To address the void, we propose that the Department of Homeland Security and the Department of State promptly formulate and issue policy guidance that authorizes the admission of certain digital nomads for up to six months as visitors under sections 101(a)(15)(B) and 217 of the Immigration and Nationality Act. Such policy guidance can help fill an emergent area of the ever-widening rift between facts of life and US immigration law in the absence of congressional reform. Carefully crafted, it can do so in a manner that conforms to existing legal requirements governing travel to the United States as a visitor and that allows the country to benefit economically from their lawful visits.

Many countries have established new programs authorizing the admission of so-called digital nomads: typically, college-educated professionals who use digital technology to perform their occupations remotely while traveling.¹ These initiatives generally authorize admission for short periods, which can often be up to six months, allowing income derived from employment abroad to be spent within the country.²

The motivations for digital nomad initiatives vary. Some countries may view them as a way to tap into the growing trend of location-independent work, attract skilled professionals and entrepreneurs, foster a global reputation for innovation, and facilitate knowledge transfer. Other nations may seek to recover revenue lost during the COVID-19 pandemic and to support local businesses going forward.

Unfortunately, the United States has yet to announce any digital nomad initiative. To address the void, the Department of Homeland Security (DHS) and the Department of State (DOS) should promptly formulate and issue policy guidance that authorizes the temporary admission of certain digital nomads for up to six months as visitors.³

The authorization of digital nomad admissions would further the stated policy of the US government to “promote legitimate international travel … both for the cultural and social value to the world and for economic purposes.”⁴ The absence of public policies on digital nomad admissions engenders disrespect for laws that are oblivious to the real world, where “work” may reside inside anyone’s phone. The lack of clear legal rules thus leaves officials tasked with making arbitrary decisions to facilitate or prohibit digital nomad admissions.

Rooted largely in legislation enacted over 70 years ago, existing US immigration statutes, regulations, and policies do not expressly authorize the short-term admission of digital nomads.⁵ Nor do these sources of authority explain how to manage the admission of noncitizens who are not digital nomads per se, but who lawfully visit the United States for personal or occupational reasons not amounting to local employment or labor for hire and log on to their laptops to attend to daily home-country business matters, such as checking emails, staying abreast of developments, and addressing urgent issues.⁶ For the sake of simplicity, this paper includes the latter group in the discussion of digital nomads because the underlying legal analysis and the need for clear policy applies equally to both groups.

In meetings with US Customs and Border Protection (CBP) officials, immigration attorneys have expressed concerns that noncitizens who may otherwise qualify as visitors under the Immigration and Nationality Act (INA) risk visa refusal or denial of admission based solely on their incidental use of portable technology to engage in activities not amounting to unauthorized employment in the United States.⁷ Despite recent indication in response to these concerns that DHS is taking the lead on developing relevant policy, the United States has yet to announce any digital nomad initiative.⁸ In developing such policy, DHS, in coordination with DOS, has the opportunity to provide guidance that allows for digital nomad admissions, which could help fill an emergent area of the ever-widening rift between facts of life and US immigration law. Although Congress should take the lead on fixing these problems, it has shown an unwillingness to involve itself in this area. The purpose of this proposal is not to sketch out the ideal immigration policy or even the ideal digital nomad policy, but rather to explain what officials can do within the confines of existing rules, including protectionist ones that intend to limit unauthorized access to employment inside the United States.⁹

In the absence of legislation that addresses the issue, DOS and DHS can and should formulate policy guidance on digital nomad admissions that has three main components:

1. Adoption of the position that a noncitizen’s intent to use digital technology remotely in connection with employment outside the United States does not preclude eligibility for classification as a B‑1 or WB visitor for business or B‑2 or WT visitor for pleasure under INA § 101(a)(15)(B) if such intent is incidental to the lawful primary purpose of the visit.
2. Explanation of how the adopted position conforms to existing requirements for classification as a B‑1 or B‑2 visitor (and a WB or WT entrant), which prohibits illegal access to employment inside the United States.
3. Recognition that DOS and DHS officers should exercise their discretion to decide in a given case whether the intent to use digital technology remotely is in fact incidental to the lawful primary purpose of the US visit and pursuant to employment abroad.

US immigration law categorizes nonimmigrants—noncitizens who intend to stay in the United States temporarily—under various classifications that correspond to the primary purpose of their stay and the activities that flow from it. Based on this purpose and these activities, nonimmigrants are issued a US visa in their passport and granted admission to the United States or are allowed to apply for admission under the visa waiver program, subject to satisfaction of any accompanying education, wage, work experience, nationality, and admissibility requirements. At times, if a noncitizen has an additional purpose for traveling to the country, such purpose and its corresponding activities, when viewed in isolation, could appear at odds with the requirements of the classification and seem to render the noncitizen ineligible. But if such additional purpose and activities are merely incidental to the required—and, importantly, the noncitizen’s primary—purpose and activities, they are not necessarily disqualifying.

