Hello

I live in Oklahoma and I work in OPT. My employer is planning to pay as per diem (accounts payable) for 2 months when I go to school (fill my opt to H1 gap). They are paying for my lodging, mileage, fees and other expenses.

Is it legal for them to pay me during that period because I would be a non employee for those 2 months? (My HR checked with the company lawyer and they said it is legal to pay me during that time but I want to double check that info)

If I get a 1099 misc, will I be able get my per diem deducted or do I have to pay taxes on that?

Thanks for your assistance.

If all they are paying is per diem, then paying it under Form 1099-MISC IS legal.

You would file Form 1040NR and use schedule C to report the income, then claim the corresponding per diem costs to offset the income.

The net effect is little or no taxes owed.