Reply to: Working in USA

[buddy99]

He isn't confirming anything.

It's up to you to check that the US taxman sees you and your limited company as completely separate entities due to the number if employees to you have.

I have been told by someone in the US they don't.

Taxman? This isn't a tax question. Do you mean immigration authorities?

[SueEllen]

Thanks, that is really helpful. I had read that I could not get paid directly by a US company for any business time spent in US, even for meetings, and had hoped the fact that they actually pay my Ltd. company who then pay me would make it OK(despite the fact that I am the director and sole employee of my Ltd. company).

So you are confirming that this arrangement is within the rules, as I personally am not being paid directly by a US source, my company is?

He isn't confirming anything.

It's up to you to check that the US taxman sees you and your limited company as completely separate entities due to the number if employees to you have.

I have been told by someone in the US they don't.

[buddy99]

I mention this because it isn't acceptable to receive income from a US source when conducting business in the US under the VWP (except under specific conditions not being met here). It is, however, acceptable for the worker's company to invoice for T&M or anything else.

Thanks, that is really helpful. I had read that I could not get paid directly by a US company for any business time spent in US, even for meetings, and had hoped the fact that they actually pay my Ltd. company who then pay me would make it OK(despite the fact that I am the director and sole employee of my Ltd. company).

So you are confirming that this arrangement is within the rules, as I personally am not being paid directly by a US source, my company is?

[jamesbrown]

What Jamesbrown said is a bit pedantic, but accurate and that matters, there could be arguments if you use T&M type timesheets though as that "looks" like you were there to work. More of the farce element really.

I mention this because it isn't acceptable to receive income from a US source when conducting business in the US under the VWP (except under specific conditions not being met here). It is, however, acceptable for the worker's company to invoice for T&M or anything else.

[TykeMerc]

Going for genuine meetings, note taking, planning, discussions and the likes is ok (put aside that's a reasonable description of what I and many others actually do as work), in truth it's a bit of a farce and mostly a matter of what you say and how you say it.
What Jamesbrown said is a bit pedantic, but accurate and that matters, there could be arguments if you use T&M type timesheets though as that "looks" like you were there to work. More of the farce element really.

[jamesbrown]

Forget the work thing then for a second. I do actually want to go for a few days to meet with my colleagues. The Green Card might take another year so some face time would be really useful. Is this permitted and can I invoice for it? I am genuinely happy to do nothing but meetings for the period I am there but I would like to get paid for the time.

There's no problem in doing this, and yes YourCo (it isn't you) can invoice for the time.

[buddy99]

That's more a matter for US Immigration. If they catch you at it then there's every chance they will deport you as the US takes a strict view of its visa conditions. If you're caught then bye-bye Green Card.
Do you really want to take the risk? With what you describe you're struggling to word it and clearly stretching the meaning of words, how do you think that would come across to an Immigration Officer who's not only heard it all, but is an experienced interrogator?

Forget the work thing then for a second. I do actually want to go for a few days to meet with my colleagues. The Green Card might take another year so some face time would be really useful. Is this permitted and can I invoice for it? I am genuinely happy to do nothing but meetings for the period I am there but I would like to get paid for the time.

[TykeMerc]

That's more a matter for US Immigration. If they catch you at it then there's every chance they will deport you as the US takes a strict view of its visa conditions. If you're caught then bye-bye Green Card.
Do you really want to take the risk? With what you describe you're struggling to word it and clearly stretching the meaning of words, how do you think that would come across to an Immigration Officer who's not only heard it all, but is an experienced interrogator?

