Many foreign nationals lawfully present in the United States do not hold, and cannot obtain, employment authorization. For example, a nonimmigrant lawfully present in the United States in B-1, B-2, F-2 or H-4 status may not accept employment. Nor may those in J-2 status who do not possess a valid Employment Authorization Document. This Memorandum will address the circumstances where “volunteer” activities may violate the prohibition against unauthorized employment.
THE FOLLOWING SITUATIONS WOULD LIKELY BE CONSIDERED “EMPLOYMENT” UNDER DHS RULES AND THUS CANNOT BE CONSIDERED “VOLUNTEERING”:
- Compensation of any type is received. Any form of compensation, whether in terms of payment, fringe benefits, or “payment-in-kind”, is prohibited. Moreover, if the “volunteer” activities are understood by the foreign national to yield some future tangible benefit conferred by the Mines or non-Mines employer (i.e., a paid position in the future), then those activities are not permitted.
- Job Duties are those which are normally compensated. “Volunteer” (i.e., unpaid) performance of job duties that are normally compensated are prohibited. Put another way, unless the job duties being performed or the position being filled is one that is normally performed or staffed by a volunteer, those job duties may not be performed by a foreign national without employment authorization as a “volunteer”.
- The job would normally be filled through a recruitment process. If the position being filled is one in which the Mines would normally conduct an HR-supervised recruitment, then that position may not be filled by a “volunteer” who lacks employment authorization.
- The job is training or preparation for a paid position. If the job duties being performed are considered by Mines or non-Mines employer to be preparatory for a paid position – i.e., training or a trial period – those job duties may not be performed by a foreign national who lacks employment authorization.