Can someone volunteer at a company without a visa?
By Jim Nolan | March 12, 2010
We often are asked if a company, either for-profit or non-for-profit, can use volunteer staff without getting them a work visa. We also get a related question if an owner of the company on another work visa, like H-1B, can start a company and volunteer to work at it without getting a separate visa. We’ll discuss both situations in this blog.
Assuming the volunteer doesn’t own part of the company he or she is volunteering at the answer is unclear. It is safer to get the volunteer work visas, but I don’t think it is required based upon my reading of the regulations as follows:
- A company needs a work visa for anyone who provides employment for the company.
- The term employment means any service or labor performed by an employee for an employer within the United States
- The term employee means an individual who provides services or labor for an employer for wages or other remuneration
- Therefore, as long as the volunteer is not paid or does not receive any other remuneration, very broadly defined and not limited to receiving direct payments, he or she would not be considered an employee. Since employment can only be done by an employee any activity done by a non-employee would not be considered employment.
- In this situation a company is not prohibited from utilizing these services without getting the volunteer work authorization.
- The big risk is that any benefit the volunteer receives could be considered “other remuneration”. Therefore, I’ll suggest that you do not provide anything of value to the intern, including free meals, transportation, any type of academic credit, or any other type of benefit.
- Some lawyers have expanded the definition of employment to include any type of activity which a company has hired US workers in the past to do or may do so in the future. While this is save, since this definition is not in the regulations I do not think you have to accept this.
- Someone on an F-1 student visa who is receiving “other remuneration” from a host company, such as credit or possibly even valuable experience, should not volunteer without being approved for practical training by their student advisors.
Please understand the above recommendations are from the company’s point of view. It does not mean volunteering cures any immigration problems the individual has or does not violate his or her visa status.
For example, someone who overstays their visa and volunteers at a not-for-profit does not regain their legal status. Also, someone who is in the U.S. on a tourist visa or on visa waiver program is not permitted to do volunteer work in this visa status.
So, the company can legally accept the volunteer work, but it could violate the individual’s legal status to provide the services..
Volunteering without pay or other remuneration would only apply to people who are legally in the U.S. in a visa status that would permit them to do non-employment activities. One example would be spouses of business visa holders or minor children who are old enough to work, but under 21 years old.
The situation is less clear for people who have work visas, like H-1B, L-1, etc. and want to start their own companies. It is legally permissible for anyone to own a business in the U.S. without a separate visa and they can receive the benefits of ownership, such as dividends and capital appreciation. However, if the owners want to provide services to the company they own, even without compensation, I think Immigration would consider this as work for “other remuneration” (to get the dividends or capital appreciation) and such work would violate their legal status in the U.S. without a separate work visa. If somehow the owner could show that there is no “other remuneration” then providing the services would not violate their visa status.
Topics: Business work visas, H-1B, Our Thoughts, Work Visas | No Comments »
How a U.S. citizen can get a GC for spouse or parents
By Jim Nolan | March 7, 2010
A question we get often is what does a U.S. citizen need to do to get a “green card” (GC) for his spouse or parents and does he or she need a lawyer to help? I would like to answer these questions, but please understand they do not apply if the sponsor is a permanent resident (GC holder) and not a U.S. citizen. A GC holder has a much longer and difficult road to sponsor his spouse and can’t sponsor his parents.
I will also assume that the spouse or parents will have an interview in the U.S. This is usually what most people want, but it is possible and, in some situations required, that they have their interview at the U.S. Embassy in the home country of your spouse or parents.
First, I would like to list what documents you need to mail to Immigration. You can download them from www.uscis.gov
Forms signed by U.S. citizen:
- Form I-130
- Form G-325A
- Form I-864 plus the last 3 years tax returns of U.S. citizen
Forms signed by spouse or parents
- Form I-485
- Form I-765 for a work card
- Form I-131 for travel papers
- Form G-325A – same form, but different information
- Form I-508 IF the spouse or parents ever had an E visa.
Need to include the following things:
- Check for filing fees which now is $1,365, but may change so please check
- Proof of U.S. citizenship – copy of birth certificate or passport
- Copy of the U.S. citizen or spouse’s divorce certificate, if any. DOES NOT apply if U.S. citizen is sponsoring their parents.
