A r c h i v e d  I n f o r m a t i o n

NonCitizens

Federal laws prohibit the employment of aliens not authorized to work in the United States. These immigration laws make it unlawful for one to either

• hire, recruit, or refer for a fee an unauthorized alien for employment in the United States; or
• hire for employment an individual without obtaining proof of citizenship or authorization to work.

Congress enacted these laws in response to concerns that employers were utilizing unauthorized aliens to replace United States citizens in paid jobs. Generally, because true volunteers pose no threat of competition to the labor force, these immigration laws should not, under most circumstances, apply to volunteer service. Volunteers who mimic or threaten the paid labor force are a very different matter. When a service organization assigns a volunteer to a task that displaces or substitutes for a paid worker, or when the task constitutes the same work as performed by a paid worker, the organization runs the risk of invoking immigration law coverage. If the volunteer loses his or her "volunteer" status by competing with members of the paid work force, he or she poses the type of threat that the immigration laws were designed to prevent.

The applicability of immigration employment restrictions also depends greatly upon whether or not the intended worker will receive compensation for his or her services. The Immigration and Naturalization Service of the U.S. Department of Justice has issued regulations that explain, define and help administer the immigration employment statutes. These regulations recognize compensation as a significant factor in determining whether an employment relationship falls under immigration law coverage. For example, the regulations define the term hire to mean "the actual commencement of employment of an employee for wages or other remuneration." The term employee is defined as "an individual who provides services or labor for an employer for wages or other remuneration." Compensation therefore, no matter how small, can transform a volunteer arrangement into an employment situation. An organization that engages an individual for pure volunteer service, without any exchange of compensation, should arguably not be required to reject an offer of service or to verify the volunteer's citizen status. If the organization offers any type of remuneration, perhaps even including insignificant items such as travel expenses, meals or coffee and doughnuts, it may consequently trigger an obligation to comply with immigration employment restrictions and requirements.

Service organizations that receive federal funding or funding from other public sources may be subject to eligibility restrictions or citizenship verification requirements independently imposed by their contracts or grants. For example, in the AmeriCorps program eligibility is restricted to individuals who are U.S. Citizens, U.S. nationals or lawful permanent resident aliens of the United States. Nonprofit entities should therefore be sure to ascertain their verification and hiring obligations before engaging personnel to participate in a service project.

[Labor Unions]

[Conclusion]