What is work/employment?

[melus 19]

I want to preface this by stating that this has nothing to do with my own status. I'm just interested.

 

A couple of weeks ago there was a thread about a student who was denied access to the US because CBP found texs on his phone showing that he was working with a friend, though he says unpaid. This made me think. What exactly is employment/work? I can think of many grey areas. These are a couple I've thought of:

 

1. Helping a friend with anything, including things like moving house
2. Volunteering. There is no payment here, but you're working. What happens if you don't get paid but you get a free meal for example?
3. Let's say you're about to go out of status. Can you take paid leave, or unpaid leave? Both you're technically still 'employed'
4. Same as 3, but now let's say you go back to your home country and work remote. You're still 'employed' and paid in the US, but working from another country temporarily.
5. Other way around. You're employed in the UK and travel to the US for a couple of weeks. You go to your companies office in the US to give a 30 minute presentation. That's work right?
6. Actually anytime you go into the US for 'business' is that not work?
7. Let's say I'm a freelancer coder. I have a contract with a UK company. I travel to the US on holiday but need to change something on the website. I log in from the US to make that change. Is this work?
8. Let's say you're out of status, but sell something on ebay. Is this work as you've made money. Does it matter if the item is an old couch, or something original you've made?

 

I can think of many more situations. What's the general stance here?

Edited March 2, 2020 by melus

[Crazy Cat 41,845]

My opinion....You are over-thinking this.......In my humble opinion, unauthorized work is doing a task which a person, who is authorized to work, could have been employed doing .  In addition, it deals with tasks being done while physically inside the US.....just my opinion.

 

Babysitting included.......

[Boiler 45,486]

I agree you need to be in the US, and like many many things if the VJ unfriendly word want to get you they always can, I am pretty sure the first time I visited the US I did nothing the could be misconstrued but on other occasions? Not so sure.

 

They are obviously more interested in people clearly abusing their privileges.

[LilyKins 121]

I'm on my F-1, which has very strict expectations with regard to work. I volunteer as a first responder in my US community, and have done so for the past year. My DSO was hesitant as she said this could be misinterpreted as "work", however what swayed her is that my entire service is volunteer. Only the administrative staff is paid (the directors), no general members are paid. 

 

That said, I've had to be very careful not to accept any promotions to officer (as they're offered an annual stipend, which they could turn down, but this was still cutting it too close for me) and I also had to be careful to not sign up for shifts that are "paid" -- occasionally the local high school would offer the crew a $50 payment for football game coverage, for example. 

 

I agree that it's a grey area thats open to interpretation, but it can be simplified to a few very black and white questions: "were you paid for your services?", "would any other person in your exact position be paid for the same services?". If the answer is yes to either, I'd say it's work.

[melus 19]

Thanks LilyKins, I can see how it can easily turn into 'work' by mistake. As you said you've turned down the stipend, but I could easily see accepting a meal or a gift as part of helping out, and that could in turn be perceived as payment. I know at work we have to be very careful about accepting any gift, even dinner, that breaches something like $100 as that can be considered a bribe even if no-one thought of it like so.

[LilyKins 121]

2 hours ago, melus said:

Thanks LilyKins, I can see how it can easily turn into 'work' by mistake. As you said you've turned down the stipend, but I could easily see accepting a meal or a gift as part of helping out, and that could in turn be perceived as payment. I know at work we have to be very careful about accepting any gift, even dinner, that breaches something like $100 as that can be considered a bribe even if no-one thought of it like so.

I actually chose to respectfully refuse the promotion entirely, as I didn't want it to be misinterpreted as taking that "job" away from a USC. Though anybody has the option to turn down the stipend, I looked at it from the perspective of a USC who could have earned that stipend rather than me accepting the position and turning the stipend down. 

 

I think the work restrictions in general are intended to protect the jobs of USCs, and to protect foreigners from being taken advantage of due to their non-immigrant status.

 

That said, yes it can be hugely frustrating to not be allowed to work. The F-1 does allow for students to accept employment on campus up to 20hrs per week, and 40hrs per week during school holidays (the work must still be on campus though). I pursued this route at both institutions I attended. The schools have found loopholes, however, through work study. Work study is typically part of an American student's federal aid package, meaning that many on-campus jobs (campus bookstore, cafeteria, library, etc.) are reserved for work study students. This makes them inaccessible for international students.

