The following describes the U.S. Citizenship and Immigration Service (USCIS) interpretation of the concept of “work” versus “volunteering”.
A foreign national cannot perform work as a volunteer in a position that would normally be a paid position or if the foreign national believes that some form of compensation will follow.
The U.S. Citizenship and Immigration Service (USCIC) views such volunteering as “work” and requires proper employment authorization issued by that agency.
This specifically includes volunteering by a foreign national for a trial period leading up to compensated employment.
(A)n applicant for a change of status may not offer his or her services to a prospective employer, even on a volunteer basis.
The employment is unauthorized as long as the alien derives any benefit from it. (Lawrence J. Weinig, INS Deputy Assistant Commissioner for Adjudications, 66 NO. 19 Interpreter Releases 539).
In addition, the volunteer rule may give rise to a number of potential abuses.
For example, may an employer lawfully suggest to an alien that he or she should do a period of “volunteer” work while the employer is deciding whether or not to file a non-immigrant visa petition or a labor certification application?
USCIS has indicated that an applicant for change in non-immigrant status could not offer his or her services to a prospective employer on a “volunteer” basis.
USCIS has stated that: “if any type of benefit could accrue to the alien, though it may not be wages or fringe benefits, the services will be considered unauthorized employment.” (89-05 Immigr. Briefings 1).
Volunteer services for a prospective employer constitute unauthorized employment if the alien will ultimately derive some benefit from the work.
The ultimate question in most volunteer cases will be: What did the alien expect in return?
If he or she expected compensation, reward, or future benefit, then the volunteer work probably violates status. (95-05 Immigr. Briefings 1).
Many community-based and student based organizations offer opportunities for volunteering.
As long as no compensation is involved, and the opportunity is officially advertised as a volunteer position, the foreign national may participate.
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