[buddy99]

I think the issue at hand is your eligibility to complete this work under the VWP and how far you're willing to stretch it, not taxation (you will not be resident for tax purposes in the US based on what you've said above). My situation probably won't help you assess the risk. I only very occasionally visit my U.S. client, perhaps once every three months at most, and only then for a short period (less than one week), typically to present and discuss a deliverable that I recently completed, so I have a clear agenda for the week with daily meetings. I have no doubt that many others push the envelope on the VWP. However, if I were in your situation, I'd endeavor to focus your work around meetings. There's nothing wrong with visiting frequently, per se, it's just a red flag if you do, so you will have to explain why and what you're doing in more detail. If you have an agenda for your time in the U.S. that focuses around meetings, I don't think you'll have any issues. If, OTOH, you have no agenda and are sitting at a desk provided to you, working independently for a good period of time, with only occasional meetings (i.e. doing routine work), that would be a problem without a visa. In terms of the latter, there used to be a "B-1 in lieu of an H-1B visa" (try a search), but I don't know if that's still available (there was ongoing talk about removing it) and it was for employees of foreign companies that otherwise met H-1B requirements but were working on a short project and remained employees of the foreign corporation rather than a U.S. employer (unlike the H-1B). I don't know what the situation might be for a director of a foreign company with the B-1 in lieu of an H-1B visa. I know it wasn't intended for contractors.

Sorry to drag up an old thread but I wanted to ask a question on this topic. I am a contractor under my own Ltd. company contracting to a US based company and paid in dollars for invoiced work. (They are also sponsoring me for a green card after which I will become a perm employee) I would like to go to the US periodically to visit them for meetings. My understanding that meetings are OK under the VWP but work is not?

Can I still legally invoice for time spent at meetings in the US?

If I spent a week in the US, and spent 20 hours in meetings and 20 hours working, I am assuming that I have broken the law by working. Equally if I spent two days working with a colleague as an ongoing "work meeting", where we might both just be working side by side but conferring, this might be OK as it is still a meeting of sorts?

[jamesbrown]

If term 'business' was clearly defined then this would go away. I guess they can twist the meaning anyway they want it as well. Not very helpful using the word business. My company though small is doing business with an american/global firm with offices in the US. My contract will be in the UK.

The difference possibly from OP is due to how I should be structuring the whole deal to make it simpler tax and visa wise. I do have some flexibility now before things are sealed.

May I ask how often do you go and for how long do you stay each time. Also how long have you been doing this please.

This will help me assess my risks in this situation.

I think the issue at hand is your eligibility to complete this work under the VWP and how far you're willing to stretch it, not taxation (you will not be resident for tax purposes in the US based on what you've said above). My situation probably won't help you assess the risk. I only very occasionally visit my U.S. client, perhaps once every three months at most, and only then for a short period (less than one week), typically to present and discuss a deliverable that I recently completed, so I have a clear agenda for the week with daily meetings. I have no doubt that many others push the envelope on the VWP. However, if I were in your situation, I'd endeavor to focus your work around meetings. There's nothing wrong with visiting frequently, per se, it's just a red flag if you do, so you will have to explain why and what you're doing in more detail. If you have an agenda for your time in the U.S. that focuses around meetings, I don't think you'll have any issues. If, OTOH, you have no agenda and are sitting at a desk provided to you, working independently for a good period of time, with only occasional meetings (i.e. doing routine work), that would be a problem without a visa. In terms of the latter, there used to be a "B-1 in lieu of an H-1B visa" (try a search), but I don't know if that's still available (there was ongoing talk about removing it) and it was for employees of foreign companies that otherwise met H-1B requirements but were working on a short project and remained employees of the foreign corporation rather than a U.S. employer (unlike the H-1B). I don't know what the situation might be for a director of a foreign company with the B-1 in lieu of an H-1B visa. I know it wasn't intended for contractors.

[koradma]

The term 'business' has no meaning in this context because your eligibility to do 'business' under the VWP is dependent on the type of 'business'.

I currently have a US client and visit the US for occasional meetings.

If term 'business' was clearly defined then this would go away. I guess they can twist the meaning anyway they want it as well. Not very helpful using the word business. My company though small is doing business with an american/global firm with offices in the US. My contract will be in the UK.

The difference possibly from OP is due to how I should be structuring the whole deal to make it simpler tax and visa wise. I do have some flexibility now before things are sealed.

May I ask how often do you go and for how long do you stay each time. Also how long have you been doing this please.

This will help me assess my risks in this situation.