 

Ultimately, I think it's at the discretion of the CO or CBP officer. I stayed with a friend of mine's family for two months while in between housing. They have children, who were in school or daycare all day, and the parents were always home when the children were. I had mostly evening classes so I wasn't always home when the children were awake in the evenings. Could this be interpreted as nannying or babysitting? Not in my opinion, as I was not in any way responsible for the children's care, but I'm sure a CO or CBP officer could make the argument that it was, if they were so inclined. 

[Boiler 45,486]

https://www.thesun.co.uk/fabulous/11052832/strip-searched-jail-deported-america-19th-birthday-visa/

 

A TERRIFIED British teen was strip-searched and thrown in an American jail, after accidentally filling out the wrong visa.

Student Rebecca Leighton, from Cirencester, Gloucestershire, spent months saving for the £3,000 trip to Texas, but ended up being deported on her 19th birthday after getting a tourist visa for her volunteering trip.

[melus 19]

That's an interesting article. But I think that's inline with what I posted before. Receiving board and food is technically 'payment'

[LilyKins 121]

"She had planned to go on the 'cowboy vacation' at Eagle Pass with her ex-boyfriend, getting free food and accommodation in exchange for helping out with the animals at the ranch, before travelling around the States."

 

That's where it crosses the line into "work", IMO. A pre-arranged agreement wherein they are providing a service (taking care of the animals) and receiving some kind of benefit (free food and accommodation) in return.

[LilyKins 121]

https://www.workaway.info/en/info/how-it-works/workawayer

 

This is actually a scary website.. it states that people can find these types of "experiences" and "travel like a local" but do not talk about work regulations or restrictions. I'm not sure about other countries -- maybe the USA has particularly strict regulations regarding a "working holiday" -- but this seems sadly misleading to me.

[Boiler 45,486]

You are solely responsible for complying with the relevant rules and laws in your jurisdiction (if any) especially with regard to your visas. 

 

I actually had some involvement with this site, but not using foreigners. The visa aspect did occur to me, maybe suited to J1's as far as the US is concerned but they operate worldwide.

[geowrian 22,337]

6 hours ago, melus said:

A couple of weeks ago there was a thread about a student who was denied access to the US because CBP found texs on his phone showing that he was working with a friend, though he says unpaid. This made me think. What exactly is employment/work? I can think of many grey areas. These are a couple I've thought of:

1. Helping a friend with anything, including things like moving house
2. Volunteering. There is no payment here, but you're working. What happens if you don't get paid but you get a free meal for example?
3. Let's say you're about to go out of status. Can you take paid leave, or unpaid leave? Both you're technically still 'employed'
4. Same as 3, but now let's say you go back to your home country and work remote. You're still 'employed' and paid in the US, but working from another country temporarily.
5. Other way around. You're employed in the UK and travel to the US for a couple of weeks. You go to your companies office in the US to give a 30 minute presentation. That's work right?
6. Actually anytime you go into the US for 'business' is that not work?
7. Let's say I'm a freelancer coder. I have a contract with a UK company. I travel to the US on holiday but need to change something on the website. I log in from the US to make that change. Is this work?
8. Let's say you're out of status, but sell something on ebay. Is this work as you've made money. Does it matter if the item is an old couch, or something original you've made?

 

I can think of many more situations. What's the general stance here?

Whether in status or not, an activity is either work or not. What matters is if one is authorized to perform an activity.

I won't go into every example as it certainly can be a blurry line sometimes. That said, anything "blurry" is something I would generally avoid as suspicion is all they really need.

 

3) Ignore the status part...it doesn't matter. Being employed on paper is not really the issue. Unauthorized work is the issue.

4) Work performed while physically outside the US is not an immigration issue. You have no US status for which to violate anyway.

5) A presentation would generally fall within the activities permitted on B-1 status. Most often people are granted a B-1/B-2 visa, not specifically one or the other.

6) Business activities and work are not necessarily the same thing. Lookup what is allowed on a B-1 visa for some examples/guidelines. https://www.uscis.gov/working-united-states/temporary-visitors-business/b-1-temporary-business-visitor. If it falls on that and you have B-1 or B-1/B-2 status, it's not an issue.

 

8: Ignore the status part again. If one is selling their own property that was obtained for personal use, then I doubt it would be considered work. Earning income is not prohibited...work is.

If you were purchasing items with the intent to resell them, then that crosses over into self-employment and would be more clearly a violation of status.