Employment Authorization and Work Permits – Part 2

Another question that is closely related to “How do I get a Work Permit?” is “Is there any kind of work or activities that I can engage in to earn money without a work permit?” In other words, what really constitutes unauthorized employment in the United States? The answer to this question is very important to a foreign national who does not have employment authorization (a work permit) since a finding of unauthorized employment can lead to very severe consequences, including the initiation of removal (deportation) proceedings, expedited removal at the point of entry, denial of an application for adjustment of status or an immigrant visa, or denial of an application for a non-immigrant visa.

The short answer is that one should err on the side of caution, be on the safe side, and generally assume that almost every activity in which an individual performs labor or renders services for compensation or some type of remuneration will be considered employment for U.S. immigration purposes. In order to explain this further, perhaps it is easiest to start with a short explanation of activities that are allowed (not considered employment) and then conclude with a list and explanation of activities that are considered (unauthorized) employment.

Passive Investments are Permitted. It is well established that passive investments in the United States do NOT constitute unauthorized employment. This would be the case, for example, where someone invests in real estate, a business, or other financial instruments (such as stocks or bonds) without providing any labor or services. Understand that even with passive investments, if the individual becomes too actively involved in the management or participation of the business or investment, it could lead to a finding of unauthorized employment. For example, while it is OK for an individual to own a motel, he or she may not be actively involved in managing or running the business of the motel. Similarly, while it is OK for an individual to buy and hold shares of stock in a publicly traded company if he or she were to become a day trader, that could also lead to a finding of unauthorized employment. Again, the key here is that passive investments and activities are permitted.

Self Employment is Unauthorized Employment. As an extension of the above, it is also well-established law that an individual cannot get around a finding of unauthorized employment by simply claiming that they were self-employed, did not have an employer, and therefore could not be “employed.” This would include internet-based businesses, home businesses, buying and reselling goods or services. Also included would be remote developers of computer programs, apps, websites, and other technology.

Volunteering or Unpaid Work may be considered Unauthorized Employment. Even where an individual is not being compensated for services, volunteering or doing work for free may also be considered unauthorized employment where the individual is performing labor or services for which he or she would normally be paid or compensated.

Selling Goods or Creative Works. While it is normally not considered unauthorized employment if an individual sells personal property or possessions, it could rise to the level of unauthorized employment if that same individual were to sell goods or creative works that he or she has made for the purpose of selling for cash money. This would also apply to individuals who buy and then re-sell goods, creative works, or services of any kind.

U.S. Immigration laws can be very complicated and, in the immortal words of an Immigration Judge that I used to appear before in Arlington, Virginia … “Not very generous.” For these reasons, as stated above, individuals would be well advised to assume that most activities involving the providing of labor or services (whether or not in exchange for compensation) will be considered unauthorized employment which can lead to very severe Immigration consequences. When in doubt, one should seek the advice of an experienced Immigration Lawyer.

To schedule a consultation with South Florida Immigration Lawyer Sean D. Hummel to discuss employment authorization and your eligibility for a work permit, call (954) 385-3111 or e-mail:sean@hummelaw.com.