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Foreign Independent Contractors Need Proper Visas

Connecticut Law Tribune

July 26, 2010

Authors: Brenda A. Eckert

The conundrum of engaging the services of the foreign independent contractor never ceases to frustrate U.S. companies. The usual scenario is: U.S. Company needs a consultant for a project. U.S. Company is introduced to the “perfect” consultant for its needs. However, the individual is foreign and in the U.S. as a visitor. Luckily, the project can be completed through a series of brief trips into the U.S.

Because the consultant isn’t an “employee” and there is no obligation to complete a Form I-9, the question of obtaining U.S. work authorization never arises until about the consultant’s third entry into the U.S. as a visitor within a brief period of time. Then a Customs and Border Protection officer probes the foreign independent contractor about the exact purpose of his visit. The foreign national answers honestly that he is fulfilling a consulting contract with U.S. Company. U.S. Company ends up frantically calling its lawyer to report that its key contractor has been denied entry to the U.S. with instructions to not enter again unless he has a “work visa.” Until the mess is straightened out, U.S. Company’s project is on hold.

There is no magic solution to engaging the services of the foreign independent contractor. The few visa options have stringent and often limiting requirements which either preclude engaging the foreign independent contractor’s services or make the engagement too burdensome. Therefore, the best way for U.S. companies to engage foreign independent contractors is to consider the available visa options before the engagement.

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