Non-Citizen as Contract Employee

Still Need Coffee

We have a current employee (working here on a visa towards her citizenship) who has to go back to India due to personal issues. She is a key member of the team, and management wants to allow her to work remotely, as an independent contractor, from India until we can fill her position.

Is this even legal? I looked around on the USCIS website (which is terribly constructed and completely unhelpful), but couldn't find any guidance.

I am definitely out of my league on this one - any help out there?

:help:

Sharon McKnight SPHR

I wish I could help but I think your best best with this one is to contact legal counsel that specializes in immigration and off shore employee issues.

If anyone has experience with this, please chime in.

Sharon

ACU Frank

I've not done it, and I have no actual knowledge about it, but...

I would think this would be even easier than having her as an employee. Think of the gazillion people there employed as call center reps for American companies - they're all non-citizens.

NaeNae55

I think in most call center cases the local company hires a company in another country who then hires their own employees. Our contract is with the company for services, not with the employees.

Still Need Coffee

I really have no clue how it would work. If she's set up as an independent contractor, she still has to operate under a tax ID# of some sort. There has to be an easy solution to this I'm just not seeing....

NaeNae55

You're kidding right? I mean, you mentioned [I]tax ID#[/I] which is a government idea and [I]easy solution [/I]in the same paragraph.

Still Need Coffee

Actually, I'm on pain meds for a broken foot at the moment, so everything is a bit fuzzy.

If she doesn't have a SSN for purposes of work in the US (because she's left the US), could she still establish a valid tax ID?

kdigangi

First, I question whether she qualifies as an independent contractor since it doesn't sound like she is a separate established business from yours--which is pretty much what is required now.

Second, if her work authorization for the US remains valid and she intends to return to US, I don't see a problem with her working remotely as an employee. Not much different than working while on vacation. But if her work authorization is voided when she returns to India, then I don't see how she could work in any capacity here in the US. It may depend on exactly what kind of visa and where she is in the process.

I agree only an immigration attorney is going to be able to answer for sure.