B-1/B-2 or ESTA visit to the United States: Not right to work in the United States. Civil and Criminal Consequences to US employers/sponsors.
B-1/B-2 or entry under ESTA to the United States only authorize temporary visit to the United States for very limited purposes. A U.S. employer trying to hire or contract a foreign worker without the proper U.S. work visa can be subject to civil and criminal penalties if the U.S. government decides to investigate the company, and this situation can happen in different unexpected ways, i.e. foreigner is placed in secondary inspection and questioned by U.S. immigration officers in a trip.
Employer civil penalties can be as high as paying millions of U.S. dollars, take for example the Indian based technology company, Infosys Technologies Limited, Inc. that was subject to civil fraud investigation by the U.S. government for using the B-1 visa classification, a tourist visa, to bring foreigners to work in the U.S. and ended up settling fraud allegations with a payment of $34 million.
Employment is defined by US Homeland Security as “any service or labor performed by an employee for an employer within th
e United States… but not including casual domestic employment or duties performed by non-immigrant crewmen (D-1 or D-2).”
In general, US paid or non-paid work, working from home or from a hotel without the proper U.S. work visa or authorization could subject the U.S. company to civil and criminal liability. The general rule is to determine whether the work is a true volunteer job or is in reality displacing U.S. workers from potential jobs and thus, cutting Americans’ wages under a volunteer camouflage.
If a foreign worker needs to work in the United States, the U.S. employer should apply, well in advance, for a work visa, in many circumstances at least 6 months in advance to the assignment. There are several types of U.S. work visas depending on the employment/employee circumstances; for instance, the H-1B visa classification that is designed for foreigners who hold a university degree and is issued by the USCIS with a cap of a maximum number of 65,000 per year. These 65,000 are only for principal applicants; however, families can apply can apply as dependents for H-4 status. Dependents are legal spouses and children under 21 years of age.
It is thus advisable that H-1B foreign applicants and employers start preparing now for next year’s H-1B filing. When in doubt, it is advisable to consult with an immigration experienced legal counsel to ensure U.S. legal compliance and to avoid potential civil/criminal liability.