- Copy of U.S. citizen’s and spouse’s marriage license
- Proof that U.S. citizen is child of parents, if he/she is sponsoring his/her parents (usually citizen’s birth certificate)
- Copy of the spouse or parent’s birth certificate with English translation
- Proof that spouse or parents are legally in the U.S. This is usually a copy of I-94, visa stamp, I-20 and optional practical training (OPT) card if in the U.S. as a student
- 4 passport style pictures of U.S. citizen and 8 of spouse or parents , and
- Spouse or citizen’s medical exam results on appropriate form from doctor on list approved by Immigration.
It is important to be sure where to mail the forms. Immigration changes this frequently so check with Immigration at www.uscis.gov to be sure.
You should talk to an attorney before filing your papers if any of the following situations apply to you:
- U.S. citizen has ever sponsored another spouse for a GC;
- If U.S. citizen’s income is below the poverty level, around $20,000 for 2 people
- If the U.S. citizen has never met his spouse before the wedding or only meet a few times
- If spouse or parents are from a country on the terrorist watch list
- If spouse or parents aren’t in the U.S. or only arrived a short-time ago
- If spouse or parents are not in legal status in the U.S.
- If spouse or parents had ever been sponsored for a GC before
- If spouse has children who wish to get GC
- If spouse or parents need to travel outside the U.S. a few months after you mail in the papers
- If spouse or spouses children or parents have serious medical condition
- If spouse or spouses children or parents have ever been arrested anywhere in the world
- If spouse or parent has ever been in the U.S. on a J-1 visa.
Topics: Family, Practical Immigration Tips, “Green Cards” | No Comments »
Promotion at your visa sponsor could get you in immigration trouble
By Jim Nolan | March 3, 2010
If you promote an H-1B visa holder or change him or her to part-time you may have to file for a new H-1B visa before the changes take effect. If you don’t you could put your worker in illegal status. With the Department of Labor visiting more companies looking for changes in the visa papers this accidental mistake can be very serious and cause your worker to have to stop working quickly and leave the U.S.
The rule about this is simple, but how to apply it in real life is more complicated.
The rule is that if a person with an H-1B visa gets a new job, even in the same company, they can’t take it without the company first filing a new H-1B visa case. A job is “new” if it “significantly” different then the job in the visa papers.
What is “significantly” different is the problem. Even if the you don’t think it is, if Immigration thinks so they will cancel the visa and the person may suddenly have to leave the U.S.
There are a couple of things Immigration thinks about to see if a new job is “significantly” different than the visa job.
- Is there a new title? If so, it maybe new, but if it really the same job with a few more duties than the new title, by itself, isn’t “significantly” different.
- Is there new management responsibilities? If the visa job had no management responsibilities but the new one does it is probably a “new “ job.
- Is there a new salary? If the job has a significantly higher salary than the job in the visa papers it is probably a new job. My rule, though not an official one from Immigration, is that if the new job comes with a raise of 10% or more it is probably a “new” job.
If after you review these points you think your worker is getting a “new” job, you should file a new H-1B visa case before they start it. They don’t have to wait for it to be approved.
Another common situation is where a worker who was sponsored for a full-time job becomes part-time, either voluntarily or not. If this change is only temporary, even if you don’t know for sure how long, the company doesn’t have to file for a new H-1B visa.
However, it this change is permanent then the company has to file for a new H-1B visa before the change can take place.
Topics: H-1B, Practical Immigration Tips | No Comments »
How the spouse and children can stay to finish the school year
By Jim Nolan | March 2, 2010
Every spring we get questions from executives who are returning home about how their children can stay in the U.S. and finish their high school or grammar school year and how their mother can stay with them after he returns to the head office. The problem is that the executive’s wife and children have been in the U.S. under his visa and once he leaves they need their own visas to stay in the U.S., even for only a few months.
The other common way to handle it is for the mother to apply for a tourist visa (B2) for the few months she needs to stay with her children while they finish school. In the past Immigration has usually granted this request.
To apply for this visa she should send Immigration the following items before her husband leaves the U.S.:
- Form I-539 (you include all family, except students in the same form)
- Filing fee – in March 2010 it is $300
- A letter from the mother explaining why she wants to temporarily stay in the U.S. She should explain she needs to take care of her family while they finish out their school year.
