USA – NORTH CAROLINA Law and Practice Contributed by: Phillip Strach, Alyssa Riggins, Nathaniel Pencook and Cassie Holt, Nelson Mullins Riley & Scarborough LLP
or profile, the US consulate could decide not to issue the visa. If approved, the US consulate issues a visa sticker in the passport, which acts like a ticket for entry to the USA. The last step is for the foreign worker to enter the USA. The admission process involves the person interfacing with CBP officers, who are stationed at all ports of entry, including international airports and land-border crossings. The CBP processes the foreign worker for admission and, if entry is allowed, they will receive an I-94 admission record. The I-94 is the most crucial of the documents in the visa process, as it is the primary document used to demonstrate work authorisation for I-9 purposes, and its expiration controls the foreign worker’s duration of stay in the USA. The I-94 also facilitates Social Security Number applications, as well as the issuance of state driver’s licences. Most foreign workers will begin paying taxes immediately, including Federal Insurance Contributions Act (FICA) withholdings, whether or not they intend to live per - manently in the USA and take advantage of Social Security and Medicare benefits into retirement. A separate group of foreign workers may be in the USA and already have an independent basis for work authorisation. By way of example, they could have a family-sponsored Green Card application pend - ing that provides an interim EAD until the permanent residency process is complete and the Green Card issued. These individuals will not need employment sponsorship for a work visa, but that could vary depending on the facts. Foreign workers are required to report any US address changes to USCIS within ten days of moving. Oth - erwise, however, the USA does not have any of the further registration requirements – such as with the local police department – that are seen in some other countries.
employees, employers must manage the legal com - plexities of such arrangements to ensure compliance with relevant laws and regulations. Some key areas to consider are as follows. Wage and Hour Compliance Mobile workers are subject to the same compensa - tion and overtime laws (federal and local) as in-office employees. The challenge this poses to employers offering mobile work arrangements is tracking working and non-working time. As many have come to find, the line between being “off the clock” and “on the clock” is often blurred. Employers should clearly outline a time-keeping policy requiring accurate recording of all time worked and requiring advance approval before working any overtime, including minor tasks such as after-hours communications. The policy should set out disciplinary steps for violations. Health and Safety Employers are responsible for ensuring a safe and healthy working environment – even for mobile/ remote employees. By way of example, the Occupa - tional Safety and Health Act (the “OSH Act”) requires employers to ensure a safe work environment, includ - ing ergonomic considerations and addressing poten - tial hazards in the home workspace. Further, workers’ compensation benefits cover injuries “arising out of and in the course of the employment”. There is no limitation based on where a work-related accident occurs. Employees have the burden of proof to show that an injury is work-related – although argu - ably even a broken bone from a fall when the employee is walking between their home office and the kitchen could fall within the coverage. Thus, the health and safety of remote workers should be expressly addressed to the extent feasible in order to limit the employer’s potential liability. Best practices for employers include providing guidance on ergo - nomic considerations (workstation set-up and equip - ment provision), mental health support (resources and regular check-ins), safety policies and training (spe - cific “at home” or “mobile” work policies), and regular reviews/risk assessments.
5. New Work 5.1 Mobile Work
Mobile or remote work has become commonplace in the post-pandemic world. While mobile work provides new opportunities and flexibility for employers and
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