Smudging the Borders

Immigration, the Internet and the Online Job Market

Part III

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Freelancing and Telecommuting for Immigrants

The Internet industry has done more than just boost the high-tech workforce. It has, in fact, opened up an entire new online job emporium that is fast turning into a world of opportunity--albeit confusing--for many foreign workers. It is also quickly becoming a gray area where the INS is concerned.

With the proliferation of online jobs that people can do from home or on the road, such as Web design, online journalism, database maintenance, Internet research and so forth, many foreigners are coming to the US and bringing their jobs with them. Quite innocently, they believe that if they continue to get paid to a bank account in their home country, they will be doing nothing wrong. Imagine that XYZ, an American-based company, uses independent contractors (freelancers) from all over the world. It is perfectly acceptable for an independent to live in Paris, work for XYZ and receive payment in his or her home country. But let's say that this worker's spouse got a job transfer to the US, and the two relocate to New York. In most cases the worker would assume that s/he could continue with XYZ. The problem is that now we have a foreigner in the United States, working for an American company, without having a visa granting permission to do so.

Siskind suggests that in cases where the worker is to be paid as an independent contractor, h/she might want to launch a formal company (the nature of which involves doing the same freelance work already being done) and sponsor him or herself for an H-1B. He stresses that an office would need to be set up and the operation would have to be run as an all-out legitimate business in terms of administration and taxes. The INS has been balking at self-petitioners in recent instances, Siskind says, but he maintains that it could still be worth a try in terms of obtaining a temporary work visa.   Self-sponsorship, however, will definitely not be acceptable for a green card petition, because the rules about "no available American for the job" are especially strict when it comes to permanent residence.

If the worker is going to actually be employed as a telecommuter (off site or at home employee rather than freelancer), then the company may need to file for an H-1B or H-2B on the individual's behalf.

So... what if the employing company is based in the foreign national's home country? Most people are very surprised to learn that still then, they cannot work here without a visa. Even an aspiring foreign author is theoretically not supposed to be scribbling in his journal on the lawns in Central Park if he ever hopes to get paid for those scribblings. It is pretty difficult to take things like this seriously, especially when most people would get away with this kind of thing scott free. After all, who would ever know?  Certainly all kinds of freedom and civil rights issues crop up, and justifiably so. But think twice before doing something that could cause endless immigration problems buried under an ambiguous layer of red tape.

Using your laptop on the beach might be a big no-no if your visa stamp says "tourist"

Take for example, an American who was recently deported from Australia for "intent to work" while on a tourist visa. The evidence of this crime? Well, he had his laptop with him, along with various business documents. Since he owned an (American-based) Internet business operable from his laptop, he was able to travel freely, or so he thought. (Australian immigration laws are similar to those in the US, and in fact are considered a lot more lenient.)

In another instance, a woman who frequently visits the US from Canada was taking online courses from an American-based school. When she casually mentioned this to immigration authorities, they told her she would no longer be able to enter the US without a student visa. This is a pretty ridiculous notion, and yet she ended up having to make a choice between her online courses and visiting the States. In the end, they made the choice for her, and despite having quit her courses, she was denied entry because of this "suspicious" status.

A British friend of ours recently had a very difficult time gaining entry to the US to be with his wife, an H-1B holder. He is a screenplay writer by profession, and they suspected that he would be spinning his tales from a computer in the US and then selling them abroad.

Even though one of these incidents took place in Australia and one involved studies instead of work, all three are clearly indicative of how smudged the lines can get with the concept of the "work place" becoming ever more ambiguous.

An I visa, for "representatives of online media," would be appropriate for a lot of online work, says Siskind. Even though he suspects that this hasn't yet been used very much for online endeavors. For other jobs that are transportable overseas (database management, for instance) an L visa would be the best bet.

For US and foreign citizens alike: When you travel for any length of time, if you intend to use your laptop on the beach--perhaps to catch up on those overdue e-mail responses to colleagues--better think about getting a business or working visa so that no one can accuse you of working illegally!

Good luck!  Remember to check out the key links below.

Jennifer and Peter

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Important Resources

Visa Jobs
A subscription-based service that matches up skilled foreign workers with the employers who are willing to sponsor them.

Job Search
Our guide Alison Doyle leads you in your USA-based job search.

Job Search: College Grads
Guide Virginia Smith helps college grads land a career.

Job Search Canada
Guide Brian Mairs has the scoop on all aspects of job search in Canada.

Job Search - Technical
Guide Steven Niznik has the ins, outs and hot jobs for techies.

Telecommuting
Catherine Roseberry, our telecommuting guide, helps you find jobs that let you work from home.... or wherever.

Visa Information
Your starting point for learning about different types of visas.

Global Business
Guide Paul Bishop explores and reports on worldwide business affairs.

Siskind's Immigration Bulletin
A monthly collection of immigration news and updates.
 

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© Peter and Jennifer Wipf 1999-2004.  All rights reserved. No duplication without explicit written permission.