Is It Legal? Digital Nomads and Immigration

April 22, 2019

As technology continues to transform the way we work – laws and company policies struggle to keep up. One such case is that of the “digital nomad”.
What happens when the reality of immigration laws meets the hype?

(Part 1 of a 2 part series)

By Kent O’Neil

One of the more interesting developments to come out of the ongoing paradigm shift in the world of work brought by technology has been the rise of the “digital nomad”. The idea is often depicted in mainstream media as the long sought-after “holy grail” of work-life balance – the elusive marriage of the two seemingly incompatible partners of productive work and ultimate freedom. Articles and travel blogs feature pictures of barefoot millennials clad in t-shirts and board shorts sitting on beach chairs typing away on their laptops and chatting on headsets under a cerulean sky as the waves gently caress their toes. Sign me up.

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However, increasingly I see blogs and vlogs by digital nomads themselves exploring some of the realities and challenges of the nomad life beyond the hype. Most address challenges with maintaining productivity in non-work-conducive environments, self-discipline, maintaining a steady income, emotional challenges of living as a transient, etc. But rarely do I see anyone asking the fundamental question – Is it legal? Little to nothing about visas, taxes, professional licenses, etc.

Rise of the Digital Nomad

The term “digital nomad” can be traced back to a book on the subject published in 1997, but the earliest iterations of the lifestyle seem to appear in the mid-80s and the early technology linking computers through satellite. However, the opportunity to live as a digital nomad really came into its own in the present decade with the quantum leaps globally in internet speeds, Wi-Fi, cloud computing, cellular networks, smart phones, and laptop capabilities.

More specifically defined as “location-independent workers”, the typical digital nomad might live and work in anywhere from two to twelve countries in a year. While some might maintain a “home base” in one primary location, others simply relocate to a different city or country several times a year. In truth, those that maintain the digital nomad life for more than a year or two are rare, but that fact does not seem to dull the allure for those trying the lifestyle.

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In recent years, the proliferation of online communities of digital nomads, co-working and co-living spaces, and greater acceptance of remote working by employers has really entrenched the once fringe lifestyle as a movement. Just a start-up in 2014, the widely-covered Remote Year offers packaged digital nomad experiences (including travel, accommodations, and programming) specifically tailored for corporate employees to work as digital nomads for a year – touting its professional development value for both the employee and company. In its inaugural year, Remote Year received more than 25,000 applications for the 75 spots in its 12-country, 12-month excursion. It reports to have now worked with employees of over 100 companies – including 20 of the Fortune 500.

In some digital nomad hotspots in Europe and Southeast Asia, it has become almost a cottage industry catering to nomads with workspaces with high-speed internet, short-term housing, conferences, and networking and social events. There is now even an annual “nomad cruise” billed as a floating digital nomad conference and community gathering.

Boasting an online community of 100,000+, the popular website Nomad List maintains a database, ranked by desirability for digital nomads, of more than 2,113 cities around the world. The current top three are Canggu Bali (Indonesia), Bangkok (Thailand), and Budapest (Hungary). Locations are evaluated on such factors as cost of living, safety, internet speed and free Wi-Fi access, weather and air quality, quality of life, and foreigner, race, and LGBT friendliness.

Law Chasing Technology

As in many aspects of modern life and business, the speed at which technology is advancing is leaving the law behind chasing to catch up. That includes the area of immigration. The majority of immigration laws and regulations – even in the most technologically advanced nations – were drafted and enacted in the pre-internet era. While immigration authorities have been relatively quick in some nations to embrace technology tools like digital passports and visas, online applications, and digital biometrics and facial recognition – the basic underlying assumptions regarding the world of business and work have not changed.

Most immigration laws assume that “work” takes place in the physical location of the worker. That was, for the most part, true pre-internet. However, one could argue that much of the work in modern business has no physical location. A team of software and network professionals located in multiple countries can now all work on the same project stored in the digital cloud. They can even change physical locations and countries with no fundamental change in the work. All that is needed is a computing device and an internet connection.

Am I “Working”?

All this makes the visa and immigration component of digital nomads somewhat hazy. Even in the highly structured Remote Year digital nomad experience – neither advice on, nor assistance in obtaining, the proper visas is included. The Remote Year website makes it clear that “each participant is responsible for determining what, if any, visa is appropriate for them and securing their own visas for each destination on their itinerary.” They advise, “consulting an immigration/visa legal professional or getting in touch with the relevant embassy is a reliable way to determine whether you need a visa to travel to the countries.”

If I (as a U.S. citizen residing in North Carolina, for example) open my business laptop while on vacation in Thailand to finish this blog… am I working in Thailand? I entered Thailand visa-free, mostly for vacation. However, I brought my work laptop knowing I needed to finish this blog. My main intention was a vacation, but I intended to work as well.

How much clearer is that intention to work when digital nomads enter Thailand to stay for three months – especially when they have no permanent residence or home office? They carry laptops, portable auxiliary monitors and storage devices, scanners, headsets, and maybe even old-school business files – along with their board shorts and sunscreen. It is common now for border authorities in many countries to ask you to boot-up your laptop and let them examine it.

Do I Need a Work Visa?

So are digital nomads “working” in the countries to which they travel? Technically, yes. However, most digital nomads enter the country using visa-free privileges based on their passports or via tourist visas. In almost no countries are you permitted to work while visa-free or on a tourist visa. In order for a foreign national to legally perform work in most countries, you need a work visa.

Some digital nomads erroneously assume that as long as they are not working for an employer located in the country – they are not working there. Even in the pre-internet era, that was a faulty assumption. If my U.S.-based boss sends me to perform an assignment in Thailand – I am probably working in Thailand, and I will need a work visa. The consideration is not for whom I work; but whether my activities constitute work.

Other digital nomads, I believe, understand that they may not be meeting the strict letter of the immigration law. Nevertheless, their thinking is that the lifestyle benefits outweigh the minimal chances of being caught and the potential consequences of violating the country’s immigration laws.

Part 2 available now: