Volunteering

Many international students are interested in volunteering their time during their stay in the United States. Volunteering may take a number of forms. You may wish to help out in a food bank, Habitat for Humanity, or other charitable project. Others may be interested in volunteering in a company in one’s field, perhaps in order to “shadow” or observe to gain some real-world experience. Or perhaps you have a special skill, such as computer programming, and would like to donate your time to a non-profit agency. While the issue of volunteering may seem clear-cut (“I’m not getting paid, therefore I am not working”), it is actually a complex area in which immigration regulations and labor law intersect. Some of these activities are legally acceptable, and some are not. If you are interested in volunteering, you must be aware of the relevant regulations so that you (and the recipient of your time) do not inadvertently violate these regulations and thus be penalized for unauthorized employment.

Frequently asked questions

How do I know if the volunteer work I want to do would be considered “employment” by the Department of Labor or the Department of Homeland Security?

I don’t understand why the Department of Labor would be concerned if I decide to volunteer my time, as long as I am not getting paid.

How is a volunteer legally different from an employee?

Can I have some examples of permissible and non-permissible work?

How do I know if the volunteer work I want to do would be considered “employment” by the Department of Labor or the Department of Homeland Security?

There are some basic guidelines that you can use to determine whether or not your proposed volunteer activity might be considered unauthorized employment. When you are considering volunteering, ask yourself these questions before you begin:

  1. Are the services performed for civic, charitable, or humanitarian purposes?
  2. Are the services entirely voluntary, with no direct or indirect pressure by the employer, with no promise of advancement and no penalty for not volunteering?
  3. Does your proposed service impair the employment opportunities of others by performing work that would otherwise be performed by regular, paid employees? Are you providing services that are the same as services provided by someone who is paid?
  4. Is there any expectation of compensation either now or in the future for these services?

You should be able to answer “yes” to questions 1 and 2, and “no” to questions 3 and 4. If you cannot, it is likely that your proposed volunteer activity is more likely unpaid employment, and could subject both you and the employer to heavy penalties.

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I don’t understand why the Department of Labor would be concerned if I decide to volunteer my time, as long as I am not getting paid.

Keep in mind that the Department of Labor is concerned both with the protection of jobs for United States citizens, and with the prevention of exploitation of workers. It is illegal for an employer to pressure you to work for free, or to engage you in activities for which it is usual to be paid. While both you and the employer might be happy with the arrangement (for example, working unpaid in a company in order to gain job experience), this is considered an unfair arrangement because that work is usually performed by a paid person. For the company to not pay the person doing the work is considered exploitation by DOL.

Remember the questions above and these basic guidelines:

  1. You should not engage in volunteer work if that work is usually performed by someone who is paid.
  2. You should not engage in volunteer work if there is any expectation of current or future compensation—including not only wages, but a promise of a future job, gifts, or other benefits.

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How is a volunteer legally different from an employee?

This is a tricky question to answer, and goes beyond the simple measure of whether or not the person doing the work is getting paid. The Fair Labor Standards Act defines an employee as:

“(1) Except as provided in paragraphs (2),(3), and (4), the term “employee” means any individual employed by an employer….

(2) In the case of an individual employed by a public agency, such term means –

(A)   any individual employed by the Government of the United States – (i) as a civilian in the military departments (as defined in section 102 of title 5, United States Code), (ii) in any executive agency (as defined in section 105 of such title), (iii) in any unit of the legislative or judicial branch of the Government which has positions in the competitive service, (iv) in a non-appropriated fund instrumentality under the jurisdiction of the Armed Forces, or (v) in the Library of Congress;

(B)   any individual employed by the United States Postal Service or the Postal Rate Commission; and

(C)   any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual – (i) who is not subject to the civil service laws of the State, political subdivision or agency which employs him; and (ii) who – (I) holds a public elective office of that State, political subdivision, or agency, (II) is selected by the holder of such an office to be a member of his personal staff, (III) is appointed by such an officeholder to serve on a policy making level, (IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or (V) is an employee in the legislative brand or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.

(3) For purposes of subsection (u), such term does not include any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s immediate family.

(4) (A) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate government agency, if – (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (ii) such services are not the same type of service which the individual is employed to perform for such public agency.

(B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement.”

(Section 3 (e), Fair Labor Standards Act)

A volunteer is defined thusly:

a) 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 performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4)(A) and (B) of the FLSA and the guidelines in this subpart.

(b) Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

(c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.

(d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

(29 C.F.R. 553.101)

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Can I have some examples of permissible and non-permissible work? top >>

While we cannot provide here every possible example of permissible and non-permissible work, here are some general examples of volunteering you may be thinking about.

Permissible:

“Candy striper” in the hospital, literacy tutor, helper in a soup kitchen, builder for Habitat for Humanity, crisis line counselor for domestic violence or rape crisis phone hotline.
Why?
These positions are “pure” volunteer activities; they are performed as acts of charity to benefit the community. They do not displace an American worker, and they are not usually performed by someone who is paid for the service.

A person skilled in computer programming volunteers his/her services to a nonprofit/charitable organization such as a substance abuse counseling center to help them design a computer based intake system to log their calls.
Why?
While the "work" of computer programming would normally be a paid activity, note that in this circumstance it is performed for a nonprofit/charitable organization which traditionally depends on "gifts in kind" (items, resources, or services donated) to conduct its business. The programming is a gift of time and talent to an organization that depends on such gifts, with no expectation of payment or a future job.

 

Not permissible:

The director of a local non-profit, such as a literacy organization, soup kitchen, or domestic violence shelter, if that position is usually paid.
Why?
Even if the position you are interested in is for a non-profit organization that engages in charitable work, if the position is usually a paid one, you should not volunteer. To volunteer in a position that is usually paid would be considered to be unauthorized employment.

Unpaid work in a company where you would get on-site job experience, if your activities would usually be paid.
Why?
Again, if the activities you are engaging in as a volunteer would normally be performed by a paid worker, you would likely be in violation of the Fair Labor Standards Act and immigration law. For example, you could not “volunteer” as a lab technician in a company in order to gain work experience in that field if you would be doing the same thing as a paid worker. The only time that this would be acceptable is in a true “training program,” in which you are closely supervised and the employer is getting no measurable “work” from your activities.

 

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Please consult with your international student advisor if you have any questions about the specific activity in which you wish to engage.

Bibliography:

“Can Suzy Volunteer until her Visa is Approved? ‘Volunteering’ in the crossroads of immigration and labor law.” Presentation at NAFSA Region VIII Conference, Bethesda, Maryland, Nov. 22, 2002. By Murray Welsh and Helene Robertson.

“Volunteering.” Duke University International Office. Frequently Asked Questions web resource.