[stek]

Working in USA

An employment situation is rather different, and you can get an alphabet soup of employment-based visas. The problem is that, ultimately, those lawyers have no control over whether an official at the US border wants to allow you in under the VWP (or a visa for that matter). If you're regularly visiting under the VWP, that will flag you up, and if you then say something silly at the border about the type of work you're doing, they may decide to put you on a flight back home, at which point you'll be flagged as having been denied entry under the VWP. I'm not an expensive immigration lawyer though, so YMMV If it were me, I wouldn't be pushing the envelope on this one....but then I like visiting the US and I have contract opportunities there that make me risk averse.

You don't get 'free NHS' on any LTE visa, A&E yes, not the full monty.

[IR35FanClub]

The real answer of course it to contact the US Embassy, tell them what you intend to do- and get it in writing what VISA you need. Make sure you have this with you when you travel as you will be asked for the purposes of your visit.

As a side issue the immigration folks take their jobs seriously - in the old days before VWP they used to ask you the questions that are now on the card you fill on the plane. My ex-father in law was asked "are you here to try and overthrown the united states government" to which he replied "sounds like a good idea" and ended up in jail for the night! Had to get the guy he was supposed to be meeting to come and bail him out!

If you take the understanding immigration are trying to keep US jobs for US citizens, that will guide you in what answers to questions you give. I.e. you could be there to do work which is impractical for you to do in the UK as you need to be on the client site. I.e. it's UK work that you are bringing to the US to make it easier for all.

[jamesbrown]

I worked in the US for a big multi national with expensive immigration lawyers looking after us, and things clarified to a very senior level with their immigration folk. I was permie at the time on a UK payroll.

Essentially we (lots of Brits in a similar situation) could do "business" on a normal visa waiver stamp you can get. For up to 3 months at a time. Often folk would go to Canada or Mexico for the weekend when their 3 months was nearly up rather than coming back to UK, and on going back into the US after such a weekend your 3 months would start afresh again. To be fair a large number of US citizens were doing the same here (although they get a much better deal, free NHS etc).

What is "business" and what is "work" is what the expensive immigration lawyers were paid to make sure about. We were really working, but it appears that if you are on a UK payroll rather than a US one there is a lot of flexibility about where the grey line between business and work is drawn - particularly if you work for a big multinational with contacts high up the political chains of command.

I would be a lot more nervous about doing it this way as an individual contractor without those expensive lawyers available to sort things out if an immigration officer gets stroppy one day.

An employment situation is rather different, and you can get an alphabet soup of employment-based visas. The problem is that, ultimately, those lawyers have no control over whether an official at the US border wants to allow you in under the VWP (or a visa for that matter). If you're regularly visiting under the VWP, that will flag you up, and if you then say something silly at the border about the type of work you're doing, they may decide to put you on a flight back home, at which point you'll be flagged as having been denied entry under the VWP. I'm not an expensive immigration lawyer though, so YMMV If it were me, I wouldn't be pushing the envelope on this one....but then I like visiting the US and I have contract opportunities there that make me risk averse.

[CoolCat]

I worked in the US for a big multi national with expensive immigration lawyers looking after us, and things clarified to a very senior level with their immigration folk. I was permie at the time on a UK payroll.

Essentially we (lots of Brits in a similar situation) could do "business" on a normal visa waiver stamp you can get. For up to 3 months at a time. Often folk would go to Canada or Mexico for the weekend when their 3 months was nearly up rather than coming back to UK, and on going back into the US after such a weekend your 3 months would start afresh again. To be fair a large number of US citizens were doing the same here (although they get a much better deal, free NHS etc).

What is "business" and what is "work" is what the expensive immigration lawyers were paid to make sure about. We were really working, but it appears that if you are on a UK payroll rather than a US one there is a lot of flexibility about where the grey line between business and work is drawn - particularly if you work for a big multinational with contacts high up the political chains of command.

I would be a lot more nervous about doing it this way as an individual contractor without those expensive lawyers available to sort things out if an immigration officer gets stroppy one day.