Question: Is there a requirement to check the visa of an International worker who is an independent contractor living in the United States but not a US citizen?

Answer: Generally businesses are not required to verify the legal employment status of truly independent contractors performing services for the business because those workers are not considered employees of the company.  There is one caveat, however.  The USCIS does remind employers that federal law prohibits individuals or businesses from contracting with an independent contractor knowing that the independent contractor is not authorized to work in the United States.  If you ensure that this independent contractor affirms in the contracting agreement that its employees have the legal right to work in the United States, then that should be enough.

If the worker is contracting with you as a sole proprietor, confirm that the worker meets the definitions set forth by the IRS for independence prior to contracting with him/her.  According to the definitions, an independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results.  There are a number of factors to meet this independence test, including checking workers that:

  • Contract to do a job according to their own means and methods.
  • Supply their own tools or materials.
  • Offer their services to the general public.
  • Work for a number of clients at the same time.
  • Have an opportunity for profit or loss as a result of labor or services provided.
  • Invest in facilities to do all or part of the work.
  • Direct the order in which the work is to be done.
  • Determine the hours during which the work is to be done.
  • Are subject to control only as to results.

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