Although U.S. immigrations laws are complex and at times confusing, certain issues are quite clear: the employment authorization of foreign nationals in the United States is highly restricted. Foreign nationals are only authorized to work when they have been “accorded a nonimmigrant classification which authorizes employment” or have been “granted permission to engage in employment in accordance with the provisions” of the requisite regulations.[1]
With the election of President Trump, the priorities of the agencies involved in administering and managing immigration benefits (U.S. Citizenship & Immigration Services (USCIS), U.S. Immigration & Customs Enforcement (USICE), U.S. Customs & Border Protection (USCBP), and U.S. Department of State (DHS)) have changed and there is heightened scrutiny on enforcement. More recently, an issue gaining increased attention and enforcement is unauthorized employment, where a foreign national is lawfully admitted in a nonimmigrant classification, but violates the terms of his or her status by working. Two of the visa classifications we see experiencing this issue most often are individuals admitted under ESTA or in B-1 or B-2 status and F-1 students with optional practical training (OPT) or curricular practical training (CPT).
What is employment?
The USCIS defines employment as “any service or labor performed by an employee for an employer within the United States.”[2] An employee is defined as “an individual who provides services or labor for an employer for wages or other remuneration,” while an employer is defined as “a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration.”[3]
Moreover, the USCIS defines unauthorized employment as “any service or labor performed for an employer within the United States by a foreign national who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the foreign national’s employment authorization.”[4]
So what exactly does this mean? Although the definition of “employment” may change by State, generally, where an individual provides services or labor (which includes both physical labor and creative labor) and a wage or other remuneration (e.g., housing, food, or clothing) would normally be paid, employment is occurring.
ESTA/B-1 or B-2
Individuals who enter the United States under ESTA (Electronic System for Travel Authorization) or visa waiver or in B-1 or B-2 status are admitted to the United States for an initial period of up to 6 months as temporary visitors for business (B-1) or pleasure (B-2). Individuals admitted to the United States under visa waiver, B-1 or B-2 are prohibited from engaging in any employment in the United States.[5]
Individuals admitted as visitors for business are permitted to engage in activities that are not “gainful employment” such as: negotiating contracts, consulting with clients or business colleagues, making phone calls, or participating in conventions, conferences or seminars, to name a few. Such individuals may not receive a salary from a U.S. source. Moreover, while such individuals may invest passively in a business, they may not provide labor or services or actively run that business.[6]
Individuals who run afoul of this prohibition often include: individuals who enter the United States to manage a U.S. business (whether their own or owned by another entity) on a full-time basis; artists who enter the United States to create, exhibit and sell their work for commissions; and artists who enter the United States to perform as an actor or actress in a production or musicians on tour or other public performances.[7]
F-1
Individuals who enter the United States in F-1 (Academic Student) status are admitted temporarily to pursue a full course of study at an established institution of learning approved by the USICE in compliance with the Student and Exchange Visitor Information System (SEVIS) program. Such students are usually admitted for the “duration of status” or the time it usually takes to complete a program of study plus 60 days to prepare to depart from the United States, proceed to another educational level or to transfer to another institution.
Individuals who are admitted in F-1 status are eligible for employment for practical training under two programs: Optional Practical Training and Curricular Practical Training. In order to qualify for employment authorization under either program, the F-1 student must apply through the Designated School Officials (DSO), who authorize periods of OPT and CPT on the Form I-20.
Individuals who run afoul of these restrictions may include students who: commence employment before or continue employment after the periods authorized by USCIS in their employment authorization documents (EAD) or listed on their on I-20s; work for organizations not listed on the I-20 or in positions not related to their course of study; and work off campus during their first academic year.
Other Examples of Unauthorized Employment
Unauthorized employment may also include self-employment and “unpaid internships” or volunteer works if the position is one where the employer would normally pay a person for his or her services. For example, owning a franchise restaurant would not be unauthorized employment, however, managing the restaurant’s daily operations or “helping out when needed” to take orders, bus tables, etc., would be. Another example is having an intern “shadow” a manager, which is permissible until the manager has the intern prepare a report or conduct research.
Working in the United States, even on behalf of a foreign employer where the employee is paid through a foreign bank, would still constitute unauthorized employment because the services are being performed in the United States.
How would immigration find out?
In today’s society, where nearly every action is posted online with a photograph, video or tag, the immigration service has access to all information shared in the public domain. This means anything publicly shared on Facebook, Instagram and Twitter can be easily found by the immigration service. A google search of an employer or foreign national’s name can result in a treasure trove of evidence confirming unauthorized employment.
Moreover, tax filings by a corporation or individual may also disclose unauthorized employment.
While there have not been any official government statements, we have received reports from clients who have experienced difficulties where immigration or consular officials have reviewed their social media posts and have made findings of authorized employment.
What are the potential consequences of unauthorized employment?
There are many serious consequences when a foreign national has worked without lawful authorization. (1) Initiation of removal proceedings: Foreign nationals who violate their nonimmigrant status and fail to maintain the terms and conditions of their status are removable (deportable) from the United States if and when the immigration service becomes aware of the violation and initiates removal proceedings.[8] (2) Ineligibility for an extension and/or change of nonimmigrant status: A foreign national must maintain his or her status or otherwise abide by the terms of that status. Unauthorized employment is considered a per se failure to maintain status. Working without authorization makes a foreign national ineligible to change or extend his or her status in the United States.[9] (3) Cancellation of the visa: Individuals who enter the United States in ESTA and violate the terms and conditions of their entry by working without authorization are not eligible for future entries under ESTA or visa waiver. Such individuals must apply for a visa at a U.S. Embassy or Consulate abroad under INA §222(g). (4) Ineligibility for a nonimmigrant visa: A consular officer at a U.S. Embassy or Consulate abroad can deny a nonimmigrant visa application where a foreign national failed to maintain his or her nonimmigrant status by, for example, engaging in unauthorized employment or for misrepresentation on the nonimmigrant visa application by failing to disclose violations of previous nonimmigrant status.[10] (5) Ineligibility for adjustment of status: With limited exceptions, an individual who has ever engaged in unauthorized employment before or after filing an application for adjustment of status to lawful permanent resident is barred from adjusting status.[11]
Conclusion
While the immigration consequences of unlawful employment are clear, the line between what constitutes permissible activities versus unlawful employment is not. It is better to plan ahead and consult with an attorney before commencing such activities rather than suffer the wrath of the immigration service, which is not very forgiving. Accordingly, we would recommend that foreign nationals speak with an attorney in advance to identify whether the proposed activities would lead to a finding of unlawful employment and a status violation.
[1] 8 CFR §214.1(e)
[2] 8 CFR §274a.1(h)
[3] 8 CFR §274a.1(f) and (g)
[4] USCIS Policy Manual; https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter6.html
[5] 8 CFR §214.1(e)
[6] https://travel.state.gov/content/dam/visas/BusinessVisa%20Purpose%20Listings%20March%202014%20flier.pdf; https://fam.state.gov/fam/09FAM/09FAM040202.html
[7] 8 CFR §214.1(e)
[8] INA §237(a)(I)(C)(i)
[9] 8 CFR §214.1(e)
[10] INA §212(A)(6)(C)(I); See also 9 FAM 302.9-4 Misrepresentation and interpretation of misrepresentation under INA §212(A)(6)(C)(I)
[11] INA §245(c)(2) and (c)(8)