Does Volunteer Work Count as Employment? U.S. Immigration & Labor Rules

See when U.S. law treats volunteer roles as employment, including risks for F-1 and J-1 students. Get guidance on legal volunteering, unpaid internships, nonprofits, and Department of Labor factors that prevent unauthorized employment.

By Brad Nakase, Attorney

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Table of Contents
1. Introduction
2. Work or Volunteering
3. Unpaid Internship or Volunteering
4. Volunteering Guidelines: The United States Department of Labor

Introduction

Volunteering may sound straightforward to many people. It’s a complicated topic where labor laws and immigration laws collide. You must be aware of the applicable laws if you wish to stay out of trouble and refrain from engaging in illegal jobs.

Any employment outside of school for overseas students in F-1 and J-1 status requires authorization. You would be in breach of the F-1 or J-1 standards if you worked off campus without the required work permit. Loss of lawful immigration status in the United States, potential deportation by the United States Department of Homeland Security, and significant challenges in obtaining a visa to enter the country in the future are all plausible outcomes.

Within the Code of Federal Regulations, Chapter 214.1(e), which governs immigration in the United States, states that a nonimmigrant who is allowed to work may only work in jobs that have been approved. A nonimmigrant’s inability to maintain status is any illegal employment.

Before offering or accepting unpaid work, it’s essential to understand “When does volunteer work count as employment?”

Work or Volunteering

What is the difference between a volunteer & an employee? The common consensus is that the only difference lies in the fact that volunteers do not receive payments as employees do.

Does volunteer work count as employment? It depends.

The U.S. labor laws differentiate between the volunteers and the employees based on factors other than the paid or not paid basis. For those with F-1 or J-1 classification, unpaid labor may nevertheless be regarded as employment.

An employee: what is it? According to immigration regulations, an employee is defined as “a person who offers labor or services for a company for compensation or other recompense.” The word remuneration is very broad and accommodates a broad scope of non-cash incentives such as gifts, free accommodation, and meals.

A volunteer: what is it? The Department of Labor defines a volunteer as a person who serves in hours with charitable, civic, or humanitarian causes. It is done without the commitment, expectation, or acceptance of receiving money in relation to services offered.

The work must meet the following criteria to be qualified as volunteer work:

  • No anticipation of payment
  • A legitimate employee cannot be replaced by a volunteer.
  • The volunteer’s services shouldn’t be the identical ones for which they were previously compensated or for which they hope to be recruited and compensated in the future.
  • Services are rendered for a nonprofit organization with a humanitarian, religious, or public service goal.
  • Employment at a for-profit company is defined as work that must be paid for. The sole exception is for instructional courses in which the learner operates somewhat like an employee but is closely supervised and doesn’t contribute any meaningful, quantifiable work to the company. A salaried employee cannot be replaced by a trainee. That’s why the question “Does volunteer work count as employment?” is so important.

Unpaid Internship or Volunteering

Volunteering and an unpaid internship are different.

As has been stated above, volunteering refers to donating time to a charity organization or humanitarian organization without compensation or any other form of reward. Provided that it meets the above-mentioned requirements, F-1 and J-1 students can volunteer. It would be acceptable to volunteer at a local food bank, homeless shelter, or US Red Cross, etc.

Conversely, unpaid internships typically do not fall under the category of “volunteer” work. Paid and unpaid internships are mostly provided by private companies and are associated with the intern’s topic of study.

Does volunteer work count as employment? When it’s genuine community service, the answer is no.

Volunteering Guidelines: The United States Department of Labor

The US Department of Labor concentrates on circumventing the exploitation of workers, in addition to securing employment for the United States citizens. To make sure that work that ought to be compensated isn’t performed for free, they have passed legislation. In situations where the work is typically done by a paid individual and both the employer and the worker profit from the employment, an unpaid deal may be deemed unfair, even though both you and the boss may be content with it (for instance, you may be willing to serve even on an informal basis in an organization to gain job expertise).

“Does volunteer work count as employment?” The Department of Labor answers this question.

The Department of Labor takes a number of variables into account when determining whether someone is a legitimate volunteer participating in “ordinary volunteerism.” There isn’t just one decisive aspect. Among the elements are:

  • Is the organization receiving the volunteer’s services a nonprofit?
  • Does the activity fall short of a full-time job?
  • Are the services provided voluntarily, free from force or pressure?
  • Are the tasks of this kind generally related to volunteer work?
  • Has the volunteer taken the role of regular employees?
  • Does the organization to which the employee is rendering services offer any benefits to the employee?

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