This post is part of Priori’s new blog series “From Our Network,” where we feature lawyers in our network discussing important issues small businesses face. After every post, we give our readers a chance to ask the lawyer questions, and the lawyer picks 1-2 to answer. Today, immigration lawyer, Sarah Edgecomb, answers a reader's question about the immigration consequences of hiring freelancers abroad. As it becomes easier and easier to hire foreign workers through sites like Elance, many U.S.-based small businesses are relying on their labor and must make sure they are in compliance with immigration laws. What does your business need to know BEFORE you hire a freelancer from abroad?
What I am wondering is how do I handle hiring foreign workers who are working in foreign countries? AKA Independent Contractors in Europe & such. And how does it change if they are Americans living abroad?
There may be some international tax and employment law consequences for United States employers who hire workers living outside the U.S., but generally speaking there are no immigration law consequences. In other words, these workers do not need to be sponsored for visas so long as all the work they’re doing takes place outside the U.S.
Employers should be careful if they hire workers living outside the U.S. and invite them to the U.S. for work purposes. If the workers do not have U.S. work authorization and they come to the U.S. on visitor visas or through the Visa Waiver Program, they are only allowed to engage in limited activities while they are here. They can do things like sign contracts, participate in short-term training, consult with colleagues, or attend meetings and conferences. But they cannot perform the day-to-day work of an employee or contractor on U.S. soil without proper work authorization (e.g., a work visa, employment authorization document or green card).
The flip side of this situation is that foreign workers who hold work visas allowing them to live and work in the U.S. cannot perform contracting work for employers located outside the U.S. unless the international work is a requirement of the sponsored employment. So for example, a person from outside the U.S. who holds an H-1B visa that allows her to work for a U.S. company cannot perform contracting services for a company located in her home country while she’s here, unless the contracting services are required by the U.S. employer sponsoring her visa.
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