This principle is well established in US immigration law, meaning that the distinction between primary and incidental intent drawn by this paper’s proposed digital nomad policy is not a novel or fabricated one.¹⁰ For instance, an employer seeking classification of a noncitizen as an L‑1A intracompany transferee who will provide services in the United States in a managerial or executive capacity must show that the services comprise job duties that are primarily managerial or executive. As such, in adjudicating petitions requesting L‑1A classification, US Citizenship and Immigration Services (USCIS) acknowledges decisions holding that the noncitizen beneficiaries of these petitions “may be required to perform some operational or administrative tasks from time to time.”¹¹ USCIS recognizes that such performance of tasks does not by itself disqualify the noncitizen from L‑1A classification.¹²

Examples also exist in which, as with digital nomad admissions, the incidental purpose and activities at issue involve the performance of labor in and of itself. For example, J‑1 foreign exchange visitors seeking to participate in an internship or training program are not formally work-authorized in the view of the State Department, with DOS obligating program sponsors to ensure that American workers are not displaced and that the program does not serve as a pretext to fill a labor need in the country.¹³ Yet, as a practical matter, DOS also “recognizes that work is an essential component of on-the-job training”; “that in many respects there are no conceptual or legal distinctions between an employee and a trainee”; and that “[t]hese two perspectives are not inconsistent.”¹⁴ Likewise, H‑3 trainees are permitted to engage in productive labor if it is incidental and necessary to their training.¹⁵

Using the same rationale, digital nomads and other travelers who will remotely access digital technology during their stay in the United States for reasons related to their employment abroad could be lawfully issued visas and admitted as B‑1 or B‑2 visitors (or WB or WT entrants) subject to existing conditions that already govern these classifications. Put differently, if digital nomads or other travelers intend to visit the United States primarily to engage in activities that are deemed to fall within the scope of “business” or “pleasure,” any incidental use of digital technology remotely in connection with their foreign employment need not disqualify them from B‑1, WB, B‑2, or WT classification.

This interpretation can be read as aligning with the guidance of the DOS Foreign Affairs Manual (FAM) that certain fact patterns amount to mere “intercourse of a commercial character” rather than US employment, and thus fall within the scope of permissible activities as a business visitor supporting B‑1 classification.¹⁶ Under this existing guidance, a noncitizen may be deemed a visitor for business whose primary purpose for traveling to the United States is captured by any of the guidance’s enumerated fact patterns. Assuming an intended activity and the arrangement under which the activity will be carried out comprise a noncitizen’s primary purpose for visiting, the question the existing guidance in the FAM seeks to address is whether such activity constitutes unauthorized “employment” in the country or, rather, merely the incidental activities of a visitor to the US that the INA permits.¹⁷

The proposed policy guidance urged in this paper assumes that a noncitizen’s primary purpose for visiting the United States is indeed classifiable as such an activity (be it for business or pleasure), and the remote activities to be performed digitally in connection with foreign employment are only incidental to this primary purpose. Since nonimmigrant classifications under the INA reflect the primary intended purpose of a noncitizen’s stay, any incidental work to be performed digitally in connection with employment abroad should have no bearing on eligibility for visitor classification.¹⁸

The statutory basis for B‑1 and B‑2 classification is found at INA § 101(a)(15)(B).¹⁹ This provision labels as a nonimmigrant a noncitizen “other than one coming for the purpose of study or of performing skilled or unskilled labor … having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” Legal authority governing the implementation of this statutory provision can be found in sources such as Titles 8 and 22 of the Code of Federal Regulations; policy guidance such as CBP memoranda and Volume 9 of the FAM; and various decisions of administrative tribunals and federal courts.²⁰ Unpacking these sources reveals several conditions that noncitizens must satisfy to obtain either of the classifications:

• They seek admission to the United States either
• for “business,” which refers to “conventions, conferences, consultations and other legitimate activities of a commercial or professional nature,” and which excludes “local employment or labor for hire,” or
• for “pleasure,” which refers to “legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature,” and which excludes visits “for the primary purpose of obtaining US citizenship for a child by giving birth in the United States.”²¹
• They will stay in the United States only for a period of specifically limited duration of not more than one year for visitors seeking admission using a visa or not more than 90 days for visitors seeking admission under the Visa Waiver Program.²²
• They will maintain, or establish at the end of their stay in the United States, a residence in a foreign country that they are authorized to enter.²³
• They have made adequate financial arrangements to defray the cost of their stay in the United States and their return abroad.²⁴

There is no reason why digital nomads and more occasional travelers for personal or business reasons who incidentally attend to day-to-day occupational matters arising from employment abroad could not meet those requirements.

