Question: I have a job offer to work for a company in the States. I plan on using the TN visa. I would also like to volunteer my time at a local university doing research in a lab. I would have to sign a contract of some kind with the university to handle any liability issues of working in a lab. If I am under a TN visa with one company, can I enter into a formal contract with another organization that does not include any compensation without having to get another TN with the second organization?
Answer: The conservative approach would require filing for another TN. This would avoid allegations that you engaged in unauthorized employment, and insulate the university from violation of the immigration employer sanctions law. Otherwise, the research arrangement at the university would have to qualify as genuine volunteer work for you to participate without obtaining another TN and without subjecting the university to violations of immigration employer sanctions law.
The Immigration and Nationality Act (“INA”) makes it unlawful for an entity to employ a foreign national who has not obtained employment authorization through the USCIS. See INA § 274A. These “employer sanction” laws prohibit the provision of any service or labor by a foreign national in the United States for wages or other remuneration unless the foreign national has obtained employment authorization. See 8 C.F.R. § 274a.l. An employer who permits an unauthorized foreign national to provide services for wages or other remuneration violates the employer sanctions law. Fines for violating the employer sanctions provisions range from $100 for first-time violations to criminal sanctions (including up to six months in jail) for repeat offenders.
A “true volunteer” may provide services to an entity without violating the employer sanction laws as long as he or she does not receive any compensation. The legacy INS defined “volunteers” as individuals who “provide their services without compensation, including room and board, gifts, or the other benefits.” INS Clarifies Meaning of ‘Volunteer’ for Employer Sanctions Purposes, 66 Interp. Rel., No. 41 (Oct. 23, 1989). But where an organization has some form of control over the foreign national, e.g. they log their time and must work a minimum amount every day, or if it appears that the “volunteers” have some expectation of receiving a benefit for their labor, a violation of the employer sanctions law may occur. Legacy INS Legal Opinion, § 92-45 Employment of Unauthorized Aliens (Aug. 17, 1992). Additionally, if a foreign national is providing a service normally provided by a paid employee, then U.S. immigration may consider the activity unauthorized employment on the basis that the individual is receiving valuable training or experience or may be offered the reward of paid employment in the future.
We may look to the Fair Labor Standards Act (“FLSA”) for further clarification on the definition of volunteer (note that if an individual is not a “true volunteer”, an employer may be subject to a violation under the FLSA, which requires employers to pay certain employees at least a minimum wage). In pertinent part, a volunteer is:
An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours… Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer. See 29 C.F.R. 553.101.
Typically, “volunteers serve on a part-time basis and do not displace paid workers or perform work that would otherwise be performed by employees.” Wage and Hour Division, Opinion Letter (Oct. 7, 2002). An “economic reality test” is used to determine whether an individual is a volunteer under the FLSA and includes analysis of the following factors:
Are the services provided devoted to a religious, charitable, civic or humanitarian objective or are they provided directly to a commercial for-profit-business enterprise that derives an economic benefit from the services?
Is the organization organized for a business purpose, engage in ordinary commercial activity, and serve the general public in competition with other commercial enterprises?
Is the volunteer work an integral part of the organization’s business?
Does the volunteer work reduce the working hours of paid employees?
Does the organization pay regular employees to do the activities that the volunteer undertakes?
Does the volunteer expect to receive some form of compensation for the services provided?
Wage and Hour Division, Opinion Letter (Oct. 7, 2002).