Key Considerations for Companies Navigating Global Remote Work: Part 1 – Immigration

Transcript

INTRO

Employers are increasingly faced with requests from employees to work abroad for a short period of time for a variety of reasons; however, these arrangements can present complex legal issues.  

On this episode of We get work®, we discuss the immigration law implications of global remote work arrangements for U.S. companies.

Today’s hosts are Chris Anderson and Nadine Trinh, principals respectively, in the firm’s Greenville and White Plains offices.  

Chris and Nadine, the question on everyone’s mind today is: What accounts for employees’ requests to work abroad, what could employers think about to minimize risk, and how will that impact my organization?   

CONTENT

Christopher V. Anderson
Principal, Greenville 

Thanks, Alitia. As Alitia said, my name is Chris Anderson. I’m a principal with the International Employment Practice Group here at Jackson Lewis. We work with mainly U.S. employers to send U.S. personnel around the world and deal with foreign employment issues around the world. We work with employers in other countries as well. We work on cross-border global employment problems for our clients. It’s just an amazing job to get to have. Today, I have with me Nadine Trinh, a great colleague. Welcome, Nadine.

Nadine T. Trinh
Principal, White Plains

Thank you, Chris. My name is Nadine, and we handle in our immigration practice both I-9 defense and compliance, as well as sponsorship of foreign talent for our U.S.-based clients.

And I’m happy to be here with you all.

Anderson 

Thanks so much for joining. 

This is part one of a three-part series on global remote work. We’re going to define that for all three parts. We’re going to do a part on immigration, which is why my friend and colleague, Nadine, is with us. We’re going to do a part on tax and benefits. Then, we’re going to do a part on employment. Stay tuned for those. 

This is part one. We’re dealing with immigration first for a special reason, because it’s usually the big gating mechanism 

that needs to be addressed when you think about global remote work. 

Let me define what global remote work is for the purposes of these three sessions. For our purposes, it is a U.S. person who, whether they’re a non-immigrant in the U.S. on an H-1B or an L visa or other visa type, or they’re a U.S. national, 

but they’ve gone to their employer and they’ve said, “I want to go overseas for a short-term period of time with a full intent to return for personal reasons.” And the employer has no vested interest in them being in the other country. They’re not sending them there. They’re not assigning them, but it’s just a personal request. 

You may say that’s a fairly tight definition, Chris, but this has come up weekly in my practice for the past four plus years, really since COVID 

hit. This is a huge issue. The law is catching up with the reality. It’s a fun issue to think about. There’re a lot of legal issues around it, chief of which are immigration, tax and benefits and employment. That’s why we’re here today. And we welcome all the listeners. 

Nadine, let me kick it to you, of course, to start us off with just a thousand-foot view of how you’ve seen these remote work issues from an immigration standpoint in your practice.

Trinh 

Thanks, Chris. I would say over time, and this was mostly prevalent under the pandemic, post-pandemic, a lot of employers started seeing requests for remote work. Then, all of a sudden, we started seeing maybe an uptick of individuals who happened to be in another country. Employers often overlook where the remote employee is working from. 

Now, this is a lot more common. We have hybrid employment arrangements, but also still fully remote roles out there. Do we always know where the employee is based? Not necessarily. 

In the context of an employee working from abroad, the employer may realize that the individual is spending more time abroad, has a personal reason such as a family emergency that requires them to stay longer than anticipated.

Oftentimes, if the employee is on a non-immigrant visa, they do need to obtain a new visa to reenter sometimes in order to reactivate their work authorization inside the U.S. With changes in processing, sometimes state department schedules with the consulates and embassies abroad, they may actually experience longer processing times and delays in returning to the U.S.

And, if they are stuck abroad, they may have the ability to work remotely from their home country, if it is, in fact, their home country. Otherwise, the employer then has to anticipate the possibility that the individual may have to work from a third country. And if it is a third country, does the employer have a base there? Does the individual have the ability to work from that third country?

There are a lot of questions that can come up when somebody is asking to work remotely from another country.