- A bank statement to showing that the family can live financially while they remain in the US
- A copy of her current I-94. This is the little card-board card stapled in their passports.
- A copy of her passport page with her picture on it.
Also, the children who remain as students need a student visa and aren’t suppose to continue going to school without one. Many people ignore this point and there is usually no problem, but if Immigration finds out the children continue to go to school after their father doesn’t have a job in the U.S. it would consider them to be in illegal status. To get a student visa the students would need to get an I-20 from their high school, which is often very difficult because they aren’t used to giving them, and send in a request to change their status to F-1 using the same I539 form and have it approved before their dad leaves. Children in grammar schools can’t get student visas.
The instructions to the I-539 explain where you should send the forms so please read them before sending them in or register for our monthly free consultation and we’re happy to help. Most people don’t use a lawyer to do this, but it might be a good idea to have a lawyer review everything before you send it in.
Topics: Practical Immigration Tips | No Comments »
Changing your address with Immigration after you move
By Jim Nolan | February 27, 2010
Sorry to add more burden to all my international friends, but I want to remind you that Immigration requires every non-US citizen, including permanent residents, to update their address on line within 10 days of his or her move.
Because using their system is confusing I have prepared some instructions how to do it so please click here if, like almost everybody else, you find the system difficult . If you would like to pause the recording please use the pause key in the lower left hand corner of the video after you click the link. Even if you don’t have headsets or a sound system you can still see how to work with the software so please click on the arrow you will see when you open the software so you can see what to do.
By doing updating your address on-line you will be doing two things:
- Generally information Immigration of your new address.
- Updating the mailing addresses on your pending cases, if you have any.
Since Immigration is getting more strict on everything I would update your address within the 10 day period, or, if you miss it because of all the confusion of the move, do so as soon as possible.
Topics: Artist Green Card, Artist visa, Business work visas, Company Green Card, Family, H-1B, Practical Immigration Tips, Work Visas, “Green Cards” | No Comments »
New H-1B “cap” season April 1st – start early because big changes from last year
By Jim Nolan | February 26, 2010
New H-1B visas are more complicated this year! The difficult questions we are getting from our clients are:
- How long can I wait to send in the case to Immigration
- When do you have to decide to go ahead with the case before sending in the case
- Is the case likely to be approved
- Is the salary adequate
- is the employee likely to be approved for the visa
I’d like to share the answers we are giving to our clients.
When is the latest date I can file the case?
There are two parts to this question. The clear answer is you should file the case while the person in the U.S. is in legal status. This usually means before his or her optional practical training (OPT) card expires plus the 60 day grace period. If the person isn’t in the U.S. you don’t have to worry about this.
Beyond that there is no sure answer to this question. The company and employee have to balance two risks and decide which is great. The risks are:
- Delay paying filing fees The legal and filing fees are high. It is normal and reasonable for the company to be sure that the potential employee is appropriate and for the employee to decide if he or she really wants to work for the company. They would like as much time as possible to make this decision.
- But, they also want the case approved If the case is sent in too late there is no chance for a visa for a year. There are only 65,000 normal H-1B visas each year. Except for 2009 this limit was reached within a few days after April 1st , the earliest filing date. If people filed after that date the envelope was returned unopened. In 2009 the limit wasn’t reached until December 21, 2009, but Immigration didn’t announce this until December 23rd, two days later.
Unfortunately, we don’t know if this year will be like 2009 or the years before. Therefore, it is safer to file on March 31, 2010.
When do I have to decide to go ahead?
Since the clients need to pay the legal and filing fees when they decide to go ahead, they would prefer to delay the decision. Up until July 2009 we could prepare an H-1B case within a few days after the client said go ahead.
This has changed and now it takes at least a week and usually 10 day to 2 weeks s from the time we start working on the case until it is ready to file. The reason for the change is the new procedure to file a form with the Department of Labor is much slower and unreliable than the older one. This is not just for our office, but true of all lawyers.
Is my case likely to be approved?
There are two main reasons the case won’t be approved.
The first is that the company isn’t offering to pay a wage the Department of Labor thinks is appropriate for the job being offered to the H-1B person in the area the company is doing business. This is called paying the “prevailing wage”.
Up until July 2009 the company could do its own research to see what is the normal wage for the job. They would only have to show the research if the Department of Labor asked for it (and it usually didn’t), but did not have to show it before filing the case.
