In today's global environment, workers and employees are often sent on assignments overseas. There are many steps to take in order to guarantee a United States worker's compliance and safety while working a short-term or long-term assignment in a different country. Things can get even trickier when sending a foreign national (FN) on an international assignment, however.
While regulations and laws vary between different types of visas, let's take a look at the various boxes to check to ensure your FN employee will comply with both U.S. immigration and foreign laws.
Will Working Overseas Affect Current Visa Status?
Before your company confirms any short- or long-term assignments for FNs, reach out to your immigration counsel regarding whether an overseas work assignment will have any effects on the current visa, both positive or negative.
For example, employees on an H-1B visa are not considered in "H-1B status" when they are outside the U.S. This means any days spent outside the U.S. are not counted toward the maximum 6 years they are allowed in the U.S. in H-1B status. As such, a temporary work assignment in a different country could extend the time your employee is allowed to work for your company inside the U.S.
On the other side, you might consider sending an employee on an overseas work assignment who has already successfully obtained a Green Card through your company, or another way. In order to comply with Green Card regulations, Legal Permanent Residents (LPR) must spend at least 6 months of the year inside the U.S. If they don't, they might lose their Green Card. While there are ways to bypass such a scenario, it's best not to finalize anything until you get a green light from your immigration counsel or USCIS, if necessary.
Also of note, if your LPR employee needs to travel abroad for an overseas assignment that lasts for 6 months or more, applying for a re-entry permit on form I-131 might be necessary, and should be discussed with USCIS as early as possible.
Check Visa Requirements for Country Abroad
Even though your FN employee is currently working in the U.S., any visa regulations in the country they will be sent to are based on their current citizenship. Before finalizing any assignments, be aware of exactly what type of visa your FN employee needs to travel to, and most importantly work in, a foreign country, and also how long it will take to obtain the right visa.
Payroll Issues for Employees Overseas
When sending an FN employee on an assignment abroad, it's wise to keep them on U.S. payroll. If they get transferred to the payroll of a company in a different country, they might no longer be considered an employee of your U.S. company and could lose their current visa status. In this case, instead of returning to the U.S. with their previously approved visa documents, your company might have to file an entirely new petition with USCIS before your FN employee can return to his or her job in the U.S.
The U.S. also has tax treaties with various foreign countries, that allow for reduced tax rates and exemptions, but if the country where your employee is working is not a part of such a treaty, you must pay taxes as you regularly would.
Confirm Travel Documents Are Up-To-Date
An incredibly important aspect that is easily overlooked is ensuring the FN's travel documents are current - make sure your FN employee will be able to return to the U.S. on the visa they hold or held when they left the United States. Again, check with your immigration counsel, but in general it is important to ensure the foreign worker has a valid U.S. visa stamp in their passport, that their passport is still valid when they re-enter the U.S., and that they are still employed with the U.S. company, which can usually be shown by recent pay stubs, and a sponsorship letter if necessary.
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Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.