Anderson 

Then, the longer it goes on, the more material the other issues become. Those are the other sessions of this podcast series — dealing with when you trigger more tax risk, when you trigger benefit issues, when employment law becomes more material. From an immigration standpoint, absolutely, it’s material as well, because do you have that authorization, as you said, to be there and be working there? Nadine, that’s a great overview of how it comes up in your practice. Thanks for that. 

Let’s start with the U.S. side. What are the issues from a U.S. immigration standpoint, if any, that can arise when that non-immigrant person in the U.S. leaves the U.S. for a period of time?

Are there any issues with their non-immigrant visa if they’re there with the intent to return? Are there any issues at all?

Trinh 

Great question. Generally, no. If they leave U.S. soil, then it no longer is a U.S. immigration issue. They’re here working pursuant to a work visa. That’s what provides them with a non-immigrant visa status. The only future item to look at is whether they have the ability to return. Does the current petition cover them through a future period?

If they do return, is it in the same capacity or does some sort of amendment need to be made ahead of their return to the U.S., depending on the current validity of their petition?

Anderson

Would that be if their job duties change or something else or where they land back in the U.S. if it’s a different state? 

Trinh 

Exactly. That’s right. Any condition or term of their employment, the job title, the duties, the work site location. This is much more emphasized for the H-1B visa program because there’s this underlying labor condition application that will specify the work site locations. And, if there’s a change outside of that metropolitan statistical area, then an amendment needs to be filed ahead of the individual working from that work site.

Anderson 

Got it. Just for the listeners, if we boil it down to the classic case where there are not those changes, where someone just goes for a few weeks to a few months and comes back, no need for a change in that case typically? 

Trinh 

That’s correct. On the U.S. immigration side, they’re fine because there’s really no trigger. They leave U.S. soil. 

What triggers U.S. immigration and is what status they are admitted in inside the U.S. and does it provide the ability for them to work?

Anderson

Got it. What about with a permanent resident? If they go and say they’re there? You mentioned a minute ago that sometimes you’re there for some purpose, and this happened a lot during COVID where we saw people getting stuck, where the borders would shut down and you couldn’t get back. And that was more with folks that are going to renew a visa. But, say it’s a U.S. permanent resident, and they just go home and for whatever reason, they need to extend their time past, is there any certain point where they have to worry about that U.S. permanent resident status?

Trinh 

Actually, yes. We did see this during COVID, too. You might have a permanent resident who has a document that’s expiring. Sometimes, there is a delay in processing of the new replacement or renewal green card. On top of the fact that if they are a permanent resident, they have to maintain their U.S. permanent residency, right? They’re filing U.S. tax returns. They are showing permanent ties to the United States. 

If they’re leaving, this is different from somebody who is a U.S. citizen, they do need to maintain their ties, their permanent ties in order to keep their green card status. So, oftentimes it’s a question of, are they spending more than 180 days? More than six months will then bring a presumption that they may be abandoning that permanent residency.

So, it’s important for them to travel back frequently and at least once every six months, even if they are working remotely from another country. Otherwise, they risk losing their permanent resident status.

Anderson 

Got it. I’m going go ahead and say right here, and this is absolutely not a hardline rule by any means, but just to put a little bit of parameters even more on this, what we mean by short-term remote work. Most of my clients end up landing between what classic business trip of two weeks or so to a few months with six months typically being the maximum. I’m not saying I recommend that everyone do a six-month maximum, but that’s there for a reason. If you listen to the tax episode 

that’s coming up, there’ll be more on that. But, generally, 183 days, six months, is what you want to not go past from a just general standpoint. There are a lot of other factors to look at, immigration, of course, being chief among those. Thanks for that, Nadine. 

Let’s kind of pivot to 

potential immigration issues outside of the U.S. I deal with this a lot, but I’d to hear from you what you’ve come across and just what immigration issues can come up for that person outside the U.S. and for their U.S. employer potentially from your experience.

