skyland235

Interesting topic as on general research many debates on this and conflicting views on ...I did find the following though and not sure how uptodate it is....

"Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:
1.total annual earnings from such services is less than $3,000;
2. the nonresident alien is physically present in the United States for not more than 90 days in the year;
3.the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation."

Guindalf

...or where it's quoted from, apparently!

OP, no personal attack (as there hasn't been one that I can see yet!), just plain observation of the truth. You are performing work, ergo breaking the law. There is no way to spin it and I think you know it. You've got yourself into a bad situation and you're trying to back out and, well, there's no reverse!

Will you get caught? Probably not, but don't try to pee on out legs and tell us it's raining! There is an excellent chance you could slip up and say the wrong thing to the wrong person and, the result for such a blatant flouting of the law is almost certainly a ban, and that could well be a lifetime ban! Most of us have been around and involved in the immigration process a lot longer than you've owned your laptop!

As Ian said in a roundabout way, you can't fix stupid, but you CAN stop it from entering the country!

ian-mstm

Whether it's up-to-date or not is irrelevant to this thread. The issue is working while on the VWP... not whether the income is considered to be from a US source.

Ian

Rete

FWIW, you are not here under an ESTA but the VWP. The ESTA is the questionnaire you complete electronically that allows or rejects you from using the VWP to enter the US.

CanadianSpruce

The US really needs to update its rules on telecommuting like Canada did because at the moment 20% of visitors to the US are probably breaching the rules by sending their boss an amended keynote etc.

Admittedly CBP officers seem to have the attitude that as long as it's for a foreign company for work that has nothing to do with the US, most don't care.

Although knowing the US government one day it'll probably tell people that they need a US work visa even if there not present in the US and doing the work abroad! 😛

ian-mstm

Why? US immigration doesn't care whether or not its rules and regulations are inconvenient. The onus is always on the traveler to know and abide by those rules.

Ian

CanadianSpruce

I'm not saying the onus isn't on the traveller.

Its just the rules are totally archaic and even if they don't want to allow it, they could amend the wording of the laws to actually fit in with 21st century life. It would nice to have some clarification instead of 'its up to the border officer'. At the moment a border officer could decide your working because you simple read a work email or called your boss to discuss an upcoming meeting back home. But the the whole US immigration system seems a bit archaic, so not a huge surprise.

Rete

It is virtually the same with Canadian and British immigration.

christmasoompa

No idea about the UK, but it's actually very different for Canada Rete. Canada allows people to work remotely without needing a work permit if the work is internet based and doesn't compete with the Canadian market. It's perfectly fine, for example, for a Brit to apply for spousal sponsorship, and to move to Canada and keep working for their UK Company whilst waiting the 8 months or so for PR. Unlike the US, where that would be an absolute no no!

CIC state the following isn't work (amongst other things) and therefore no work permit is required -

"long distance (by telephone or internet) work done by a temporary resident whose employer is outside Canada and who is remunerated from outside Canada;"

HTH.

Former Lancastrian

Thats because Canadians are smart and use common sense. The clue is in the

employer OUTSIDE of Canada and enumerated from OUTSIDE Canada or loosely translated not WORKING for a US company or being PAID by a US company.
Its not that difficult

ian-mstm

I agree with you on this!


The US has always been an insular nation. US immigration rules and regulations are written specifically to keep non-US citizens out of the US. From US immigration's POV, anything that helps them do that is good... including the vagueness of the law.


True... but the US seems to like it that way!

Ian

Rete

Misunderstanding here. I meant about the border agent having complete discretion on allowing a visitor into their country. Agents at the border in both Canada and in the UK can turn you around without allowing you to enter.

Hubby is a Canadian by birth had a 36 year career in the RCAF and he gets questioned intensely by the Canadian border agent when he visits Canada. Guess they hate the fact that he is living in the US. Canada might be enlightened in some ways but they are a spiteful group in the government offices of Ottawa and Quebec to citizens who are not French-Canadian.

Guindalf

I must make something clear that's been bugging me from the OP's original thread title...

No-one extended your 'right to remain'. You do NOT have any rights, period. If an official decided that you were undesirable for ANY REASON and at any time while you're in the country, you can be removed without even being able to appeal. As a visitor, you are here at the discretion of the US Government, so, even though I think this is semantics. do not be under any illusion of 'rights'!

okay

Correct, semantics. Phrasing does matter. The border guard extended the VWP 90-day period stamped in my passport by an extra two months. In response to me telling him that I will be in the US working on a book.

okay

Now, back to the purpose of this forum, which is to help a community. I'll hereby recount my experiences for the record.

