Remote Work and US Immigration Law

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Technology has changed the way everyone works, and it has created new issues in immigration law.

For example, can a US-based employer simply let a prospective hire do remote work while living in their home country while waiting for visa paperwork to clear? Or can an immigrant who is legally in the country on a different kind of visa do remote work for a company in their home country without violating work visa rules?

Some parts of this law are straightforward. Others are more complex. Here’s what you need to know.

Hiring a Remote Worker

It can take up to a year for a long-term employment visa to get approved. If you’ve found the perfect employee, this can present a problem. The employee might not be able to wait a whole year to get paid, and you might not be able to wait a whole year to fill the position.

Given the lag in the immigration courts, it’s wise to have a back-up plan, as in some cases it can take even longer than a year. And if the nature of the employee’s work allows it, the back-up plan may be to allow the employee to work off-site in his or her home country with the understanding they’ll be brought over when the paperwork clears.

You just have to be sure you handle the remote work correctly. You can’t put the employee on your US-based payroll and send checks to the other country.

You can classify the employee as a remote consultant. You’d write the check just like you would to any other vendor or consultant, and then you’d deduct their payment as a business expense.

You can also hire a contracting company in the home country who will pay the remote worker directly while sending you an invoice.

Working Remotely from the US

This subject is far more controversial, and lawyers don’t all agree. And there are a lot of factors which can impact whether you can work for an employer in your home country while living in the US.

There are some immigration lawyers who point out the immigration code interacts with the tax code here: under the US tax code, income from services performed for a foreign employer by someone present in the United States is considered to be “US source income.”

Unequivocally, you can do so on a F-1, J-1, or Q visa. These are the visas for academic students, exchange students, and cultural exchange students. These visas specifically state that you may work from home without designating that income as US source income.

Other attorneys may tell you the tax law and the immigration law are in conflict here. But the answer is still “maybe.”

You can minimize risk by performing work “in the cloud” on servers stored on foreign soil, by making sure your agreement allows you to work from anywhere in the world and that it was enacted before you entered the country, and by making sure you’re paid in foreign currency, via direct deposit to a foreign bank account. You can still access the money in the US via your bank card.

At that point, you just happen to be physically present in the US while doing the work, but as far as the American workforce is concerned, the impact is exactly the same as the impact would have been had you remained in your home country to do it.

But every case is different. This is one of those instances where contacting an immigration lawyer early can be helpful. By taking a look at your unique situation it’s possible to determine which side of the controversy your work falls on, and what you can do to remain compliant with the law.

See also:

What Happens When You Lose Your Job on an H-1b Visa?

The ABA Calls US Immigration Courts Irredeemably Dysfunctional

The Line for Immigration Grows Longer and Longer

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