Digital nomads may lead an itinerant lifestyle for many reasons. However, generally, the thrust of any given visit they make to a foreign country is the pursuit of personal opportunities for exploration, recreation, or enrichment—or, in the language of US immigration law, “pleasure”—even if remote work originating from abroad will be a part of their visit.²⁵

Similarly, it is hardly conceivable today that more occasional travelers, whose visit to a foreign country may be driven, for example, by a business need to attend an industry conference, won’t use their work laptops to respond to emails, address emergencies, and generally stay up to speed on day-to-day occurrences.

If their foreign-country destination is the United States, these digital nomads and more occasional travelers could be prepared to readily explain and document the fact that their visit is primarily for pleasure or business; the planned length of their visit; their authorization to enter another country upon departing the United States; and the financial arrangements they have made to support themselves for the visit’s duration. Relevant documentation could include lodging, sightseeing, and departing flight reservations; a conference invitation or itinerary; a passport or visa issued by the country to which the noncitizen will travel at the end of their visit; and proof of employment and income outside the United States. The incidental use of digital technology pursuant to employment abroad does not, by itself, preclude the ability of noncitizens to show that legitimate business or pleasure will be the primary purpose of their visit, or to meet any of the other classification criteria.

In the absence of congressional reform, this paper’s purpose is to detail how a digital nomad policy can be adopted without reforming the underlying statutes.²⁶ Existing laws and policies already require that generally any labor or services comprising the primary purpose for visiting the United States be performed only in connection with employment abroad.²⁷ To be compatible with existing rules, the proposed policy guidance on digital nomads could also expressly prohibit compensation or remuneration from a US source for any incidental work performed during a digital nomad admission.

This type of policy is already enforced in other areas.²⁸ DHS regulations explicitly allow B‑1 classification of Canadian and Mexican citizens who seek to travel for the primary purpose of carrying out work in an occupation listed in the United States-Mexico-Canada Trade Agreement (USMCA).²⁹ These noncitizens would otherwise require US employment authorization pursuant to TN classification but for the fact that they will be remunerated from a non-US source outside the country.³⁰ The implication is that remuneration paid from a US source (other than to cover reasonable incidental expenses such as transportation or lodging costs) so strongly signals the existence of local employment that it is prohibited for B‑1 visitors.³¹

The present proposal would not violate this rule. As long as any incidental remote work using digital technology is performed solely in connection with foreign employment and a job located outside the United States, the proposed policy guidance would not violate provisions of the Immigration Reform and Control Act (IRCA) that prohibit employers from employing a noncitizen in the United States knowing that the noncitizen is not authorized to be employed in the country.³² Even if it is assumed that IRCA applies to work performed incidentally, the purpose, letter, and implementation of the statute suggest that work at the direction of a foreign employer, and thus in furtherance of an employer-employee relationship established and effectuated outside US territorial borders, falls outside the scope of IRCA.³³

IRCA is intended to prevent jobs inside the United States from being filled by noncitizens without employment authorization. Therefore, activities engaged in during a short-term visit digitally, incidentally, and remotely in furtherance of a job that is based outside the United States likewise fall beyond the purpose of the statute.

The letter and regulatory implementation of IRCA also lend support to this logic. They suggest that what is prohibited is not the hiring or continued employment, per se, of noncitizens who are not authorized to be employed in the United States, but the employment of such noncitizens by US employers domestically, inside US territorial borders.

The qualifying phrase “in the United States” is used 21 times in IRCA’s opening section alone, with corresponding regulations and agency policy guidance likewise using language to suggest that IRCA’s prohibitions apply only to local employment.³⁴ For instance, the regulations define “employer” as “a person or entity … who engages the services or labor of an employee to be performed in the United States.”³⁵ This definition implies the existence of a relationship with the object of satisfying a demand for labor within the United States, not a relationship fostered outside the United States that merely may require or allow the employee to travel periodically to the country incident to the duties of a job located abroad.³⁶

Moreover, the two select groups of visitors under INA § 101(a)(15)(B) that are permitted to accept employment in the United States, and thus remuneration from a US source—namely, personal and domestic workers employed by nonimmigrants on work visas or by US citizens normally residing abroad, as well as certain categories of nonimmigrants and employees of foreign international airlines—are explicitly allowed to do so by regulations promulgated under IRCA that enumerate the classes of noncitizens that are authorized to be employed in the United States.³⁷

All other visitors, insofar as they are permitted to engage in occupational activities during their visit, can do so only in furtherance of employment they maintain outside the country. The absence of these other visitors from the list of noncitizens explicitly permitted by the regulations under IRCA to engage in local employment renders it apparent that they do not fall within the statute’s ambit.

