We get this, and similar questions, from our clients frequently. This is a very complex issue and every situation is different. However, there are some key considerations you should think about. The key questions are:
- Are you carrying out the activity for profit?
- Are you just trying to get rid of excess goods you have in your possession?
- Are you deriving an income from the activity?
- Looking at your activities “objectively” would you say you are conducting business or not?
I think that the last point is the most important to keep in mind. If it feels like you are starting a business, and you are intending to make a profit from your activities and you are consistently selling goods then the chances are USCIS will see it as a business. As the saying goes – “if it walks like a duck and talks like a duck, it most likely is a duck.” It is also important to remember that USCIS takes a very liberal view in terms of what constitutes doing business. This means that they would be more likely to find something is a business than not. Going back to the saying, all USCIS would need is to see that it walks like a duck, and they would say “it is most likely a duck, unless you can prove to us it is not.” That being said, selling some goods on eBay – just once or twice probably is not going to run afoul of any of these rules. A good resource to look at for some of these issues is the IRS website and publications where they define for tax purposes (and I emphasize, this is NOT necessarily how USCIS will rule) what is a business and what is a hobby.
Why should you be concerned about whether what you are doing is considered a “business” or not? If USICS feels that you have started a business and you do not have the appropriate visa to work for that particular business, then you could be found to have worked without permission and this could jeopardize your immigration status and your ability to get permanent residence in the United States. Therefore, this issue is extremely important and something you should look into BEFORE beginning any such activity. Remember, USCIS can look into may business activities – anything that is your tax returns or reported to the IRS, they could decide to review. They can, and do, troll through the internet in some cases as well to see what they can find about a person – and if they see an Etsy store or something similar, this could raise questions in their mind.
If you have any questions leave a comment below or send me an email. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.