It is more and more common for people to want to structure their careers free from the ties of a standard employer/employee relationship. What used to be the standard nine-to-five job with the same employer is becoming less and less suited to the new ways that people work. For many people who work in the arts especially, working on projects for multiple employers is the best way to structure their work. However, doing myriad projects for multiple clients or employers can be challenging under the current immigration system and visa structures. While the US has a clear interest in protecting US workers and ensuring foreign nationals do not come to the US without actual work lined up, the immigration system fails to properly allow for the increasing trend of people working under a freelance model.
First we should define what we mean by freelance and what restrictions exist from an immigration perspective. From the foreign national’s perspective, if they wish to freelance they typically mean they wish to be self-employed and hired to work for different companies. This can be challenging under the current immigration rules. From an employer’s perspective, when they say they want to hire someone as a freelancer, it means they have a short-term or non full-time project or don’t want to put the individual on their payroll. This is more feasible under the current immigration rules but only for certain visa categories as described below. This post will discuss specific visa categories under which freelancing scenarios might be possible.
O-1
The O-1 visa is by far the most flexible when it comes to working in a capacity that can be defined as “freelance.” If a foreign national wishes to accept work as it comes in from any employer, without any set agenda or regard for the quantity of work, and no strings attached, this is not permissible under the current immigration law—even with the O-1 visa. If the foreign national is willing to have a bit more structure and has specific work contemplated in the US, an O-1 may be possible.
The O-1 visa is for a person of extraordinary ability in their profession. We previously wrote about the misconception of the word “freelance” in the O-1 context. The O-1 visa has been incorrectly referred to as the “freelance” visa but there is no way that a foreign national can come to the US on an O-1 visa and simply wait to find work with no one to whom they are accountable. The O-1 has to have specific projects lined up and must be working with an agent, which would ultimately allow them to accept work from multiple clients, or be working with a single employer, which would be the only employer they could work with for the duration of the O-1.
The O-1 allows for standard employment scenarios where, for example, a fashion designer is offered an in-house role at a leading fashion retailer. In this example, the fashion retailer would be the O-1 sponsor and the foreign national would be permitted to only work with the fashion retailer for the duration of the visa. Under the O-1, the employer could formally employ the foreign national on their payroll or the employer could list the foreign national as a freelancer. The foreign national could only work for this employer under the O-1 even if the employer listed them as a freelancer. If the foreign national is subsequently offered a second project as a designer with another employer and wishes to work for both fashion companies, the second employer would be able to file a second O-1 petition to run concurrently with the first O-1 and in this way the foreign national would have the ability to work for two employers. There is no limit to the number of concurrent O-1 petitions filed on behalf of a foreign national.
The O-1 regulations as mentioned above also allow for less employer-centric situations for certain professions that are traditionally self-employed, including many artists: agents may sponsor O-1 petitions under the immigration regulations. In this context, the sponsoring agent can either be the agent acting on behalf of a foreign employer, an agent acting on behalf of multiple employers, or an agent performing the function of an employer. Agents for foreign nationals essentially represent them for a number of different projects which must be identified on an itinerary before the O-1 petition can be filed on behalf of the foreign national. If similar projects arise that were not premised in the initial filing, they may be subsequently added to the itinerary.
For instance, take the example of an actor who is typically hired on a project basis and who has a number of different employers or production companies or who may be doing several acting or acting-related projects at the same time. If she is contracted to do two commercials, a television pilot, a guest appearance on two shows, and a feature film, an agent may sponsor that O-1 and the itinerary would include all the projects mentioned above as well as deal memos for each one. If after the O-1 is approved her agent finds a third and fourth commercial, the itinerary can be updated with these additional projects without the need of a new O-1 petition. In this way, there can be some flexibility through the agency scenario for the O-1’s to work on several projects for different end clients while in the US.
H-1B/E-3
The H-1B and E-3 are both visa petitions that depend on a US company sponsoring a foreign national to work for the company in a professional position as the company’s employee. Under these visa categories the foreign national must be an employee of the company sponsoring their petition. Employers are not allowed to treat H-1B or E-3 employees as independent contractors and must grant them the same benefits as any US worker—meaning the same vacation, benefits, etc.
In fact, the H-1B regulations are so concerned with the maintenance of an employer/employee relationship, that when an employer wants to send an employee to work at the office of a client, the burden is on the employer to prove that the employer/employee relationship continues to exist between the H-1B sponsor company and the H-1B employee even when the work is done offsite.
The only room for some flexibility for an H-1B visa holder to work for more than one employer is through concurrent H-1B sponsors. Just as described above with O-1s, H-1Bs can also have multiple petitions submitted on their behalf so that they can work concurrently for both approved petitioners. If the foreign national was slated to work more than forty hours per week under the two petitions, USCIS could take issue with these applications. A better scenario would be where a foreign national has two or three part-time H-1B’s (which is allowed) or one full-time H-1B that they consider their “day job” and one part-time H-1B for the second project. In that way, there is a bit of flexibility in the H-1B context, but not much.
E-2
An E-2 visa is for individuals who either invest substantial amounts of capital in a US business and who are coming to the US to run that business, or for essential employees of that business who hold the same nationality as the company’s majority owner or owners.
The E-2 visa holder is only authorized to work for the entity that registered its investment with the US State Department. Depending how the US entity (in which the investment is made) is structured, there may be some flexibility to permit the investor to work with multiple clients. If the E-2 entity is in a business that provides a service to many clients, the E-2 visa holder can do work for those various clients as long as it is part of the management and development of the original investment. For example, if the E-2 company is a US business that advises restaurants on their staffing methodologies and it provides services to fifteen different restaurants, the E-2 visa-holder can do this work for all the clients on behalf of the E-2 company. The clients pay the E-2 company for the work and the E-2 company pays the salary of the E-2 employee. In that way, the E-2 has some freedom to do work for multiple companies, but the guidelines of the E-2 visa are still being fulfilled.
E-2, E-3, or L-2 Dependent Visas
If a foreign national is coming to the US as the spouse of an E or L visa-holder and they obtain the applicable E-2, E-3, or L-2 dependent visa, they are authorized to apply for employment authorization documents (EADs) that will allow them to work while in the US. Once the EADs are granted they can work for any company in any field, part-time or full-time, freelance or in-house, or not work at all. Their EAD offers them greater freedom to work for anyone they chose even while their spouse is tied to the company that sponsored the E or L visa. (In limited circumstances H-4 dependent spouses may also be granted EADs but this benefit may soon end.)
F-1 OPT
After a bachelor’s or higher degree program, graduating students are usually eligible for Optional Practical Training (OPT) and may apply for an Employment Authorization Document (EAD). Their work card allows them to work in a field related to the degree obtained for at least twenty hours per week. A foreign national on F-1 OPT cannot be unemployed for more than ninety days, but the employment does not have to be in-house; “freelance” work is allowed.
Things are not as easy when an F-1 visa-holder wants to work under the STEM extension of OPT. In order to qualify for an extension of the OPT, the foreign national must have obtained a degree in the STEM field and must have an E-Verify registered employer. The foreign national may only change employers if granted by their school and then only to another employer who also is registered in E-Verify. Thus, employment in this context is more limited than under the initial OPT period.
Conclusion
For the most part, the immigration system does not favor self-employment or freelancing, however, there are visa sponsorship scenarios that can make a foreign national feel like they have some of the flexibility they would have as a freelance worker. The O-1 visa and work authorization under an EAD are the most flexible but foreign nationals may be able to take advantage of concurrent sponsorships to create more flexibility in the employment.