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What to Consider When Sending a Foreign Employee Overseas for Work

Nov 1, 2023

H-1B employee

In today’s interconnected world, companies often deploy their employees on overseas assignments. While there are many different factors to consider when sending a U.S. worker abroad, the situation gets more complicated when dealing with foreign national (FN) employees. A company needs to take various steps to ensure FN employees adhere to both U.S. immigration laws and the regulations of their host country.

Assessing the Impact on Visa Status

Before sending an FN employee on a short- or long-term international assignment, it’s a good idea to consult your immigration attorney to evaluate how the overseas work assignment may affect their current visa status, be it positively or negatively.

For example, employees holding H-1B visas are not considered in “H-1B status” while working outside the U.S. This means that the days spent abroad do not count towards the maximum six years allowed in the U.S. under H-1B status. Consequently, a temporary work assignment overseas could extend the duration an employee is permitted to work within the U.S.

Conversely, an employee who has obtained a green card through your company may have specific compliance requirements. Lawful permanent residents (LPR) must spend at least six months of the year within the U.S. to maintain their green card status. Failure to meet this requirement could result in losing the green card. While exceptions exist, it’s a good idea to get guidance from your immigration attorney before proceeding. If an LPR employee needs to travel abroad for an overseas assignment lasting six months or more, you may want to consider applying for a re-entry permit (Form I-131).

Visa Requirements for the Host Country

Although your FN employee is presently employed in the U.S., the visa regulations in the country they are sent to will be contingent on their current citizenship. It’s essential to understand the specific visa requirements for your FN employee’s travel to and employment in the foreign country. You’ll also need to factor in the time frame required for obtaining the necessary visa.

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Payroll Considerations for International Assignments

When sending an FN employee on an overseas assignment, keeping them on the U.S. payroll is typically a good idea. Transferring them to a foreign company’s payroll could result in a loss of their employee status with your U.S. company, potentially jeopardizing their current visa status. In such cases, your company might need to initiate a new petition with USCIS before the FN employee can return to their U.S. position with approved visa documents.

Additionally, the U.S. has tax treaties with several foreign nations, enabling reduced tax rates and exemptions. However, if the host country lacks such a treaty, standard tax obligations apply.

Valid Travel Documents

An often overlooked but crucial aspect is verifying that the FN employee’s travel documents are up-to-date. You want to make sure they can re-enter the U.S. on their existing or previously-held visa. Consult with your immigration attorney to confirm the FN employee has a valid U.S. visa stamp in their passport, a passport that remains valid for re-entry, and evidence of ongoing employment with the U.S. company, typically shown by recent pay stubs and, if necessary, a sponsorship letter.