Trinh 

In my experience, we’ve been seeing a lot of M&A activity, companies are consolidating. A lot more of our clients have some sort of presence abroad. How that helps in a situation where you have an employee who’s looking to work from another country is, having another entity that’s related to the U.S. employer does open up some options for a future U.S. visa to return, but it also allows for that individual to be onboarded on the foreign payroll, right? There is a company abroad. We keep them within our global employee population. So that helps a lot. Now, if they are working abroad, some of the issues we see is, does that individual have a spouse and family? Does the spouse need to work 

in that other country, particularly if both were U.S.-based? Then, all of a sudden, you have one requesting employment remotely from another country, then you look to the potential nationality, citizenship of that spouse, and what the work permit options are in that other country. We do see a lot of trailing spouse options. If the spouse needs to work while  

our employee is working remotely. Lot of them involve family issues and, to just obtaining the work authorization in that third country or home country.

Anderson 

Right. I’m glad you mentioned that Nadine, because there are situations, and I’ve dealt with a lot of them, where the client does have that partner entity or some affiliate entities there that they could assign the person to. And, even if they’re not proactively saying we need you there, they can have them there if there’s a good reason for that. But what about in the absence of that, what risks have you seen come up? Let’s just discuss those for a minute as well. 

When the person’s going somewhere with the company, the employer in the U.S. doesn’t have any kind of entity or really any business in that country is what I see every day come up over and over again with clients and it raises a lot of worry for them. What are the risks from your experience? What are some of those risks from an immigration perspective then?

Trinh 

One option that we’ve seen is that they will look at hiring them as a contractor in that third country or the employee’s home country. 

For example, recently we had an employer whose employees H-1B visa maxed out at the six-year mark. Employers know that if you have an employee who’s facing a six-year limit and hasn’t started any sort of employment-based green card process, then you’re sort of out of luck with that extension of the employee’s H-1B visa status. In this case, they had started the process, but kind of late and not early enough to enable the employee to extend beyond the normal six-year life cycle. This individual went back to their home country. The employer took the risk of employing them in the same role as a contractor while waiting out the green card process, which eventually came through. There is a way to obtain a green card via what we know as consular processing, as opposed to adjusting status from H-1B to lawful permanent resident inside the U.S. It took a little bit longer. You’re dealing with the consular post abroad. 

But, eventually, the individual obtained their green card and returned to the U.S. and is, in effect, a permanent resident. 

But, it’s risky, I’m sure my colleague will speak to this on the employment side, if you decide to switch somebody from an employee to a contractor for the same role, even if in another country. Also, you just don’t know, there is uncertainty on the immigration side as to when 

the immigrant visa or the permanent visa will actually be issued. That’s also another unpredictable factor in all immigration processing, ultimately, it’s just the timing. We’re coming up against agency processing times. Sometimes, there are shortages at the local consular posts.

So, it’s all just a little bit of understanding how much risk can we take here in terms of employing this person abroad if it’s in some sort of extended time period.

Anderson 

Right. The time period becomes so material for that, for sure. Really, in all these cases, once you know someone’s going to be there for an indefinite amount of time, of course you have to pivot. 

That’s where having a policy that really lays that out, where, once you’re into uncharted territory in terms of risk, that you need to be thinking about the contractor status, like you mentioned, Nadine, or getting an employer of record or EOR involved to engage them. That works if it’s a national of that country, but if it’s a non-national, if it’s someone who’s a U.S. citizen, for example, and they’re going with their spouse somewhere for vacation or their spouse gets deployed somewhere and they want to go with them and you want to engage them as a consultant or through an EOR, an employer of record in that country, you’re going to still have to figure out whether you can get sponsorship or some kind of authorization for them. 

I see the risk on the foreign-country side come up often, because the person who needs to have authorization in that country is there on visitor status, which is typically fine for a business trip. But, if someone’s there for three months, four months, five months, and they’re using just visitor status, whatever the country allows, then we can never say that allows them to work. There’s some risk that our listeners need to be thinking about if they’re going to allow that. 

One great thing is that we’ve seen coming up, and I know we talked before, Nadine, and you 

said you dealt with this as well: digital nomad visas are becoming so much more popular now. And, we’re seeing the law catch up with reality. Countries are saying we need to figure out some way to define this class of people who really, since COVID, when it really has taken off, that are going to countries where they’re not working there on the local economy. They’re not getting payroll there. They’re not doing anything in that country workwise, but they’re working for their U.S. or other foreign employer.

