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Are You Breaking the Law?

Cuffs ansd Paper

Dance Workshops with Foreign Nationals

by Miles Copeland
posted September 11, 2009

With the added sensitivity of more Americans unemployed and the ongoing furor over illegal aliens, it stands to reason that the US immigration authorities, not to mention the Internal Revenue Service, are becoming increasingly active in spotting people coming into the country saying they are only visiting and then actually working.   In the world of Bellydance there have been a number of foreign teachers who have entered under the guise of tourists but then teach.  Others have quite rightly taken the time or their sponsors have taken the time to get proper work permits.   

Then there is the issue of tax.  United States law states that unless you have a U.S. Taxpayer ID number or a Social Security Number the employer (sponsor) is obligated to deduct 30% withholding tax from the teachers fee PLUS local state withholding if there is one.  In California this is an additional 7% withholding. 

It is the sponsor’s obligation to deduct this; if it is not deducted and the full fee paid to the foreign teacher and discovered several years later in an audit or investigation, the sponsor will be forced to pay the taxes then and may even be fined.

In speaking to a foreign teacher recently who was planning a US workshop tour for which I would promote a Los Angeles engagement, when work permit and tax were mentioned it came as complete news to the teacher as something that had never come up before.  The teacher in question had entered the country previously declaring that it was a personal visit and promotional only, then given paid workshops.  In other words she had lied to immigration, breaking US Law AND presumably no tax was paid so both she and the sponsor put themselves at risk.  If discovered the teacher would have been deported immediately and very likely have had great difficulty EVER getting back into the U.S. 

U.S. immigration can take a real attitude when they want to.  Just ask the many would-be models who were stopped by New York immigration authorities who suspectied they were not tourists but were seeking work as models and sent back on the next plane.  Of course a 6-foot beautiful young girl who looks like a model is easy to spot for an immigration officer but these days they are all getting tougher on everyone remotely suspicious.  We have all heard about the laws against employers employing illegal aliens.  These would apply to employing a foreign national teacher who is here teaching without a work permit, or green card. 

 When the BDSS employs a foreign national we always take the time to get work permits.  We cannot take the risk either for ourselves or for the dancer to not do this.  Interestingly, Saphira, the person who does this for us, is herself a bellydancer who runs a successful bellydance school in the Washington, D.C. area. The cost runs $3,000-$3,500 for each application.

I would advise any foreign teacher to make sure her U.S. sponsor secures a work permit AND deals with the tax.

 A contract should state that "any and all taxes local and Federal are the sole responsibility of the sponsor".  Of course the fees charged by the teacher must take into consideration the cost of the visa and the withholding tax that the sponsor will have to pay.  It is a dangerous option for both teacher and sponsor for a teacher to come into the United States, especially now, to teach workshops and lie to US immigration saying that you are just a tourist.  You may have gotten away with it in the past but the timing now is not in your favor and the risk is just too great.

more info: Saphira@saffrondance.com for anyone interested. 

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   |       |    7 Comments

  1. No Gravatar
    Leslie

    Oct 21, 2009 - 10:10:33

    Miles,

    Thanks so much for posting all this information from the US perspective.  Being a policy analyst, I have just completed this same research from the Canadian perspective.   As in the US , in Canada there are often cases of instructors crossing the border to teach (this includes American citizens crossing into Canada), without awareness on either their part or their sponsors of the implications.  However it is both the responsibility of the workshop host, and of the instructor, to know how to do business in Canada.

    In Canada, the event coordinator must obtain a Labour Market Opinion (LMO) from HRSDC aka Service Canada.  This is a relatively straightforward process, providing that the instructor is aUS citizen, and will be in the country for less then five days.  Dance instructors are considered to be ‘Commercial Speakers Delivering Training’, and they are classified as Entertainment.   Please note that this process applies whether it is  an individual being hired directly, or whether an instructor is working for a company (this includes BDSS as an example).   The LMO should always specify the name of the individual entering the country.

    Once the event coordinator obtains the LMO, they have received permission to hire a foreign worker and the next step is for the foreign worker to purchase a work visa for $150 when crossing the border to work.  CIC is the agency that issues visas in Canada, please note that even if the instructor has been granted permission to work in Canada, CIC retains the authority to grant them entry into Canada (the LMO in itself does not equate permission to enter Canada).  All the usual reasons to deny someone entry into Canada still apply (for example, criminal record, DUI, etc).  The instructor will then enter the country on business and must submit a copy of the LMO upon entry.
    And finally, everyone’s favourite topic, taxes!  In Canada, CRA is the agency that is the IRS equivalent.  Since the instructor is a temporary foreign worker who most likely does not make significant earnings in Canada, it may be possible to ask for a waiver from withholding 15% of the income for tax purposes, however this application needs to be made in advance of the instructor entering the country, and it can also be denied.

    That being, the responsibility of the event coordinator is to withhold 15% of the instructor’s earnings, and file form T4A-NR, providing a copy to the instructor.  The instructor can then file a Canadian Tax Return form to get a refund of the tax paid – however due to reciprocal agreements between Canada and the US, it is also possible that the withheld tax will simply be applied directly to the instructor’s tax file.

    All said – it is far easier for a US based instructor to teach in Canada, then for a Canadian instructor to teach in the US.  Please note that in Canada, US performers do NOT need either an LMO or a work visa providing they are performing in a venue that does NOT serve food or alcohol.  If these are served, an LMO and work permit IS required, by the same process outlined above.

    Canadian performers who want to perform in the US, should refer to the publication:  Canadian Performers:  How to enter the United States – published by Canada’s Consular Affairs -www.voyage.gc.ca

    For more information on how to go through this process (as an instructor, or Canadian workshop host), feel free to email me at leslie AT shaktifusion DOT ca

  2. No Gravatar
    Tribalnoizes

    Sep 8, 2010 - 01:09:52

    This was a very, very interesting article. I’ve never even thought about this before. Well done!

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