There is at least one groundbreaking, low-hanging-fruit solution to modernize U.S. immigration policy for the digital age — one that requires no action by Congress.
David Bier, Director of Immigration Studies at the Cato Institute, and leading immigration lawyers (Cornell Law Professor Stephen Yale-Loehr, Vialto Law’s Peter Choi and this blogger) published a proposal today (accessible from the Cato Institute’s website) that addresses a critical gap in current immigration law: the uncertain legal status of digital nomads and business travelers who need to stay connected to their foreign employers while temporarily visiting the United States for business or pleasure.
The Current Challenge
As David Bier explains in today’s Cato Daily Podcast, U.S. immigration law fails to account for modern-day facts of life. Business travelers, tourists and digital nomads face uncertainty when accessing their work emails or participating in transnational virtual meetings while on U.S. soil, potentially risking (1) the denial of visitor visas, (2) refusal of entry to the U.S., and (3) government accusations that such activities violate their U.S. nonimmigrant status.
The Proposed Solution
The authors’ proposal calls for the Department of State and Department of Homeland Security (DHS), including DHS’s component agencies, U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP), to issue clear policy guidance that would:
- Allow visitors to use digital technology for remote work connected to foreign employment.
- Maintain visitor status (B-1 business visitors, B-2 visitors for pleasure or ESTA visa waiver entries in WB [waiver business] and WT {waiver tourist]) as long as remote work is incidental to the primary purpose of the visit.
- Permit stays of up to six months for qualifying digital nomads and visitors.
Suggested revision to the Department of State’s Foreign Affairs Manual:
9 FAM 402.2-2(F) (U) Importance of Facilitating International Travel
[Proposed new section] b. . . . 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.
This policy change offers several benefits:
Economic Impact
- Generates significant tourism revenue, with foreign visitors spending approximately $225 billion in 2023.
- Attracts high-income digital nomads who typically spend more than average tourists.
Innovation and Knowledge Transfer
- Reinforces the primacy of the U.S. as a hub for global talent and innovation.
- Facilitates international collaboration and knowledge exchange.
- Aligns U.S. policy with global trends, as dozens of countries already offer digital nomad visas or admissions policies.
Why Support Is Needed
Although not requiring the promulgation of a regulation, the proposal nonetheless requires coordinated action from multiple federal agencies:
- DHS
- USCIS
- CBP
- Department of State and U.S. embassies and consulates worldwide
Business leaders, industry associations, and individuals can help advance this initiative by:
- Advocating for the policy change
- Sharing experiences about the impact of current restrictions
- Supporting the proposal authors’ and the Cato Institute’s efforts to modernize immigration policy
Time for Action
While comprehensive immigration reform remains a long-term goal, this policy guidance offers an immediate solution to a pressing need. The proposal addresses modern digital realities and aligns with existing legal frameworks (including a recognition, as the authors note, that tax law requirements must still be satisfied).
The authors’ proposal represents a practical step toward modernizing U.S. immigration policy. By urging adoption of a digital nomad admissions policy, businesses and individuals can help shape a more welcoming environment for global talent while maintaining appropriate immigration controls.
The future of work is increasingly digital and mobile. It’s time for U.S. immigration policy to reflect this reality and maintain America’s position as a top destination that welcomes global talent and promotes innovation, tourism and domestic employment.