By requiring that any incidental use of digital technology be performed solely in connection with employment abroad, the proposed policy guidance ensures that bona fide digital nomad admissions do not run afoul of the requirements of IRCA and corresponding regulations. More broadly, the proposed policy guidance aligns with the dual statutory duty to facilitate international travel while also preventing unauthorized access to employment inside the United States.³⁸ Proposed language to add to the FAM is attached as an Appendix to this paper.

Finally, it is worth emphasizing that this proposal would demonstrably benefit US workers by increasing demand for goods and services in the United States. Foreign visitors as a group spent about $225 billion in 2023—an average of about $3,400 per visitor.³⁹ Digital nomads—often high-income individuals—likely spend more than the average person during their stays in the United States. If this policy is effective at increasing digital nomad admissions, US workers stand to benefit significantly.

DOS and DHS officers responsible for issuing visas and granting admission enjoy broad discretion in making their respective determinations. Under the proposed policy guidance on digital nomad admissions, officers would need to exercise appropriate discretion case-by-case since there is no legal rule that states when exactly the intent to work is “incidental” to a noncitizen’s primary purpose for visiting.

But discretionary authority may be vulnerable to abuse. In efforts to facilitate a degree of consistency in the exercise of this authority, while also ensuring that meaningful discretion is retained, the proposed policy guidance should provide a non-exhaustive list of specific factors officers may consider.⁴⁰

Of course, if an officer is satisfied that the primary purpose of the visit is qualifying, it would also remain within the officer’s discretion to not pursue a line of questioning pertaining to any incidental intent to work remotely pursuant to employment abroad. Still, the proposed policy guidance would at least clarify in those circumstances that granting a visa or admission to such a noncitizen is a valid agency action on the merits in keeping with existing law and policy.

The issue of digital nomads will only become more pressing in the years to come, as more companies turn to remote workers and use technology to link their global workforce. In the absence of congressional action directly addressing the issue of digital nomad admissions, agency policy guidance can contribute to bridging the gap between US immigration law and the realities of modern work and travel. Beyond the direct economic benefits from increased tourism, explicitly promoting and protecting digital nomad admissions promises to make America a hub for innovative collaboration and knowledge transfer as visitors meet with and learn from potential partners in their fields.

But ultimately, policy guidance leaves much to the discretion of agency officers and is legally inferior to an act of Congress. Despite what is still the general novelty of the digital nomad phenomenon, the need to resort to agency action to fix such a commonplace practice—the incidental access of digital technology to engage in foreign employment remotely while visiting the United States—reflects, if nothing else, the truism that our nation’s immigration system needs to be updated to permit easier travel and migration of all types through comprehensive legislative reform. Until that happens, this paper’s proposed policy guidance can help.

[Proposed revision to the Department of State’s Foreign Affairs Manual, Vol. 9]

9 FAM 402.2–2(F) (U) Importance of Facilitating International Travel

(CT: VISA-1730; 03-10-2023)

a. (U) The policy of the US Government is to facilitate and promote legitimate international travel and the free movement of people of all nationalities to the United States, consistent with national security and public safety concerns, both for the cultural and social value to the world and for economic purposes.

[Proposed new section] b. (U) In facilitating and promoting legitimate international travel, consular officers should recognize that noncitizens applying for visitor visas routinely connect online even during temporary travels to the United States. Thus, a noncitizen’s intent to use digital technology remotely from the United States in connection with preexisting employment abroad does not preclude eligibility for issuance of a nonimmigrant visa as a B‑1 visitor for business or B‑2 visitor for pleasure under INA § 101(a)(15)(B) as long as such intent is incidental to the lawful primary purpose of the temporary visit. Similarly, prior entries to the United States of temporary visitors in B‑1 or B‑2 visa status, or in WT (waiver tourist) or WB (waiver business) status under the Visa Waiver Permanent Program, where such incidental use of remote technology occurred, do not preclude issuance of visitor visas under the B classification.

c. (U) You should, where appropriate, expedite applications for the issuance of a visitor visa for urgent business travelers and those with emergent or humanitarian purposes of travel, if the issuance is consistent with US immigration laws and regulations. You must be satisfied that the applicants have overcome the presumption that they are intending immigrants. See 9 FAM 403.3- 3 and 7 FAH‑1 H‑263.7 for more information on scheduling appointments and handling expedite requests.

Paparelli, Angelo A., David J. Bier, Peter Choi, and Stephen Yale-Loehr, “Why US Immigration Officials Should Allow ‘Digital Nomad’ Admissions,” Policy Analysis no. 983, Cato Institute, Washington, DC, October 29, 2024.