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When grey is black: defining the line between a business visit and work for international trade related visas

When grey is black: defining the line between a business visit and work for international trade related visas

Good news! The international contract is awarded to your company, the deadlines are tight, but the increase in business will be critically important to the company’s financial success. Whether the sale is for services or goods, a recurrent conundrum is whether an actual visa approving “work” will be required. In the United States of course the issue is further complicated, because U.S. employers must determine the work eligibility and identity of employees within three business days of the date of hire for Form I-9 purposes. In some cases, a U.S. employer may try to categorise a worker to be an independent contractor to avoid visa requirements, but both the Internal Revenue Service and the U.S. Department of Homeland Security (DHS) may deem a contractor to be an employee based on the level of control that the U.S. employer exerts over the performance of duties of the worker in question among other factors. Similarly, in trying to determine the presence of duties meeting the definition of “work”, which would require a foreign contractor or a U.S. employer to obtain a certain type of visa for a worker, the analysis is challenging and critical.

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