.5 years for consular processing? I understand that by doing it this way, you give up all rights to appeal and if it goes wrong, you would be deported and banned from the USA.

yes and he has been filing his taxes for years.

He and my dh had an argument about this. DH worked for an american investment bank for years so had a rudimentary understanding of tax/reporting regulations for US individuals. He claimed that IRS would not know she exists and her salary would be paid into their overseas bank account. So its fine. And in his book, remote working on Esta is fine.

Playing devil's advocate here, suppose they don't give all their bank accounts and while it is fraudulent, could they be caught?

Well there is FATCA, which requires foreign financial institutions to report to the IRS. Around 300,000 financial institutions worldwide report foreign account holders to the IRS.

Then there’s the fact that wire transfers of money into the US are monitored by the IRS.

And the fact that hiding income from the IRS is a felony for which you can be massively fined and sent to prison.

And doing all of this while trying to go through a rigorous legal and financial process to be allowed to become a legal resident… honestly my mind boggles.

You also say that her salary will be paid in to THIER overseas bank account. So when he has to chow HIS bank accounts, her salary will be shown on the joint account?

I think (rightly) the system overlaps in so many places that it will be impossible to maintain one story that stands up to scrutiny of all systems. Which is what will be needed to gain a visa to live and work in the US.

Oh FFS, they mustn’t compound the situation by getting in trouble with the IRS!

Anyone who holds foreign accounts has to complete a form called an FBAR every year detailing the institution’s name, their account number, etc. The bank will also submit this info. to the IRS so it needs to match up.

He claimed that IRS would not know she exists and her salary would be paid into their overseas bank account. So its fine. And in his book, remote working on Esta is fine.

A tourist working temporarily while on an ESTA with no Social Security Number could probably hide from the IRS. But that’s not what she is.

She’s applying through USCIS to become a legal resident. She will be filing a tax return with her spouse. They’re going to be filling in their SSNs on every imaginable document and application. They’re going to be signing legal declarations about their income both to the IRS and potentially other organizations, especially if they are on a low income and asking for help with things like health insurance, food stamps, heating assistance, unemployment insurance.

They are staying with family so no need for food stamps or heating assistance. when i say low income i mean something like the equivalent of £55k to £65k combined.

That works out to a combined income of £4k optimistically. That is a low income by USA standards esp if you have private healthcare to pay for and daycare costs (which i understand is at least 1000). Plus they have to run a car as i have seen the place where his mum lives and there are no trams and buses whatsoever, that is probably easily another 800 dollars per month assuming its a used car. Food costs are a lot higher in the usa.

£4k nett is a pretty normal household income in the UK as well as the country they were living in. In the UK, it is tight for a family but assuming you only have 1 child in daycare and a relatively low mortgage, it is livable, perhaps you need to do all your shopping in Aldi and never go out and perhaps run a very banged up car(with no loan) or no car, but you will not go without healthcare or food or not having your basic needs met. I have a friend who is working part time as a civil servant (due to her health problems) and probably on close to minimum wage but she has a baby in a London daycare 3 days a week, bought a 700k 4 bed house in zone 4 London 2 years ago and manages pretty well . This is because she married someone who was born in 1968 and owned a london flat mortgage free plus had some savings so presumably has a low mortgage (and council tax in London isn't higher than cheaper houses outside London). Her husband is an academic on a modest income as well but yet they can pay for daycare and will never worry about healthcare costs. If this is possible in London, it is possible pretty much everywhere else. I have friends(outside London) on modest incomes of 25k to 30k but they can afford holidays and leisure activities and also own their homes (very modest flats) and they have access to healthcare. And the friends outside london who own have had no significant help from bank of mum and dad (though I guess they are in their 30s, its much harder for Gen Z).

To me, it seems a totally different ball game in america, in UK, if you get your housing costs down due to buying a cheaper home or help from previous generations, you could conceivably live well on a low income due to relatively cheap food and free healthcare, in addition to the fact that its possible to not have a car in many cities.

Which is why i say their remote income is low not because it is generally low, but i think for an American lifestyle which includes private healthcare costs and car access, i don't understand how they can make it work on their current incomes. Someone please correct me if I have the wrong understanding of this.

idk if its joint but what if its in her own name...

