Remote work in the U.S for a foreign employer

If you are a digital nomad exploring remote employment for a U.S. company or a foreign national who is not a U.S. citizen or lawful permanent resident and wishes to work in the United States, in this article, we’ll show what options you have and explain what documents you need.

We will also address the most common questions: Is it okay to work for foreign companies online? Can you be paid to a foreign bank account? Can you trade stocks online? Can you set up a company? Can I volunteer to get experience? If you are asking yourself even one of the above questions, be sure to read the following article. 

Definition

Unauthorized Employment

According to the federal regulations at 8 C.F.R. 274a.1(h), the term “employment” generally refers to a relationship where an individual provides services or labor, and is remunerated for these services. This remuneration can include housing, clothing, food, or other benefits. You must remember, that, accepting any kind of remuneration for service can result in a violation of visa status if done without work authorization. The above regulation in subsection (12) lists the classes of visas that provide work authorization.

Volunteer work

In the case of volunteer work, any authorization or work card is not required. Note that state labor and workers’ compensation laws generally do not allow someone to “volunteer” for a position that is usually paid. As long as you aren’t being compensated for your volunteer work, you shouldn’t need one.

Self-employment

The Board of Immigration Appeals has ruled that “employment” includes self-employment. Referring to students, running a business is a violation of student status. See Matter of Tong, 16 I&N. 593 (BISA 1978).

Investment

Passive investment in the United States without a work permit is possible. However, temporary visa holders can manage their own investments, such as stocks and real estate, and can even buy a working company, as long as they do not provide any work or services and are not actively engaged in business. It is important to remember that each situation is evaluated individually. In Bhakta v. Immigration & Naturalization Service, 667 F.2d 771 (1981), the court held that a foreign national was not engaged in “unauthorized employment” when he owned a motel chain. However, in Wettasinghe v. United States Department of Justice, Immigration & Naturalization Service, 702 F.2d 641 (U.S. App. 1983), the court found a violation of status when a student purchased ice cream and ice cream trucks and rented them to vendors. The present case emphasized activity in running a business. 

Creating something to sell

What if someone writes an article and gets a royalty from a magazine that publishes it?  Or paints a painting and sells it online?  In our opinion, this may fall under unauthorized activities without proper work authorization, since it involves receiving payment for the work. If you are creating something for sale, we recommend consulting an immigration lawyer or a company specializing in immigration law, like PassRight.

Working remotely for a U.S. company while living abroad

In the era of digital nomads, many specialists work remotely for companies located across the world. When companies shifted their work from the traditional office model many non-Americans were interested in job offers from U.S. companies. If you obey the local laws regarding visas and taxes as a non-American you can work remotely for a U.S. company from your home country or anywhere in the world. 

Who needs a work permit to work in the US?

An Employment Authorization Document (EAD) to work in the U.S., can be applied for:

• Students
• Fiancées of US citizens
• Asylum seekers or refugee status seekers

For a complete list of these categories, see Form I-765 or the Employment Authorization Application, which you must complete by applying for an EAD.

Foreign Nationals

Foreign nationals who are not yet citizens or residents and live in the United States need an EAD. This is a work permit issued by the United States Citizenship and Immigration Services (USCIS).

However, applying for the EAD to work in the US legally depends on your immigration status:

1. Temporary workers: You have some type of visa for non-immigrant temporary work. The most common are: H-1B, H-2, H-2B, H-3, E, L-1, J-1, O, P, and R.
2. Permanent workers: You have an immigrant visa based on employment, such as EB-1, EB-2, EB-3, EB-4, or EB-5.
3. Students: If you have an F-1, M-1, or J-1 student visa, you can work if an OPT or CPT application is approved. Your college has to help you process your EAD. J-1 students need to complete additional steps.
4. Asylees and refugees: You can apply for an EAD to work when your request is approved (final or conditional), or if 150 days have passed and your case has not been decided, then you can also ask for permission to work.
5. TPS: If you are in the U.S. under Temporary Protected Status (TPS), you may qualify for an EAD.
6. DACA: People who are protected under the Program of Deferred Action for Childhood Arrivals (DACA) can also apply for an EAD and work, even if they are not citizens or permanent residents.
7. Personal or domestic assistants: Foreign individuals who come to the U.S. accompanied by another foreign national, U.S. citizen, or permanent resident and serve as domestic assistants or employees may also need an EAD.

At this point, it is worth quoting Chapter 3 of IRS Publication 519, Tax Guide for Foreign Nationals in the U.S. Any income from services rendered to a foreign employer by a U.S. resident is considered “U.S. source income” unless the income meets ALL THREE conditions:

1. the total annual income from such services is less than $3,000; 
2. the nonresident alien is physically present in the United States for no more than 90 days per year; 
3. the services are provided under a contract with a non-resident alien, foreign company, or foreign corporation.

Temporary work vs. visa

In some cases, you may need a temporary work visa instead of an EAD. These are immigrant and nonimmigrant visas that allow a limited stay of employment in the US. They come in different types and apply to different occupations. As we mentioned, in addition to temporary visas established specifically for employment purposes, there are certain non-immigrant visas and other immigration statuses that may qualify for work permits. Individuals who fall into these categories must apply for work authorization. Some you can obtain on your own, while others must be obtained through a petition filed by an employer on your behalf. If you want to know more about it – feel free to contact us. 

Applying for an EAD

If you qualify for an EAD you should take the appropriate steps:

• Complete and submit Form I-765
• Submit the form and documents to USCIS
• The mailing address depends on the type of application and immigration status
• Pay the application fee of $410 + $85 biometrics fee
• Include any additional information they ask for, which varies depending on your status

After submitting your EAD application, you will receive:

• Notification of receipt of your application
• A deadline for biometric services and an appointment for an interview (in some cases)
• A letter with the final decision

Can the government find out about illegal employment?

The U.S. government can find out about unauthorized work through tax returns (if they are used to support a green card application, for example) or through a resume or line in a visa support letter that is not thoroughly vetted.  Most importantly, the US government is increasingly using the Internet to look for unauthorized work.  If a company has a website or online presence, the USCIS can find out about it through a simple Google search.

Conclusion

Can a U.S. employer hire someone living abroad as an Independent Contractor? The short answer is Yes. This scenario appears to be the easiest and most viable option for short-term, casual engagement. However, you have to make sure to abide by home country regulations including taxes. It is important to know that foreign workers can not perform work in the United States without valid work authorization. Therefore, many firms ask for work authorization. If you want to know more about how to secure work authorization and go through the whole process smoothly, feel free to contact our PassRight attorney.