Now, the Department of Labor will not accept the company’s research and requires the employer use the wage that the Department puts on its Web site. Many employers think that the Department’s wages are too high and we need to spend time working on this.
Assuming the employer is comfortable offering the Department’s prevailing wage, the next risk is that Immigration may not approve the visa request. Our experience is that it is getting much more strict than in the past.
The problems are:
- Is the person’s college degree related to the job. An easy case for an approval would be a person being sponsored as an accountant with a college degree with a major in accounting. The same person being sponsored for the same job with a college degree with a major in English literature will have much more difficult time.
- Does the job normally require at least a college degree in a special major. A person with a bachelor’s degree in physics can’t get an H-1B visa as a taxi driver because Immigration doesn’t think it is a normal requirement for a taxi driver to have at least a college degree.
Immigration has gotten stricter in this area. Immigration has asked questions about whether a college degree with a specific major is a normal requirement in jobs we didn’t ha e any problem with a few years. These jobs include:
- Translators
- Graphic designers
- Art-type positions in general
- Basic sales and marketing positions
We usually have been able to get H-1B visas for these positions, but there is a disturbing trend and we can’t be sure in the future.
Topics: H-1B | No Comments »
What to think about if you want to hire someone who has an H-1B
By Jim Nolan | February 21, 2010
One of my clients wrote that they are thinking of hiring someone with an H-1b visa and asked what should they think about before making an effort. There are some potential tricks and if you are in this situation I would suggest you think about the following:
- How much of the 6 years has the person used? The time the person has used in his or her H-1B status will reduce the time you can sponsor him or her for an H-1B visa. For example, if they have already used 4 years on his or her H-1B you can only have them for 2 more years. You can also add on time the person has been physically outside the U.S. to the 6 years so you should also ask about how long they have been outside the U.S. and add that time onto the 6 years.
- Are they still working at their sponsor now and will stay there until you file for the case? If the person is no longer working for his or her current sponsor that is a problem and you should ask how long ago they left and why. If they are still with their current sponsor they can start working for your company the day after we file the case and do not need to wait until their case is approved to start working for you.
- Costs. The filing fee would be $1,570 (if you have less than 25 employees) or $2,320 (if you have more). Of this your company is legally obligated to pay $750 or $1,500. The rest is negotiable between you and the new employee.
- Family members. You should ask if they have a spouse and/or minor children. If so, they should be included your visa request and this will add $300 to the filing fees.
Topics: H-1B, Practical Immigration Tips | No Comments »
H-1B visa holders not let in the U.S. – How to avoid this problem
By Jim Nolan | February 17, 2010
Recently some unfortunate H-1B visa holders were not allowed into the U.S. at Newark Airport. When immigration attorneys asked what happened we learned that Immigration has started a new policy at Newark that people with H-1B and L-1 visa will be randomly stopped and questioned about their job and employers. If the immigration officer isn’t satisfied with the answers they will ask the poor person to either voluntarily return home without coming into the U.S. or, force the person to return to his or her home country. We don’t know if Immigration will do this at other airports, but we have to assume it will in the future.
The people who appear to be most at risk are people working in the computer industry who work at client’s office, not the office of the company who sponsored them for a visa. Immigration has been closely watching this industry to make sure that the people with the visas are really working for their sponsors and not being “farmed out” by recruiting firms.
Also at risk are H-1B and L-1A visa holders who are owners of the company who sponsor them.
In both situations Immigration is concerned that the visa holder is not really employed by his or her sponsor. In the computer industry, Immigration believes that the company whose office the visa holder is working at is the real employer and should file for the visa directly, not the sponsoring company. For self-employed people, Immigration is concerned that they are not really employees because the owners won’t fire themselves.
Any visa holder should be sure they have a copy of the forms and support letter sent to Immigration to get their visa with them when they travel and know what the forms and support letter say about the following:
- Their title and duties on the job;
- Their salary;
- Where they will do their work and, if not at the sponsor, why and how the sponsor is reviewing and controlling their work;
- For computer industry people they should understand and be able to explain how their sponsor will evaluate their work and tell them what they should be doing on the job. If they have any recent evaluations by their sponsoring company they should bring them. The client should not be evaluating the visa holder or controlling his or her work duties.
