Employment vs. Volunteering under U.S. Immigration Laws
In cases where individuals volunteer either for educational or altruistic reasons, then it can be argued that they are not engaged in employment. Problems may arise, however, whenever there is any form of compensation or remuneration other than wages.
Many U.S. employers and foreign workers concerned about the consequences of unauthorized employment inquire whether volunteering by a foreign worker constitutes unauthorized employment thereby potentially subjecting both the employer and the employee to immigration penalties. Also, some potential employees have nothing to do while they wait for their work permit application to be processed, and they ask if they may volunteer during this time.
Employers who knowingly hire a foreign worker who lacks employment authorization are subject to monetary fines. Foreign workers who are employed without authorization are deemed to have violated their status for some, but not all, purposes under the immigration laws. If the authorities become aware of their unauthorized employment, they could be subject to deportation, among other penalties.
The first question, then, is what constitutes “employment” under the immigration laws. The term “employment” means any service or labor for wages or other remuneration. Thus, if the foreigner has not received wages or other remuneration for services they have not engaged in employment. Volunteering therefore means that the foreigner does not and will not receive any wage or any other form of compensation for services or labor performed. Clearly, retroactive compensation for such volunteering after the individual obtains employment authorization is also precluded. In cases where individuals volunteer either for educational or altruistic reasons, then it can be argued that they are not engaged in employment. Problems may arise, however, whenever there is any form of compensation or remuneration other than wages. For example, it could be argued by Citizenship and Immigration Services (USCIS) that a foreign worker who is volunteering while being sponsored for a visa by the employer really is not a volunteer because the foreign worker is receiving remuneration, i.e., a visa, for the services rendered. Although good contrary arguments can be made, the law on this issue is undeveloped.
There is very little immigration law to guide employers and foreign workers regarding the issue of volunteering in general and what compensation other than wages constitutes remuneration. Thus, whenever there is a volunteer situation where there is any remuneration, a risk is being taken by the employer and the foreigner. Consequently, employers and foreign workers who have a volunteer relationship must understand that the employer could be required to pay a fine; the foreign worker’s ability to change nonimmigrant status or adjust status to permanent residence also could be affected. Employers would be wise to consult an attorney specializing in labor law for guidance in defining “volunteering” and other ramifications of “volunteering.”