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I'm wondering if my wife (a US citizen) and I (a Canadian citizen) and our two young children (both Canadian citizens) can move to the US to reside, while I keep my current job working for a Canadian company? To provide a little more background, right now we currently reside in Canada. I work for a small, private, Canadian company in which I've been working remotely from home, due to the pandemic. My family and I used to live in the US a few years ago, but moved back to Canada for family reasons. My kids and I hold US PR (green) cards, so I believe I'd be able to work in the US without any problems. But I'm wondering how it would work for my Canadian employer? And also the tax implications for this scenario? Can my Canadian employer continue to pay me as they currently do? Would they have to change my status from employee to contractor? And what about taxes in both countries? Would I file in Canada as a non-resident, and file in the US as a resident with foreign income? I'm not sure how it all works or if it's at all possible. I'm sure it can get complicated, so I would absolutely love your thoughts on my situation.

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  • How taxes are filed in that situation is an interesting question I don't know the answer to, but if you've not been living in the US for a few years now and have not been filing US resident tax returns it is pretty likely your US residence is now considered abandoned and you green card is no longer valid. You may need to apply to immigrate all over again.
    – Dennis
    Oct 6 at 15:33
  • By the way, your income all these years after you "moved back to Canada", including right now, is subject to US tax. Since you had a green card and you never filed I-407 to relinquish it, you still pass the Green Card Test, and you are still a resident alien for US tax purposes, which means your worldwide income is subject to US tax. You would have had to file US tax returns each year if you had more than minimal income, though it may be the case that after applying the Foreign Earned Income Exclusion, Foreign Tax Credit, and/or tax treaties, you will not end up owing any actual tax to the US.
    – user102008
    Oct 6 at 16:52
  • Thanks for your reply. Yes, I understand my green card might be considered abandoned, as you mentioned, since I haven't been living in the US for several years now. The card itself hasn't expired, but I agree about my physical presence being outside the US for so long, it is a high possibility that it may now be considered abandoned. In regards to filing US taxes, yes, I (we) have been faithful every year at filing both US and Canadian taxes while in Canada, since my wife is a US citizen & I'm a US PR card holder. The US portion usually nets out to not owing. Thanks again for your help!
    – SAL
    Oct 7 at 14:59
  • I'm having difficulty understanding how it's possible for your children not to be US citizens. I believe you'd have to work as a contractor; being an employee usually assumes that you perform your work in the jursidiction (or a jurisdiction) where your employer has a place of business.
    – phoog
    Oct 7 at 20:21
  • @phoog, "I'm having difficulty understanding how it's possible for your children not to be US citizens." My first thought is that they were never U.S. citizens. He married a Canadian women with Canadian children, and they all resided in the U.S. after marriage, obtaining green cards. Then they moved to Canada with none of them ever being naturalized.
    – ouflak
    Oct 9 at 18:16
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My family and I used to live in the US a few years ago, but moved back to Canada for family reasons.

There is a fair chance that you would be found to have abandoned your residence in the US. In that case you'd need to reapply for permanent residence "from scratch."

My kids and I hold US PR (green) cards, so I believe I'd be able to work in the US without any problems.

The procedure to return to the US without applying again to immigrate depends on a few things that you haven't mentioned in the question, but since you say "a few years ago," it's most likely that you would need a returning resident visa. To qualify, you have to show that you intended to return to the US when you left and that your temporary visit abroad was "protracted" because of circumstances beyond your control. You may want to ask an immigration lawyer whether it makes sense to try this; it might be that you should just apply for a new immigrant visa based on your marriage.

As outlined in the comments on the question, your children are US citizens under the Child Citizenship Act, 8 USC 1431 (also known as INA 320), so for them you should just apply for US passports, which should at least be less expensive and less bureaucratic than applying for immigrant visas. For the State Department's guidance on adjudicating citizenship claims under the Child Citizenship Act in connection with passport applications, see the relevant section of the Foreign Affairs Manual, 8 FAM 301.10 ACQUISITION OF U.S. CITIZENSHIP UNDER THE CHILD CITIZENSHIP ACT.

But I'm wondering how it would work for my Canadian employer?

They probably have to hire you as a contractor. Employment law, including payroll taxes and income tax withholding, tends to assume that the employee works in a place where the company does business and resides in a place that is close enough to commute from.

And also the tax implications for this scenario?

If you're not doing any actual work in Canada, as far as I understand Canadian tax law (which is not very far), you won't owe any tax in Canada. Your income will be fully taxable in your place of residence, which means you'll owe US federal income tax as well as state and local income tax if they exist where you live.

Can my Canadian employer continue to pay me as they currently do?

No.

Would they have to change my status from employee to contractor?

Yes (unless they have, or are willing to set up, an entity in the US that can put you on its payroll as an employee).

And what about taxes in both countries? Would I file in Canada as a non-resident, and file in the US as a resident with foreign income?

Only to the extent that you performed work while you were actually in Canada. Income is typically attributable to the jurisdiction where you are when you do the work, not to the jurisdiction from which your salary comes.

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  • "although it appears that if you apply for the passport outside the US you may need to apply for a certificate of citizenship first" why?
    – user102008
    Oct 12 at 22:48
  • @user102008 the FAQ "Must the Child Get a Certificate of Citizenship Before Applying for a U.S. Passport?" (third link in the answer) says "...you do not have to apply for a certificate of citizenship for your child before applying for your child’s U.S. passport. If you and your child reside abroad, you will need to contact U.S. Citizenship and Immigration Services (USCIS) to apply for a certificate of citizenship under Section 322 of the Immigration and Nationality Act. The child may apply for a U.S. passport once he or she receives a certificate of citizenship from USCIS."
    – phoog
    Oct 13 at 5:59
  • INA 322 is a naturalization process for children who reside abroad and did not get permanent residency; that process requires applying and taking the oath before the child gets citizenship. You were talking about INA 320, which is the automatic citizenship for permanent resident children living in the US with a US citizen parent, which is completely different.
    – user102008
    Oct 13 at 16:11
  • @user102008 thanks, I missed that the two paragraphs refer to different sections. With that in mind, it's not nearly so confusing. I'll edit accordingly.
    – phoog
    Oct 13 at 20:04
  • I doubt that the answer that he can't keep his current salaried job in Canada is correct, partly because I know people who reside in one country and have a regular employer in the other and partly because Article XV (plus Article XXIV) of the US-Canada Tax Treaty covers the tax treatment for that exact situation, including double taxation avoidance. I agree it is probably cleaner not to do it that way but if he does payroll tax and withholding issues can be resolved when he files his returns.
    – Dennis
    Oct 16 at 1:43

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