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Non-resident alien in the US with EAD (work authorization)

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Active Member
Xinyi F Member Since: May 13, 2018
1 of 16

Hi all,

 

I saw a few similar posts in the community, but as far as I see none had satisfactory/updated information regarding this issue, so I'm asking again - it's a bit long, thanks for reading through the whole thing before replying.

 

Question 1: Is a non-resident alien (visa holder) currently located in the US, with an EAD and an SSN (and a state ID), allowed to join UpWork? In other words, these are people who ARE legally allowed to work in the US in general, but are they allowed to work on UpWork SPECIFICALLY? 

UpWork's eligibility page no longer mentions specific visa types, so some answers in similar posts in the past may no longer be relevant. https://support.upwork.com/hc/en-us/articles/211067778-Eligibility-to-Join-Upwork

 

Question 2: if the answer to question 1 is "yes", then how do they choose between "U.S. peron" and "non-U.S. person" in their account? Neither of the current definitions/requirements of these two categories given on UpWork fits the circumstances described above. (So technially the person would be lying if they chose either.) However, one possible solution I see is to choose between the options in accordance with their "resident/nonresident for tax purposes" status. I'd like someone (moderator/customer support) to confirm that this is the correct choice, or show me the right way if this is not.

 

I am asking here because I have not actually started working on UpWork and therefore can't seem to reach customer support by phone/email. I found it unreasonabe that I can't reach customer services to have a definite answer on this BEFORE I accept a project and start work.

 

Thank you in advance for any input! I believe it'd be extrememly benefitial for many freelancers for this issue to be cleared.

 

(However, please do not answer with "consult with an attorney...". This is not a legal question but an UpWork policy question. These people are legally allowed to work in the US and are aware of what tax form(s) they're legally required to fill. The issue is whether UpWork wants them to work on here, and if yes, how these freelancers can choose the correct options in their UpWork accounts in order to comply with the relevant US laws.)

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Community Guru
Preston H Member Since: Nov 24, 2014
2 of 16

The answers you may get here from Forum members will be well-meaning. But they are not necessarily going to be the same answers you would get from a government official or expert or specialized attorney.

 

Sorry, but that is just how it is. There are many times people will be told no, but that isn't the real answer. I wouldn't put all my stock in one source of information.

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Active Member
Xinyi F Member Since: May 13, 2018
3 of 16

Thank you for the reply Preston! Since I'm so new to this, I (perhaps naively) thought that moderators of this forum would have a somewhat official role in answering such questions?

 

Again, I do not think these are legal questions - *what* needs to be done legally is clear. I am really wondering *how* one can do that on UpWork. If someone from UpWork's customer support/management/whatever comes up to say "sorry, we just didn't think of these when designing the platform, so we don't really know either. Safest is to not work here at all." then I'd be perfectly happy to leave (...maybe not perfectly happy since I've spent hours setting up the profile etc.). I am getting a vague sense that that's the case, but hoping it isn't.

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Moderator
Valeria K Moderator Member Since: Mar 6, 2014
4 of 16

Hi Xinyi,

 

If the person has a legal permit or a type of visa needed to legally work in the U.S., they can register and work on Upwork as a freelancer. People located in the U.S. will need to complete their W-9 form in their Settings in order to access their earnings. We do suggest talking to a legal adviser about completing W-9 form and the information/documents necessary for it. Unfortunately, we won't be able to legally advise about it.

~ Valeria
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Active Member
Xinyi F Member Since: May 13, 2018
5 of 16

Hi Valeria,

 

Thank you for your prompt response! I believe your answer solves a major part, but not all, of my questions.

 

A nonresident alien (with all the circumstances I described in the original post) can have different "residency statuses for tax purposes": resident or non-residnet. Your advice seems to make sense for those who are "tax residents" i.e. those who should fill out a W-9. But for those who fall into the non-resident category, they should not fill out a W-9 as per IRS instructions (but a W-8BEN instead). In that case, is there no way for them to cash out their money from UpWork (unless/until they change residency statuses in the future)? I myself am currently a tax nonresident, and will become a tax resident in calendar year 2019, so if I understood you correctly, I can't withdraw money from my UpWork account until 2019.

 

(In addition, you basically advised nonresident aliens who are tax residents to choose "U.S. person" in their accounts. It's practically leading them to fill the right forms, but like I said earlier, technically they'd be lying. I hope UpWork can change the definition of "U.S. person" as shown on that account page to account for the circumstances I described.)

 

Please kindly answer my question (bolded) above, or let me know if I misunderstood anything you said. Thank you!

 

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Active Member
Hyo Jung K Member Since: Jul 4, 2018
6 of 16
Hi! Thanks for creating this thread. This is exactly what I was unsure of, and I think upwork should clarify if non resident, aka non-U.S. person authorized to work in the U.S can file W8 BEN instead of W9 to collect payment from upwork.

Have you still found the clear answer, by the way?
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Active Member
Xinyi F Member Since: May 13, 2018
7 of 16

Hi Valerie,

 

In case you missed my reply last time - please help me and Hyo Jung K (and many others) by clarifying whether tax non-residents can fill a W-8BEN (which is what the law demands) instead of a W-9 (which is what you/UpWork have told us to do).

 

Doremi

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Moderator
Valeria K Moderator Member Since: Mar 6, 2014
8 of 16

Xinyl and Hyo Jung,

 

If a freelancer located in the U.S. and would like to legally work while located there, they would need to be granted a status that officially permits them to work in the U.S. In that case they'll have either taxpayer ID or SSN, fall under a definition of U.S. person and should be able to complete W-9 form. Please, further consult with a tax adviser regarding this question.

~ Valeria
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Active Member
Hyo Jung K Member Since: Jul 4, 2018
9 of 16
when non resident u.s. person is authorized to work in the u.s., we can only file W-8BEN instead of W9. W-8BEN is equivalent of W9 for non-U.S. person.

Since upwork requires freelancers who work in the U.S. to file only W9, we are saying upwork should take W-8BEN from non-U.S. persons who are authorized to work in the U.S.

It is not to be discussed with tax lawyers, but to be discussed with upwork team.
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Active Member
Xinyi F Member Since: May 13, 2018
10 of 16

Valerie,

 

Please, this is becoming frustrating, so I'm going to use capital letters. Apologies in advance.

 

"In that case they'll have either taxpayer ID or SSN, fall under a definition of U.S. person and should be able to complete W-9 form"

 

This is incorrect. People on a visa, with work authorization (EAD), SSN, everything else you mentioned - they can be TAX NON-RESIDENTS and SHOULD NOT fill a W-9. If you're not aware of the existence of this category of authorized labor in the US, SAY SO, and report this issue to whatever UpWork higher-up there is.

 

If you think I'm wrong, PLEASE kindly provide evidence (an IRS website link, for example).

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