There is little argument that modern technology is changing the way that we perform our jobs. For many employees and employers alike, only an internet connection is required in order to complete the full range of job tasks. Combine this fact with the near omnipresence of mobile devices and laptop computers, and it becomes clear why the need for a physical office where all of a company’s employees perform their job is quickly waning. Instead, jobs can now be performed from home, in the car, on the plane, or literally almost any location on the planet.
This mobility and constant capability to connect to our work at all times is undoubtedly an advancement which will only continue to develop. However, a significant problem arises when advances in technology fundamentally change our work methods, for the rules and regulations which are supposed to govern such methods no longer apply. This specific issue creates a large amount of uncertainty in the field of immigration and what qualifies as “employment.”
For example, it is well understood that a visitor in the United States who uses a tourist visa to enter the country is not allowed to work. However, can this visitor open his laptop and check his emails for his European employer while on vacation? Is this considered “work” and thus a violation of the tourist visa? One must look to the law for these answers. According to Code of Federal Regulations, Section 8 CFR 274, “employment” is defined as:
“any service or labor performed by an employee for an employer within the United States…. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent.”
This definition unfortunately does not clarify the question above. That is, if the employer is NOT within the United States, may the employee perform his European job remotely from within the US? Does “domestic service in a private home” include checking emails for a foreign employer? What if the foreign employer compensates the employee for the work done while visiting the US?
According to the definition above, it is certainly arguable that one is not performing “employment” (and thus not in violation of their tourist visa) if he “sporadically” performs his job duties remotely in a “private home” while visiting the US. Additionally, it can be argued that if the employer is foreign and not “within the United States,” then any work for that employer is not technically “employment.” Conversely, it is quite unlikely that that the US law makers intended to allow tourist visitors to remain in the US and fully perform their job remotely and receive compensation for such work.
Unfortunately, definitive answers to these questions remain unclear in the law itself. Therefore, it is critical that legislators address these advances in technology so that our rules and regulations may clearly guide all those who are physically present in the United States. Otherwise, the frequency of unintentional US immigration violations regarding employment will only increase.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