1. The U.S. Department of State clearly states that the VWP is for visitors conducting business as well as visits for tourism: https://travel.state.gov/content/vis...r-program.html This forum’s evidence-light, self-appointed gurus of American immigration who claim undertaking any work while on the VWP is illegal are going to have to invent a theory about how one can do business under the VWP without doing some work under the VWP. Nobody can undertake business without undertaking work. All business activity in the US requires undertaking work while in the US. That is very different from working in the US. Phrasing matters.

2. The advice I’ve taken is from US embassy staff, border officials and in response to this discussion my American lawyer friend. I’ve been advised by US officials that legally one can travel to the US under the VWP and conduct your normal work that you do outside the US. Phrasing matters: You cannot work in the US - and yet you can undertake work while in the US.

3. I’ve entered the US three times in the last 18 months on the VWP for relatively long stays. Each time I told the truth, that I am going to be working on a book as well as doing a little sightseeing and spending time with friends and family. Each time, officials have welcomed me in. On the last occasion, per the start of the thread, my stay was even extended without me asking for it. The people calling me stupid and criminal here are by extension calling the US border guards stupid and criminal.

4. I’ve been travelling to the US for 16 years and have never had an immigration problem. On one occasion a rookie border guard didn’t understand how I was entering without any cash: her supervisor told her that she had to rephrase the question to ask how much cash I had at my disposal (I produced a bank statement and was waived through). Phrasing matters.

5. Said officials have advised me the obvious, that if you’re a school teacher from Bolton on the VWP you can mark your infant class books over the holidays without being deported as an illegal worker. They’ve also advised me the less obvious, which is that you can “consult”. So if you’re the marketing lady from a microbrewery in Kent and want to test the US market for potential exports, you can under the VWP go and conduct market research work by getting a focus group in Los Angeles to sample your beer and hopefully import it. While in the US under the VWP you can email your boss, sell shares by telephone and put the finishing touches to a UK website about kittens. You’re not criminal and you’re not stupid. Don’t take my word for it, check with officials, and remember that phrasing matters: You cannot work in the US - and yet you can undertake work while in the US.

6. Meanwhile there is work in kind: the home security and dog walking that hundreds of British and other visitors each year provide in return for free rent is work paid in kind, and is overtly promoted by websites such as trustedhousesitters.com and has never been ruled illegal. If it really was true that any and all work in the US is illegal, why hasn’t this been stopped? And where do you draw the line? By this ridiculous definition, even taking a photo for someone at a viewpoint would be illegal work.

7. So what is illegal under the VWP and when do malicious people get called out? The officials I spoke to stated that the general guideline for them is that if you’re taking a US job, then it’s illegal. Obviously, getting paid in the US for bar work, harvesting the fields or designing a US website for a US client who pays you in the US is illegal. Arriving for a weekend to work as a DJ and getting paid for it whether in cash or wire transfer to the UK is illegal. I’ve known of people getting deported for these reasons. It’s because they’re taking US jobs.

8. A US border official told that if you’re a UK resident and only take income from UK clients you are usually fine to continue your normal work on the VWP, but there are complex cases involving malice, and it’s where official judgement is required. He told me an anecdote about a British team of construction workers who were brought in to the US on the VWP for three months, did their work and then were paid in the UK. Clearly they had abused the system and were rightly prosecuted. The rationale for the prosecution was that they had stolen US jobs. This was also true of the DJ, the bar maids, the maize-pickers and the web designer. It was not true of the primary school teacher and the market researcher or the online British kitten expert.

9. This is why there is legal ambiguity with immigration lawyers taking various positions – as ever, determined by who the lawyers are being paid by. The US state rightfully gives itself the flexibility to prosecute people exploiting the system. The example of the builders is a case in point. When people are obviously concealing their malice, it is useful to be able to book them on a technicality such as the $3000 rule, explained here not in the context of the VWP:

Immigration Lawyers Arguing: "Can I Work from Home for a Foreign Employer?" | Nation Of Immigrators

10. To reiterate, don’t take my word for it. Nobody is a guru here and you must check for yourself with the authorities. Be sure the person who is advising you is properly acquainted with this complicated subject, and carefully phrase the question with whoever you ask. Remember, phrasing matters: on the VWP you cannot work in the US - and yet you can undertake work while in the US.