Authorization for working prior to receiving EAD and AOS

[Usui Takumi 1,562]

Guys, I hope this point comes through clearly. Unless you are adjusting from a status that allows you to accept employment or hire with compensation involved or not involved, you cannot work, volunteer or accept employment prior to receiving permission for the Department of Homeland Security. It is quite charitable to volunteer ones time, but immigration laws deem "volunteering" as work or accepting employment.

*Len* had it correct, needless to say. Gary and Alla's post about the business consideration has very serious pitfalls unless you do the required research. Business and immigration laws require certain requirements be met where a non-US Citizen is involved as owner or have controlling interest (partner) in the business. With respect to the scenario outlined in the OP, again, your existing status prior to AOS or employment authorization will determine whether you can "volunteer". From what I've read, your case suggests you will be out of compliance with immigration laws.

Generally I agree with you accept there are opportunities to volunteer where no personal gain is possible.

For instance if you are a baker and you volunteer at the animal shelter because you like animals that is fine. If you are a vet who hopes to get a job at the animal shelter after volunteering with them for the period your without EAD that is another situation entirely and goes against what USCIS says.

Edited November 14, 2009 by Sousuke

[Usui Takumi 1,562]

I've posted this guide in a previous thread quite awhile ago regarding volunteering:

The following describes the U.S. Citizenship & Immigration Service (USCIS) interpretation of the concept of “work” versus “volunteering.”

• A foreign national cannot perform work as a volunteer in a position that would normally be a paid position or if the foreign national believes that some form of compensation will follow. The U.S. Citizenship and Immigration Service (USCIS) views such volunteering as “work” and requires proper employment authorization issued by that agency. This specifically includes volunteering by a foreign national for a trial period leading up to compensated employment.

• [A]n applicant for a change of status may not offer his or her services to a prospective employer, even on a volunteer basis. The employment is unauthorized as long as the alien derives any benefit from it. (Lawrence J. Weinig, INS Deputy Assistant Commissioner for Adjudications, 66 NO. 19 Interpreter Releases 539)

• In addition, the volunteer rule may give rise to a number of potential abuses. For example, may an employer lawfully suggest to an alien that he or she should do a period of 'volunteer' work while the employer is deciding whether or not to file a nonimmigrant visa petition or a labor certification application? Recently, the INS indicated that an applicant for change in nonimmigrant status could not offer his or her services to a prospective employer on a 'volunteer' basis. The INS has stated that: 'If any type of benefit could accrue to the alien, though it may not be wages or fringe benefits, the services will be considered unauthorized employment.' (89-05 Immigr. Briefings 1)

• Volunteer services for a prospective employer constitute unauthorized employment if the alien will ultimately derive some benefit from the work. The ultimate question in most volunteer cases will be: What did the alien expect in return? If he or she expected compensation, reward, or future benefit, then the volunteer work probably violates status. (95-05 Immigr. Briefings 1)

Edited November 14, 2009 by Sousuke

[Flyer92 2]

Sousuke, I hope everyone read your post.

With immigration law set aside, the majority of the laws within the United States, especially federal laws, really are written by lawyers and a lot of which can be interpreted differently. Can you imagine an AOS candidate, in the middle of an interview, try to explain their interpretation of US immigration law on volunteering and how it applies to them. Can you further imagine if the official on the other side of the table thinks differently or holds a different interpretation of the same law.

Guys...reality check Alert:

If you think or know doing something, or not doing something can in some way shape or form affect the outcome of the case...guys be smart and don't make the interviews harder than it needs to be. Questions will be asked, and the interview is the last place you want to be arguing a point, especially US law?!

[Usui Takumi 1,562]

That is definitely solid advice if your adjusting on the VWP.

I will say though if you are volunteering with no desire to be employed (like in the baker's example above) then the topic will not come up because with or without EAD you've never worked or been employed at the place you are volunteering.