SHOULD AN EMPLOYER ISSUE AN H-1B WORKER A 1099?


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From time to time clients who are working in the U.S. on an H-1B visa tell me that their employer has begun to issue them a 1099 at the end of the year instead of a W-2 to reflect their wages. Usually, the employer stops taking the usual deductions from the worker’s pay checks as well. In effect, the employer has begun to treat the employee as an independent contractor. My clients want to know if that is OK. The answer is very straightforward – treating an H-1B employee as an independent contractor is not allowed. By definition, an employer/employee relationship much be maintained at all times when the worker is in the U.S. in H-1B status. Treating the H-1B as an independent contractor runs contrary to the law. It will likely result in serious problems for the H-1B worker at the time she or he applies for a visa at a U.S. Consular post. It may also result in denial of the H-1B extension when it is filed with USCIS.

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