Can you work remotely from the US without a visa?

The freedom and flexibility of remote working has made the prospect of moving overseas more attractive and possible for more and more workers. If you’re considering the USA as a destination to work from remotely, you’ll need to give careful consideration to the US’ strict visa requirements and working restrictions for foreign nationals.

In this guide for foreign nationals, we explain the rules on remote working from the US and highlight the risks of breaching US immigration laws.

 

Can you work remotely from US locations without a visa?

As more and more companies adopt remote-working policies across the UK, with no geographic requirements restricting where work takes place, it can be tempting to snap up an opportunity to earn a living from one’s location of choice, the United States included.

However, for a number of different reasons, not least the rules relating to employment authorization, it is generally not possible for a foreign national to work remotely in the US for an overseas employer, even on a temporary basis. This is because any noncitizen who earns an income in the US must have proper work authorization from the United States government. Working while physically present in the US, even for a foreign employer and even if any earnings are paid into a foreign bank account, will still be classed as work.

Additionally, any income from personal services performed for a foreign employer by someone physically present in the United States will be deemed as “US source income” for tax purposes, unless that income meets all three of the following conditions:

• the services are performed under contract with either a nonresident foreign individual, partnership or corporation not engaged in a trade or business in the US
• the total annual earnings for such services is less than $3,000
• the person performing the services is temporarily present in the United States for not more than 90 days during the tax year.

For the remote worker unable to meet all three of these conditions, their income from services performed in the United States will be taxed accordingly under US tax laws. Further, if that person’s pay for their services is in excess of $3,000, the entire amount will be treated as income from a trade or business within the US for tax purposes.

 

Can you work remotely from US locations with a visa?

Unfortunately, even though there are a number of temporary work visas available for those looking to work in the United States for a US-based employer, known as nonimmigrant visas, there is currently no remote worker visa category on offer to overseas nationals.

Even though a number of countries across the world have realised the economic benefits of welcoming remote workers, commonly referred to as digital nomads, and adjusted their immigration policies accordingly, the US does not issue work visas to cover remote working. In general, nonimmigrant work visas are based on a specific offer of employment that is based in the US. In most cases, a petition must also be filed and approved by US Citizenship and Immigration Services (USCIS) before applying to a US Embassy or Consulate for a visa.

 

Can you work remotely in the US under a visitor visa?

The B-1 and B-2 visitor visas are nonimmigrant visas that allow the visa holder to travel to the US for business-related reasons (the B-1 business visitor visa) or for tourism-related reasons (the B-2 tourist visa). Although a visitor visa will enable an overseas national to lawfully enter the US, this is only for a purpose permitted under the visitor rules.

In the context of the B-1 visa, this includes things like attending meetings or conferences, but it does not include undertaking paid employment, even where that employment is based in the UK. Equally, in the context of the B-2 visa, this includes going on holiday, enjoying some sightseeing, or visiting friends and family. However, a visitor cannot do any paid work during their US stay, even if they also plan to undertake any one of the permitted activities, such as visiting a relative and using their address to work remotely from. This is because the B-1 or B-2 visitor visas do not grant US work authorization. The visitor visa categories also do not permit a foreign national to earn any US source income.

 

Can you work remotely in the US as a visa-free visitor?

The same prohibition against undertaking paid work applies equally to overseas visitors who are able to travel to the United States visa-free. Under the Visa Waiver Program (VWP) most British nationals will be able to obtain pre-approved authorization to travel to the US without the need for a visa using the Electronic System for Travel Authorization (ESTA). The ESTA system is an automated screening process used to determine the eligibility of certain overseas citizens, including British nationals, to visit the US via the VWP.

However, anyone with an ESTA authorization must still request permission to enter the United States at a US port of entry. This means that US Customs and Border Protection officials must be satisfied that the visitor is seeking to enter the US solely for the purposes of either business or pleasure for a period of no more than 90 days. As such, if a UK digital nomad arrives at a US airport with the intention of working remotely, even if they only plan to do so for a period of less than 3 months, they will probably be refused entry.

 

Consequences of violating visitor visa conditions

The potential consequences of violating a visitor visa, or undertaking a remote-working role from a US location having entered the US under the VWP, can be extremely serious. This could include revocation of an individual’s visa status or ESTA authorization, where the overseas national could be deported from the United States. Any violation of US immigration law could also result in the refusal of an application made by that individual for a visa at a later date from outside the US, together with a possible ban on re-entry.

Importantly, earning any US source income under a visitor visa or an ESTA authorization would be considered freelance self-employment, since there is no US employer, which is specifically prohibited under the visitor rules. As such this would be considered a violation.

 

What do you need to do if you want to work from the US?

For anyone contemplating the possibility of working in the US, they will first need to obtain a nonimmigrant work visa, many of which will require the offer of a job that is based in the United States, together with sponsorship from a US-based employer. The most common way to get a sponsor is to secure a job offer with an existing US company, although it is also possible to obtain a sponsor by requesting a transfer by a foreign employer to an affiliated US office. It is also possible for an overseas national to run or even start their own business in the US.

