Legal Question in Immigration Law in New York

H1b1 tax question?

I have a question about the tax law for H1b1 visa holders. I am working on for a compnay for past two years on h1b1 visa. last year i earned about 60k and they gave me 1099 and i paid my own taxes. this year i have earned about close to 100k and i probably have to pay my own taxes as well. they are going to give me 1099 again this time instead of W2. as far as i know the company should be responsible to pay my taxes and i should be getting a W2, i told the company about that and they said for the job they have hired they will give 1099 only. I dont want to be responsible for paying 50k in tax for this year, do i have a case where i can held the company responsible for paying my tax?


Asked on 1/15/07, 4:34 pm

1 Answer from Attorneys
William Frenkel Frenkel Sukhman LLP

Re: H1b1 tax question?

There appears to be a problem in how your employer is treating you from at least the tax perspective. H1-b visas are for employees only and 1099 forms are for independent contractors rather than employees. Note that this is not the issue of who is paying your individual income taxes --you are responsible for filing and paying your federal and state tax returns. It is the issue of the employer having you on its payroll and making appropriate payroll withholdings. If what you described is true, your employer may be in violation of law, both immigration and tax. However, your status as an H-1b1 visa holder may also be endangered because the validity of all employment-based visas relies on the employer's compliance with applicable laws. This is potentially a very sensitive situation so before you approach your employer you should obtain legal representation for yourself.

The above reply is in the nature of general information, is not legal advice and should not be relied on as such.

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Answered on 1/15/07, 7:31 pm


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