Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

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Can a Foreign National Whose Nonimmigrant Visa Has Not Yet Been Approved "Volunteer" for the New Employer?

Q: Can a foreign national who has timely applied for a new non-immigrant visa to work for an employer work without pay or "volunteer" for the company while waiting for approval of this new status?

A: No. "Employment" for purposes of defining unauthorized employment doesn't just mean getting paid. If the individual is performing productive work for the benefit of a US employer, and taking direction from that employer, they are generally considered to be employed in the sense of needing authorization to work. Generally, employees who perform productive work for the employer under the guidance of the employer - even if not for pay - are working without authorization and any employer who accepts such volunteer work without paying the employee may likely be violating Federal labor law.

Traditionally volunteer activities are generally accepted here: volunteer firefighters, someone serving in a soup kitchen, etc. typically don't need authorization to perform these tasks. But, just because an entity is non-profit doesn't automatically make any work performed for them acceptable without authorization - a soup kitchen server may volunteer without immigration authorization as someone in a traditionally volunteer role, a Development Director soliciting corporate donations for the same organization is a different matter.

Q: We desperately need this employee to begin a project and have timely filed an application for the appropriate visa. Is there any way to speed up the process of getting the employee on board with the project?

A: One possibility, if not already done at the time the petition is filed, is to pay U.S. Citizenship and Immigration Services the extra $1,225 for premium processing if the case type permits it (premium processing is available only or certain visas). This ensures 15-day turnaround from USCIS (not necessarily approval - the response may be a Request for Evidence or Denial as well).

There is a way to request that a case be expedited, but it is extremely difficult to meet the standards set for this - and often the time it takes for evaluation of the request negates any advantage.

There are occasionally other ways to permit the new employee to be working faster, but these options depend upon the company's structure and flexibility, the nature of the work, and other situation-specific factors. Consult an immigration lawyer for an examination of the circumstances and potential options.

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.