For many couples, an international marriage begins with a K-1 fiancé(e) visa. Once your fiancé(e) has received their K-1 visa and arrived in the United States, you must marry within 90 days and then file your Adjustment of Status packet. For many couples, the next question is, “Now what? Is my fiancé(e) allowed to work or volunteer while we’re waiting?”
Although the K-1 visa does allow fiancé(e)s to apply for a temporary work authorization, known as an Employment Authorization Document (known as an “EAD”), in practice, it is almost impossible to exercise this right due to timing issues. An EAD based upon K-1 status is valid for the first 90 days in which the fiancé(e) is authorized to enter the U.S. in order to marry their U.S. citizen spouse. Your fiancé(e) cannot apply for an EAD until he or she has physically entered the U.S. on their K-1 visa. Because current processing time for an EAD is in the range of 90-180 days or more, it is extremely unlikely that your fiancé(e) will receive the EAD before their first 90 days in the U.S. have expired. Even if the EAD were somehow received within this timeframe, it would expire once 90 days had elapsed rendering it useless to perform any substantial duration of employment.
A fiancé(e) may also apply for an EAD at the same time their Adjustment of Status packet is filed. Currently, the EAD application (Form I-765) may be filed concurrently with the Adjustment of Status for no extra charge. However, for many applicants, the same timing problem due to long processing waits may mean that the EAD will not be approved until the Adjustment of Status marriage interview has been scheduled, again rendering the EAD application useless. Since there is no additional fee at this time, it is typically worthwhile to file the EAD application in hopes that it may be approved closer to the 90 day timeline, rather than more than six months that has become common. It is worth noting that United States Citizenship and Immigration Services (“USCIS”) has proposed changes to its fee structures to take effect in 2020 that would require applicants to pay a separate fee for Form I-765, at which time applicants will need to assess whether it is worth the added expense for an EAD which may not be received.
Without a valid EAD, a fiancé(e) awaiting his or her green card is not authorized to work in the United States, even as the spouse of a U.S. citizen. The question that follows for many then is whether a fiancé(e) is allowed to work without pay or volunteer.
Unfortunately, there is not a simple black and white answer to this question, and the answer depends on a variety of factors that need to be analyzed on a case by case basis. If you are in doubt about whether or not your fiancé(e) should begin any volunteer activity that might be considered “unauthorized work” for immigration purposes, your first step should be to consult with an immigration attorney to discuss the details about the volunteer work in question, and any other factors that might affect your case.
Immigration regulations state in broad terms that unauthorized work is not allowed based upon the underlying idea that unauthorized work by foreign nationals is detrimental and should be discouraged because it takes jobs away from authorized U.S. workers, and may drive down wages or benefits for U.S. workers. So anything that could be construed as “engaging in work” should be avoided. Volunteering or “interning” in a position that is typically paid could be interpreted as engaging in work because it is taking away a paid work position from an U.S. worker. A volunteer position which would result in additional professional training could also be problematic because this would result in a potential advantage over similarly situated U.S. workers. The bottom line is that if your fiancé(e) would be working without pay in a job that could otherwise be filled by an U.S. worker who would be paid, this could be considered unauthorized work and should be avoided, even if your fiancé(e) is not receiving any monetary payment.
Another frequent question that comes up is whether it is acceptable to “volunteer” in a position where your fiancé(e) will later be employed as a traditional employee once his or her work permit is received. Based upon the rationale above, it should be clear that this would constitute unauthorized work in the eyes of the U.S. government for immigration purposes, as this is a paid position being filled temporarily by a “volunteer.” Some people have also tried to “volunteer” in a position for which they would receive delayed compensation once their work authorization is received. Clearly, this is unauthorized work and is not allowed under immigration regulations.
If your fiancé(e) would be volunteering in a position where other volunteers are unpaid, or similar positions are unpaid, it is a position unrelated to their professional field, and it could not be considered additional training for their profession, then the volunteer work may be legal. For example, volunteering at a non-profit soup kitchen where other volunteers are unpaid, an animal shelter that uses unpaid volunteers to care for the animals, or a museum where other volunteers are retired or unpaid, would be scenarios that are most likely considered strictly volunteer work. If your fiancé(e) is trained as a nurse and “volunteers” in this capacity in a hospital, this would probably not be considered volunteer work since the position would typically be filled by a paid nurse worker, you would potentially be taking that position away from an U.S. worker, and gaining professional experience during your “volunteer” experience. A good rule to follow is to generally refrain from doing any volunteer work that is related to one’s area of professional training. Finally, if you and your fiancé(e) have any remaining doubts about whether the activity they want to do could be interpreted as unauthorized work, either consult with an attorney to discuss your situation, or simply refrain from that activity until your fiancé(e) receives their work authorization or green card.