In the aftermath of COVID-19, more and more professionals have embraced working remotely, and a rising number of professionals are wondering what are the legal consequences of setting up a remote-working arrangement in a foreign country while continuing to be paid from their employers from their home countries. Since this is technically not working for a U.S. employer, would someone on a B-1/B-2 or ESTA be able to do this?
This is a tricky situation, and lawyers are divided on this issue. Immigration law makes it clear that a visitor to the US (business “B-1” or pleasure “B-2”), cannot engage in any form of “work” in the United States, which is usually defined as the performance of skilled or unskilled labor. However, it is an open question on whether (or when) working remotely for a foreign employer, while staying temporarily in the United States on a B-1/B-2 visa, counts as “work.”
As a general matter, business visitors are admitted under the B-1 classification to participate in seminars or conferences, negotiate contracts, consult with business associates, or undertake independent research, for example. During their trips, B-1 business visitors may engage in activities that are “incidental” to “work that will principally be performed outside the United States”, provided that the principal place of business and accrual of profits remain outside the United States. However, if your activity in the United States is closer to performance of skilled or unskilled labor (even if done remotely), especially for a prolonged period of time, it may be difficult to argue that your activities in the United States are “incidental” to your work performed in your home country.
Visitors for pleasure, such as tourists, are admitted under the B-2 classification, and “may not engage in any employment.” It is generally understood “employment” in this section refers to employment by U.S. entities, but the regulations do not specify this. Does performing services remotely for your foreign employer count as “employment”?
This provision is likely not meant to prohibit tourists staying in Florida for a week, for example, from spending a few hours in their hotels, during their vacation, to reply to work emails and answer calls, etc. However, the implications could be different if an employee of a foreign firm sets up a home office in a room that they rented in New York City, spends 8 hours every workday logging in and performing all of their duties from their computer remotely, and continues to do so for six months, even if the foreign firm pays the employee at their foreign bank account. There could also be tax consequences.
In sum, given this ambiguity in what is considered “employment,” it could be a safer choice to avoid engaging in productive activity in the US which is close to performing “skilled or unskilled labor,” regardless of the entity that is employing you, especially if you are doing so for a prolonged period of time.
If you are interested in finding out more about this issue, please do not hesitate to reach out to one of our lawyers for a consultation.
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