They make it work by applying for things like food stamps, heating assistance, WIC, subsidized health insurance, childcare subsidies, etc.

They're probably above the limit for WIC and food stamps, but there's other help out there.

For example, Obamacare policies are subsidized for families of 3 earning up to $99k.

On an income of less than $83k per year (in my state) they'd qualify for childcare subsidies.

But of course they have to fill in their SSN, household income etc on all of these forms, and if they're still hiding her income they'd now be lying to a whole bunch of other governmental organizations as well as the IRS and USCIS.

@esta2024 No one on this thread has been in exactly the same position as your friend, I.e. entering in an ESTA and then applying for a spousal visa, but as @ZZTopGuitarSolo says, I imagine that the scrutiny will start once her ESTA expires. If they’re resident in the US in 2024 (or part of the year), they’ll need to file 2024 taxes and probably submit that tax return as part of her application.

If they suspect and can check bank accounts it will be pretty obvious she's working.

They're married. When he files his US tax return, his married status is included. Most couple choose to file a joint tax return as it has some tax benefits. However, he can file his own return but he will need to declare she is a non-resident alien with no US income and at this point it gets very complicated indeed.

I'm in banking and have done a LOT of work on FATCA and CRS (the international version of FATCA basically). Overseas accounts / income will most definitely be picked up.

Your friends are idiots. In fact, I'm not sure they're intelligent to even be classed as idiots. They are breaking laws left, right and centre. This will not end well for them.

He claims IRS doesn't know she exists.so has he been omitting her name for the past 4 years!

Didn't you say that they got married in the US??

Honestly, it just gets worse and worse. I actually hope you're making this whole story up as it's beyond farcical.

I really am not. I wish I was.

She definitely got legally married in the usa in a courthouse. I watched a video od it as I only attended the celebration which happened months later..

Her MIL proudly told me that this was the smart thing they did to ensure her residence rights in the usa. Heaven help us all..

Isn't anything below 100k exempt from tax if earned overseas. I think I read somewhere that you are exempt from filing a us tax return if you earn below that threshold

There are 5 statuses you can use when you file your taxes. Single, married filing jointly, married filing separately, head of household, and qualifying widow(er) with dependent child.

If he's been filing as Married Filing Separately, Married Filing Jointly, or Head of Household, then the IRS knows he has a spouse.

If he's been filing his taxes as Single then he's looking at charges for tax evasion, given that he's married.

The limit is more like $25k for a head of household - below that you're exempt from filing, depending on what status you're using.

You actually file more paperwork if you're claiming a credit for tax paid abroad - there are extra forms to submit. It's a PITA. We had to do it for years.

Do you need to include your spouse's name? All this is really interesting thanks.

https://www.irs.gov/pub/irs-pdf/f1040.pdf

Yep, right there in the Filing Status box.

Your friend and her DH sound incredibly entitled.

Also, I would say that the details you have given are pretty outing in relation to their religion and the country they need to leave 'immediately'.

Yes of course you do. I had to be included on my spouse’s tax returns as soon we got married. It didn’t matter that I didn’t actually live in the US until later. As your friend will be actually physically in th US then yes, she needs to file with her husband.

That’s bollocks. It doesn’t actually matter where you get married as long as the US recognises marriage in the country where the ceremony is performed and that’s like 95% of the world.

I got married in the US on an ESTA (with the intention of returning to the UK afterwards, which I did) but it gave me no rights to remain or have us any advantage when applying for the spouse visa. Why do people make up stuff like that?

You don't have to be included.

You can file as "married filing separately".

There are financial advantages to filing jointly though.

Iirc, for states with a tax treaty with the US (like the UK), as a US citizen living abroad, there are offsets and credits, so you avoid double taxation.

I don't know what the US tax situation is for this man because I don't know where he has been living.

As mentioned, there are offsets or credits. Not a dispensation from filing.
And this is for countries with a tax treaty with the US.

If he hasn't been filing US tax returns but has earned an income while living abroad, he is in deep doodoo.

Americans living and working abroad are well advised to consult a tax expert and not base important decisions on vague understanding of the tax rules.