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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 a work visa, 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 volunteer, 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 safe, 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. However, someone one working at a company in an H-1B status could volunteer at another company and not violate his or her H-1B 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.
However, there may be another legal problem with unpaid internships with for-profit companies unrelated to immigration law. The Department of Labor has rules which limit when for-profit companies can have these internships. Please see an article in the New York Times about this.
Therefore, before for-profit companies start unpaid internships I suggest that they discuss it with an attorney who knows about labor and employment law.
Topics: Business work visas, H-1B, Our Thoughts, Work Visas | 4 Comments »
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