July 12, 2022
Work from Anywhere? The U.S. Visa Situation Explained
Can a foreign national, without work authorization, work remotely from the United States for an employer located abroad? This question lies squarely at the intersection of immigration & tax law, and the short answer is no. There is no law that allows working remotely in the U.S. for a foreign employer.
Chapter 3 of IRS Publication 519, US Tax Guide for Aliens spells out why such remote work is not permitted. Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:
- total annual earnings from such services is less than $3,000;
- the nonresident alien is physically present in the United States for not more than 90 days in the year;
- the services are performed under contract with a nonresident alien individual, foreign partnership, or foreign corporation.
Many visa categories such as B-1/B-2, H4 without EAD etc., do not permit the foreign national to earn any “U.S. source income.” Not a problem if the employer is not U.S.-based, right? Not so fast.
If the visa holder does earn any significant income from a foreign source while spending most of the year in the U.S., it will be considered “U.S. source income” because of their physical presence in the U.S., and it will be taxable in the U.S. From the immigration perspective, earning any U.S. source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation.
This may be difficult news to deliver to a transferee if they’re hoping their spouse can work remotely in the U.S. for a foreign employer – but to do that compliantly, the worker needs authorization to work in the U.S., even remotely.
Contact us for help in keeping your transferring employees and their families compliant in the new world where “work from anywhere” is expected.
Sterling Lexicon brings our caring and personalised approach to your relocation programme needs, while Graham Adair has the experienced, helpful, and dedicated team to deliver visa and immigration expertise and compliance. See our inbound-U.S. Immigration support services at U.S. Visa and Immigration.
An Associate with Graham Adair, Ms. Kannan’s focus is employment-based immigration law. She has experience working on various types of non-immigrant visa petitions including family-based immigration. She is a dual licensed attorney admitted to the bar in both New York and India and the recipient of the “Best Law Student of India, 2018” Award. Ms. Kannan works with clients from a wide variety of industries including IT, Telecommunication, Biotech, Banking, Industrial manufacturing, Financial services and Hospitals. She is fluent in English, Tamil, Hindi and has an intermediate level knowledge of German and Telugu.