U.S. immigration laws bar foreign nationals from engaging in activities inconsistent with the purpose of their visa. Each visa is issued for a particular purpose, and visa holders are expected to spend the majority of their time engaged in the activities for which the visa was issued. That means even individuals who hold visas that grant specific work authorization should avoid activities outside the scope of employment authorized under their visa category. For immigration purposes “employment” generally refers to a relationship where an individual provides services or labor and is paid for these services, and payment can include housing, clothing, food, or other benefits. Accepting any kind of remuneration for services can result in a violation of visa status if done without work authorization. Even passive investments and volunteer work can be problematic if they become a central part of a foreign national’s life in the U.S.

By example:

Students: Many activities that students undertake in school are not considered employment, such as “working” to produce a campus newspaper or “working” on a new invention in an engineering class.

Volunteer work: Work authorization is not required for volunteer work. However, state labor and worker’s compensation laws generally do not allow someone to “volunteer” in a position that is usually paid. The federal government is concerned about unauthorized foreign workers taking jobs away from U.S. workers. Just because an employer is willing to allow a foreign national to volunteer does not mean that the activity has no risk for that individual’s visa status.

Self-employment: The Board of Immigration Appeals (BIA) has held that “employment” includes self-employment. Thus, running a business violates a foreign national’s status, absent work authorization. See Matter of Tong, 16 I. & N. Dec. 593 (BIA 1978), in which a student was running his own used car dealership.

Investments: A noncitizen can invest passively in the United States without work authorization. Visa holders may manage their own investments and may even purchase a running business, as long as they do not provide any labor or services and are not actively running the business.

Working in the United States online for a foreign company: This is not allowed. Any work done while in the United States, even if for a foreign company and even if paid to a foreign bank account, still counts as “employment” in the United States. Immigration laws regulate what someone does while physically in the United States, and do not apply if someone is physically out of the United States. This is one of the few bright line rules in this gray area.

Planning ahead to start a business: There is a chicken and egg problem with starting a new business without work authorization. You may need the business to sponsor the visa, but you cannot work for the business to get it started without a visa. Planning in advance is key.

Risk of doing it anyway: Clients often ask: Even if I am not work authorized, how would I get caught for doing some of the activities mentioned above? The risk is significant. Violation of a temporary visa can result in cancellation of the visa and the need to apply for any new visas at the U.S. consulate in the home country. The U.S. government can also find out about unauthorized work through tax returns (for example, if used to support a green card application), or through a resume or a sentence in a visa support letter that is not carefully reviewed. The U.S. government is also increasingly using the Internet to search for unauthorized work. If the business has a website or a web presence, the U.S. Citizenship and Immigration Services (USCIS) may think the foreign national is working without authorization. Similarly, a newspaper article or social media mention about an individual’s activities may cause potential problems.
In summary, there is no bright line to delineate what kind of activity constitutes “unauthorized” employment. The government would consider the following factors:
● Was the individual active in the investment or a startup company?
● Was the individual engaged in any “service” or “labor”?
● Was the activity inconsistent with the purposes of the person’s visa?
Although doing just a little work on the side may seem minor, there is no tolerance in U.S. immigration law.