- For self-employed people the situation is more difficult. They can’t lie about the ownership of the company and, if the Immigration officer clearly is not going to let him or her come into the U.S., they should agree to voluntarily return home without coming into the U.S. and work on getting a new visa back in their home country.
We’ll keep you updated on this serious development.
Topics: Business work visas, H-1B | No Comments »
What to do if my GC expires and I’m not in the U.S.?
By Jim Nolan | February 14, 2010
I answered the following question in LinkedIn and wanted to share it:
In this year my GC will expire. I am not living in America. Where can I apply for a new Resident Card and do I have the right to get a new GC.
You can’t apply for a new GC while you are not in the U.S. However you can do a few things:
- You can try to return to the U.S even after your GC has expired. On September 13, 1999 the U.S. government sent a letter to all airlines that they should let any GC holder board their plan even if his or her GC expired, if the expiration date on the card is the only reason that not to let them on the plan. When you return to the U.S. you should file an I-90 to get a new GC. You can get the form and information how to file it here.
- If you are not residing in American you can’t keep GC, but… Residing, or residency, is a tricky subject and you should discuss it with an immigration attorney. If you have been outside the U.S. for more than one year the Immigration officer at the airport will probably take away your GC when you return. In this situation you should apply at the U.S. Embassy in the country you are living for returning resident status and should not come back to the U.S. until it is approved. Every Embassy has different procedure, but for an example see here for procedure in Japan.
Even if you have been back within the year it is still possible the Immigration officer at the airport may still take away your GC when you return. This depends on many factors, like if you have returned for 2 days every year for the last 10 years you may have trouble, and you should discuss it with an immigration attorney before returning to give yourself a better chance at the airport.
Topics: “Green Cards” | No Comments »
Your child is 21 – Congratulations! You made it, but if they want to stay in the U.S. they need their own visa!
By Jim Nolan | February 13, 2010
Many foreign businessman and diplomats raise their children in the U.S. and to their children America is their home. They go to school and all their friends are here. But, unlike their U.S. citizen friends, the foreign child’s 21st birthday is an important point with large immigration consequences.
Before turning 21 most child have visas allowing them to stay, travel in and out of the U.S., and go to school in the U.S. tied to their parent’s visa. However, on their 21st birthday they can’t use their parent’s visa anymore and need their own visa to stay in the U.S., travel outside the country, go to school, and work. Many times this change is not easy or quick and requires planning and advance action.
If the child doesn’t do anything before his 21st birthday, he (I will use he to mean he or she) has to leave the U.S. within 10 days and not return to live with his family or go to school. He may be able to get a tourist visa to stay a few more months to pack, but that is all.
To avoid this sudden change there are two common options.
First, if the child is in college, he applies for a student (F-1) visa. If he gets his student visa before his 21st birthday then he can continue his studies without interruption. However, there are a couple of things to be careful in using this option.
- Apply early enough. To get approved for a student visa can take up to 3 to 4 months after mailing in the papers to Immigration. If the student does not get the approval by his 21st birthday, he can stay in the U.S. waiting the decision, but will have to stop attending school. An alternative, which I’ll write about below, is he return to his home country, (Japan, Germany, etc.) to apply for an F-1 visa stamp at the U.S. Embassy there. If he gets a new F-1 visa stamp he can return and immediately continue his studies.
- Travel outside the U.S. is tricky. There are two tricky points. First, while the student’s is waiting for Immigration to approve his request for a student visa he can’t leave the U.S. and return except to go to get his new F-1 visa stamp. This is true even if he has a few more months on his family’s visa. Second, after the student’s visa is approved, he cannot travel outside the U.S. and return without first getting a student visa stamp from the U.S. Embassy in his home country. This is not always easy.
Second, the child’s parent applies a “green card” before the child’s 21st birthday. This is a very tricky legal area and the parent’s should talk to an experienced immigration attorney at least a few years in advance. The key point is that the parent must file the appropriate request for a “green card” for themselves and include their children as minors before their children’s 21st birthday. Even if the child gets the GC after turning 21 it will be OK.
However, if the parent files for the GC after the child turns 21 the child will not be included in his parent’s GC case and may have to wait between 7 – 10 years to get a GC.
Topics: Business work visas, Company Green Card, Family, Practical Immigration Tips | No Comments »
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