The rise of remote work during and following the COVID-19 pandemic means you can essentially work from anywhere. If you own a vacation property in the US or are planning an extended vacation, you may be wondering if you can continue working remotely for your foreign employer while here. But, is that allowed?
Department of Homeland Security has not explicitly said whether remote work in the US for a foreign employer is allowed. Because of that, immigration attorneys have frequently discussed all sides of this question.
To make a determination, we must look to the relevant immigration regulations. It is our understanding of the regulations that remote employment in the US for a foreign employer is prohibited and will count as unauthorized employment.
Those entering the US as temporary visitors for business or pleasure (B-1 or B-2 visitors) are not permitted to engage in active employment in the US. 8 CFR 214.1(e). B-1 visitors are able to engage in a limited scope of business activities. Please view our related blog post here about permitted B-1 activities.
8 CFR 274a.1(h) defines employment as:
any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent…[emphasis added]
Those in other nonimmigrant statuses are only permitted to work where they have work authorization by way of their nonimmigrant status (i.e., individuals in L-2S are authorized to work just by holding that status) or who have obtained an Employment Authorization Document (EAD) from USCIS. 8 CFR 214.1(e). Visitors do not have work authorization by way of their nonimmigrant status nor are they eligible to apply for an EAD.
Therefore, immigration regulations specifically prohibit visitors from engaging in any service or labor in the United States performed for an employer. Any employment in the US without authorization will constitute a violation of your nonimmigrant status. Unlawful presence will begin to accrue as long as you remain in the US without maintaining nonimmigrant status.
Beyond violation of your nonimmigrant status, work in the US – even for a non-US employer – can have tax consequences.
If you plan to work while in the US, you will need to have work authorization such as a valid nonimmigrant visa or status. Contact the Law Offices of James D. Eiss today to schedule a consultation regarding your employment options in the US.