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Risk of hiring International Students & Foreign Independent Contractors

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resolvedevs

New member
We're a new tech company thinking of hiring international students to help develop software for our product. I'd like to know the risk of hiring international students on F1 visas as well as hiring independent contractors from foreign countries. We understand the formalities of having them sign an NDA, etc. However, im mainly interested in how they are enforced(worst case scenario in their home country) and what the details/structure of those documents should contain.
 


FlyingRon

Senior Member
First off, you have to understand that you can't just hire/contract with an F-1. They are only allowed to work under the OPT rules which means you have to work out their employment in the course of their educational course of study. You need to be working with the international students office at whatever school you're hiring these guys out of.

Second issue is that you can have people sign NDAs from now until the cows come home, but if they go back to their own country to exploit your IP it will be hard (and in some countries impossible) to pursue any recourse.

Third, you should be darned sure that any "contractors" you hire, are in fact, treated as contractors. Computer programmers/engineers have a disposition to be treated as employees by the feds.

Be sure to comply with the federal taxation law (notably W-8BEN forms) for any foreign entities you contract with. Further, if your "contractors" physically reside overseas, you better be aware that there are certain employee laws that you might be opening yourself up to.
 
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Whoops2u

Active Member
You're going to need a tax ID number to pay them, I suspect the government checks all the numbers submitted through a database of visa holders.
 

resolvedevs

New member
You can't do what you're intending. F1 visa holders are not allowed to work with the exception of their OPT. That OPT must be done by an approved ACTUAL employer. It can't be done as an IC.
The students we have working for us will be working for us under OPT. We are just worried about enforcement of NDA's, etc. if they were to leave and go to their home countries.
 

quincy

Senior Member
Thank you for providing the name of your state.

Enforcement of nondisclosure agreements can be difficult if the specific information being disclosed in violation of the agreement is disclosed outside the US.

In the US, legal actions against NDA violators can include injunctions, trade secret lawsuits, awards of money damages (possibly punitive damages).

But if a violator returns to his home country, you would have to sue him under that country's laws in that country's court or compel the violator to return to the US to stand trial here.

There IS an agreement among many of the countries in the world called GATT (the General Agreement on Tariffs and Trade). Each country that is signator of GATT agrees to provide protection for trade secrets owned by a signatory nation, this as a way to promote international trade.

By the way, you also might want to consider having a noncompetition clause in any contract you draft.

I recommend you discuss your plans with a lawyer in your area.

Good luck.
 
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LdiJ

Senior Member
You're going to need a tax ID number to pay them, I suspect the government checks all the numbers submitted through a database of visa holders.
That is actually not true for contractors located outside of the US and working outside of the US.
 

quincy

Senior Member
I think there are enough potentially problematic areas in resolvedevs plans that an attorney local to resolvedevs should be consulted for a personal review.
 

FlyingRon

Senior Member
GATT is not likely to help him. The IP provisions are pretty limited in that, mostly limited to things like counterfeit items and patent protections.
 

quincy

Senior Member
Well, GATT addresses several areas, with one of these areas being trade secrets. How the trade secrets of businesses in other countries are to be treated is an important factor in international trade.

The reality may be that it is difficult to prevent disclosure of trade secrets. It is difficult to find and punish violators who reside in other countries.

But there are laws that exist to both prevent and to punish.

Edit to add: I like the editing you did to your first post, FlyingRon.
 
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