It depends. In this scenario, the Canadian is entering the U.S. each year several months at a time in B1/B2 visitor status. The rule is that B1/B2 status does not allow an individual to engage in any “work” in the U.S. “But I’m not working for a U.S. company, I’m working remotely for a Canadian company,” the argument goes. “Shouldn’t that be permitted?”
It is certainly helpful in this scenario that the “work” is being done remotely for a Canadian employer as opposed to a U.S. employer – in the latter case, there is no question the Canadian is violating the terms of their visitor status. In the former case, there is some room for this to be permissible – but only to a certain degree.
Whether a B1/B2 visitor’s activities constitute “work” in the United States is governed by a case called Matter of Hira, which lays out several factors to inquire, including:
- Is there a clear intent on the part of the foreign national to continue the foreign residence and not abandon their existing domicile?
- Is the principal place of business in the foreign country?
- Does the actual place of accrual of profits, at least predominantly, remain in the foreign country?
- Are the various entries into the United States plainly of a temporary nature?
- Are the activities in the United States incidental to the principal work being performed in the foreign country?
Although it has been noted that incidental work performed for a foreign employer remotely while physically visiting the United States, on its own, is not a violation of B visa status, in some circumstances the length and frequency of such visits and the continuing nature of such “remote work” situations may lead border officers to question the true intent of the Canadian visitor.
For example, suppose that a Canadian rents a room in Florida and stays there “working remotely” for 170 days, returns to Canada for one month, and comes back to Florida and stays there “working remotely” for another 170 days. Such a scenario is very risky because the border officers would question whether the primary intent of the Canadian is really to temporarily visit for pleasure, or is it to de facto “take up residence” in the United States? The latter is not permissible under the B1/B2 status, and if the officer is not convinced they may deny the visitor admission.
Especially in the aftermath of COVID-19, the line between where you’re physically located and the work you’re doing is increasingly blurred. Be sure to consult with experienced immigration attorneys who can advise you of the risks to be aware of and help you be fully informed on how your activities may be interpreted by relevant agencies and officers.
Related posts:
https://legalservicesincorporated.com/immigration/can-i-stay-in-the-us-on-a-visitor-status/
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