Below we set out some examples of the different types of work visa available to UK professionals, although each one has very different requirements that must be met:

 

H-1B visa for specialty occupation workers

The H1-B visa is a nonimmigrant visa allowing foreign skilled workers to undertake a job role within a specialty occupation in the US. To be eligible for H-1B classification, an applicant must have the offer of a qualifying job from a US-based employer and be suitably qualified or experienced for that role. Generally speaking, this means that the applicant must hold a bachelor’s or higher degree within the specific specialty or its equivalent.

However, any graduate-level job across a whole range of industry sectors that normally requires a bachelor’s or higher degree as a minimum entry requirement can potentially qualify as a specialty occupation, from accounting roles to positions available in arts.

For the successful applicant, a HI-B visa will mean they can initially work in the US for a period of up to 3 years. They can also apply for an extension of stay, provided they continue to meet the eligibility requirements, in most cases up to a maximum of 6 years. Importantly, the H-1B visa is a dual intent visa. This means that a nonimmigrant looking to permanently settle in the United States can take steps to apply for lawful permanent residence, without undermining their nonimmigrant status under an H-1B visa.

L-1A or L-1B visas for intracompany transferees

The L-1 visa is a nonimmigrant visa for employees of multinational companies looking to work in an affiliated office in the US. This could be within either an executive or managerial role (the L-1A visa), or for intracompany transferee whose position requires specialised knowledge of their employer’s organisation (the L-1B visa).

To be eligible for L-1 classification, the senior or specialised knowledge employee must be destined to work in a similar role in the US office. They must also have worked for their overseas employer for a continuous year within the 3 years immediately preceding their admission to the United States. The successful L-1 visa-holder will be allowed an initial stay of up to 3 years, although extensions of stay may be granted up to the maximum limit of 7 years (for the L-1A visa) and 5 years (for the L-1B visa). Additionally, as with the H-1B visa, the L-1A visa is dual intent, providing a potential pathway to permanent settlement.

Importantly, this classification of visa will also enable a senior or specialised knowledge employee of a qualifying foreign enterprise, that does not yet have an affiliated office in the United States, to travel to the US to set one up. Employees entering the US to establish a new office will be allowed a maximum initial stay of one year.

 

E-2 visa for treaty investors and their employees

The E-2 visa is a nonimmigrant visa for citizens of countries with which the US maintains a treaty of commerce and navigation or certain other qualifying international agreements.

Under an E-2 visa, the applicant must be coming to the United States to solely develop and direct the operations of an existing or newly-established US enterprise in which they have invested, or are actively in the process of investing, a substantial amount of capital.

E2 classification is also available to employees looking to work in the treaty investor’s US business in either an executive or supervisory role, or as an employee with skills which are essential to the operation of the business, known as an essentially skilled employee.

However, in addition to meeting a nationality requirement, where the applicant must possess the nationality of a qualifying treaty country, the treaty investor must also meet a substantial investment requirement. For E-2 classification, there are no fixed capital thresholds, although the investment made by the principal applicant must be sufficient to ensure the successful operation and development of the business, measured proportionally. The amount of capital required for investment can therefore vary, depending on the type of business, although this may mean a minimum investment of at least $100,000.

Where an applicant is granted an E-2 visa, this will allow them to work in the US for up to 2 years. These visas can be renewed an unlimited number of times, in 2-year increments, for as long as the business remains active and the visa-holder remains actively involved.

 

What does your spouse need to do to work from the US?

Under either H-1B, L-1 or E-2 classification, the spouse and dependent children under 21 of the primary applicant or principal visa-holder may also seek admission to the US. Described as derivative visas, these types of visa will enable immediate family to accompany or follow to join their partner or parent who will be, or is already, working in the United States.

Additionally, the spouse of an L-1 worker in valid L-1 nonimmigrant status, or the spouse of an E-2 treaty investor or employee in valid E-2 nonimmigrant status, will be considered employment-authorized incident to status. Importantly, however, the spouse of an H-1B worker will only be able to lawfully undertake work if they have successfully applied for employment authorization from USCIS. The spouse will also only be able to submit an application to USCIS if their H-1B husband or wife has already started the process of seeking employment-based lawful permanent resident status.

 

Need assistance?

NNU Immigration are a team of London-based US attorneys, specializing solely in US immigration law and visa petitions. We provide eligibility and process advice on US visa petitions across all categories. For advice on remote working arrangements for your foreign workers, or on your eligibility to work from the USA, speak to our experts.

 

Working remotely from the USA FAQs

Can I work remotely in the US from another country?

As the United States does not currently offer a dedicated digital nomad visa category, and undertaking paid employment is prohibited as a visitor under US immigration laws, it is not possible to work remotely in the US from another country.

 

Can a UK citizen work for a US company remotely?

UK citizens do not need a visa to be able to work remotely for a US company in the UK. However, overseas nationals looking to undertake work in the UK will need a suitable visa to do so.

 

Can I work remotely for a US company and live abroad?

It may be possible to work remotely for a US company and live abroad, where a number of countries now allow visitors to work remotely for a foreign country and receive a foreign income for an extended period of time.

 

Is it illegal to work remotely in another country?

The question of whether or not it is illegal to work remotely in another country will depend on the country in question and their specific immigration laws. For example, the USA does not offer a dedicated digital nomad visa.

This article does not constitute direct legal advice and is for informational purposes only.