Volunteering Versus Employment
US federal immigration regulations define an employee as someone who performs services "for wages or other remuneration " [8 CFR 274a. I(f)]. Remuneration can include monetary reimbursements or food.
The US Department of Labor uses Section 3(e)(4) of the FLSA to determine what constitutes a volunteer. The following guidelines apply:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Examples of Volunteer Work
In many cases, the nature of religious, charitable and similar nonprofit organizations and schools allows individuals to volunteer their services in some capacity, usually on a part-time basis, but not as employees or with the expectation of pay for services rendered. For example:
Individuals may help out in a shelter or workshop
Individuals may assist people in hospitals or nursing homes to provide personal services for the sick or the elderly
Individuals may assist in a school library or cafeteria as a public duty to maintain effective services
Individuals may volunteer to perform tasks such as driving vehicles or folding bandages for the Red Cross
Individuals working with children with disabilities or disadvantaged youth
Individuals helping in youth programs as camp counselors, scoutmasters, or den mothers
Individuals providing child care assistance for needy working mothers
Individuals soliciting contributions or participating in benefit programs for such organizations
Individuals volunteering other services needed to carry out their charitable, educational, or religious programs.
The activities outline above, performed under such circumstances, do not create an employee - employer relationship. However, for immigration purposes, US immigration authorities may consider any position, if normally occupied by a paid employee or worker, as "employment", even if uncompensated and thus no longer considered volunteering. (Matter of Hall, 18 1& N Dec. 203(BIA 1982))