4

Is doing online work (making websites, programming, graphics, writing etc) in the US illegal if you're not a permanent resident and you are on a tourist visa?

Could you do it and get paid on a non-US bank account or PayPal without getting caught? What would be the consequences if caught?

Edit: as a user pointed out in a comment, I didn't specify whether the worker is a contractor or employee and whether the employer is a US person or entity or not. If you could please answer telling about both cases it'd be great.

  • Is the worker a contractor or an employee? Is the client or employer a US entity or person? – phoog Jun 3 '17 at 4:01
  • My question is hypothetical. If you could explain both cases it would be great! Also, I'm not very experienced in this kind of jobs. I suppose most of the times the worker is a contractor but still, if you could tell more about the two cases I'd appreciate it. – Cocobanana Jun 3 '17 at 9:34
  • There's a fair amount of material on this topic at Travel, and also a bit at Expatriates. I can do a write-up for you, if you're still interested after looking on those sites, but probably not before Monday. – phoog Jun 3 '17 at 14:53
  • I took a look but it's hard to gather sparse information. It would be better if I had a more specific answer to the question. I appreciate your will to answer, no hurry! – Cocobanana Jun 3 '17 at 21:35
1

Generally, yes, it is illegal to work in the US while present as a visitor. There are some exceptions for "business visitors" who must travel to the US to meet with clients or to supervise work being performed by US workers, but even then such a person should be in B-1 or WB status as a business visitor rather than B-2 or WT status as a tourist.

Working for a US employer is definitely prohibited, since, as noted by USCIS, income from a US source is disqualifying for a B-1 visa:

Requirement 3 - You cannot draw any salary from a United States entity.

It is permissible to conduct business activities on behalf of a foreign employer, but no salary may come from a U.S. source. In some cases, however, you may receive reimbursement from a U.S. source for reasonable incidental expenses incurred while in the United States.

As to working for foreign employers, you can have a look at Travel Stack Exchange, where the question I want to travel to the USA while working remotely for my non-US employer has several anecdotal answers describing visa denials and entry refusals for people who disclosed that they were planning to work remotely for their foreign employers. However, I found no unambiguous prohibition in Title 8 of the US Code nor in Title 8 of the Code of Federal Regulations. It is, however, very unlikely that it would be worthwhile to pursue a court challenge to the current policy.

As an aside, Canada has a different policy on this, as outlined in this Travel.SE answer (note that the category of "temporary resident" includes tourists):

Here's what the Immigration, Refugees and Citizenship Canada says about What kind of activities are not considered to be “work”?:

long distance (by telephone or internet) work done by a temporary resident whose employer is outside Canada and who is remunerated from outside Canada;

  • So if I live in the UK but work remotely for a company in the USA and get paid by them, then I can't go on holiday in the USA? Or if I'm a normal UK employee, my family wants to go to Disneyworld, but I would have to work remotely for my employer, I can't do that? – gnasher729 Jul 7 '17 at 17:02
  • 1
    @gnasher729 If you're a normal UK employee then you don't have US-source income; the income derives from your company's UK subsidiary, which is your actual employer. If you work remotely for a US employer that isn't paying you during the time you're in the US, that probably fits with the letter of the law, too. But if you work remotely for a US employer who gives you vacation pay, and you travel to the US during that vacation period, then I wouldn't be surprised if a CBP officer would deny entry. A court might disagree, but then again it might not -- if you can get it to a judge at all. – phoog Jul 7 '17 at 17:07
-1

A. Definitely legal if the entity paying you is domiciled outside the US.

When the entity is domiciled in the US, it depends on the nature of your relationship with it:

  • B. Legal if you are in a business-to-business relationship with the entity, i.e. they are paying your invoices as opposed to salary. That is, if you are essentially self-employed;

  • C. Illegal if you are an employee of the entity. That is, if you are on their salary payroll and they pay your taxes on your behalf.

Note that "Contracting" with a US entity normally falls under B, however this might not always be obvious for immigration / border control officials and some effort might be needed to prove you are within the law. One way to make this easy is to own a company registered outside the US and contract as the company as opposed to yourself as individual.

  • A: not necessarily. If the client is a foreign-domiciled corporation with a US subsidiary, and the contractor is in the US to work for the US subsidiary, that would be illegal even if the pay is coming from the foreign corporation. Furthermore, B is not generally legal. If it were, companies could hire foreign workers without proper visas simply by setting up shell companies in foreign jurisdictions or hiring legitimately unrelated foreign companies to send their employees to work in the US. – phoog Feb 2 '18 at 16:12
  • @phoog if worker is paid by foreign entity A, he/she cannot be regarded working for entity US-A, even if he/she spends working hours on US-A's premises. No pay — no work relationship. Regarding case B, US companies certainly could equip VWP/tourist visa holders with foreign shell companies to buy their labor if they wanted to, but that would be simply more hassle for them than to sponsor work visas. Both cases are indeed challengeable but still defendable in court; the legislation is just far behind to address rocketing popularity of online/remote work. – Greendrake Feb 2 '18 at 23:28
  • wrong. If the worker is, for example, developing a new website for entity US-A, then the worker is working for US-A. Our to choose another industry: suppose the worker is harvesting or packing strawberries in the US. Do you really think it would be legal for the worker to do that with a B visa if the worker were paid by a foreign company? I'd love to see a credible reference supporting that. You won't find one. – phoog Feb 3 '18 at 3:30
  • And sponsoring employees for work visas is a huge hassle for companies that already have foreign entities that could be doing this if it were legal. The number of work visas is far smaller than the demand. Why else would Microsoft have so many workers in BC? Why else would the annual H-1B quota be exhausted in a matter of weeks? – phoog Feb 3 '18 at 3:33
  • @phoog My New Zealand-domiciled ltd. is contracted to a US company. Although I am normally in NZ, occasionally I travel and do the work from wherever I am. According to your logic, if I happen to be travelling the US and working from there, especially if the client invites me for a meeting, I will be breaking the law? This just does not make any sense. – Greendrake Feb 3 '18 at 4:29

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.