We’re seeing these in lots and lots of countries now. The great news is, and tell me if you agree with this, Nadine, they do set immigration authorization for a period of time, often one year with even the ability to renew. There are some issues that can come up on the employment side and on the tax and payroll side where it’s not super clear all the time how much protection they give. We have ideas, but I think we haven’t seen test cases yet to really test that out. Again, the law is catching up with the reality.

Anderson 

How have you seen digital nomad visas in your practice, if at all?

Trinh 

That’s not as prevalent, I think, as it was right after COVID. I think it came down to employers hitting the brakes a bit because, whether it was an employment issue, immigration tax, or even cybersecurity issue, we saw some hooks with cybersecurity in terms of remote employees not being able to log in from a third country because an employer wouldn’t authorize it.

I think it was probably happening more, but in terms of in practice, employers have been putting together more policies around this, more restrictions and more terms and conditions around allowing somebody to work for an extended period of time abroad. With these employing organizations becoming larger around the world, 

having more offices and stations around the world, as I mentioned earlier, this future state of individuals needing to come back to the U.S. after a period of time abroad, they have thought about what makes this person eligible to come back to the U.S.? If they are, let’s say, contemplating a U.S. L-1 blanket visa program, 

where you can pre-qualify related entities that are situated around the world, where you would employ somebody and then transfer them back to the United States after one year as an employee. This would not work in the scenario we’ve been discussing about somebody who’s going to be employed as a contractor. Contractor status would not make this individual who’s working for us for one year abroad 

eligible for an L-1A, intra-company transferee as a manager or executive, or L-1B, intra-company transferee visa as a specialized knowledge worker. Oftentimes, as the employer is trying to map this out for the employee, it’s really just, can we do this for a period of time, short or long? If it’s long, could we keep them abroad for one year 

at least as an employee so that we can potentially bring them back to the United States where they initially started and where they may want to get their permanent residency, for example?

Anderson 

I’m glad you raised that because, even though we narrowly define this initial fact pattern of someone going for this short-term period and then coming back, employers need to be thinking about just how do we really want to engage people? We can kind of close with some of these thoughts. If you want to allow it, then you need to have a policy for it. You need to really think through ahead of time what those parameters will be about who gets to even think about doing it.

How long would they go? That’s where the tax and benefits and employment come in as well. What kind of status will they have? Are they a national of that country? All those questions need to be part of that. Within the broader question is what you’re talking about, Nadine, that you need to be thinking through how do we ultimately want to engage people around the world? Do we want to have someone in this country? Do we envision that? And, if we do, rather than having them just go remotely, 

because that’s going to raise some other risks potentially if you’re actually trying to do something there, then think about setting up your own entity, at least getting an EOR, an employer of record, to engage them for a bit of time. 

To your point, they can’t come back to the U.S. on visa status in the L visa status without that year abroad. So, within the classic scenario where you’re not thinking about that, if you’re listening and saying, we’re not thinking about outbound operations, 

but you have people that are pressuring and they’re saying, we want to go, we need to do that for family reasons, vacation, whatever it is, you need that for talent reasons, talent acquisition, talent retention, you need to allow it on some level. Or, if you’re pressured to allow it, then having that policy in place, having a remote work agreement in place are all key things to have to set boundaries on it. Then, ultimately, to reach out for advice on 

the immigration side, but also all the other attendant risks as well. 

Nadine, any final thoughts from you?

Trinh 

The only final thought is, if it’s a short-term period of time, it’s really just important to look at the nature of the activity to be conducted abroad. There are parameters around business visits. This is a very common question we get. You can maybe conduct business, but you may not potentially be able to productively work. 

Just a reminder on distinguishing between a business visitor activity as opposed to a productive employment activity, which likely would require a work permit in that country.

Anderson 

Thanks, Nadine. Thanks so much for joining.

Trinh 

Thanks a lot, Chris. Appreciate everyone.

Anderson

Thanks to all our listeners.

OUTRO

Thank you for joining us on We get work®. Please tune into our next program where we will continue to tell you not only what’s legal, but what is effective. We get work® is available to stream and subscribe to on Apple Podcasts and YouTube. For more information on today’s topic, our presenters and other Jackson Lewis resources, visit jacksonlewis.com.