Common visa misunderstandings have led to detainment.
W
henever someone arrives at the border of a foreign country, immigration officers are likely to ask them the purpose of their visit. Travelers are expected to answer this question truthfully, whether they are sightseeing, working, seeking healthcare, or visiting family.
Yet, there are instances where immigration law is so counter-intuitive” that even travelers who believe they are following the letter of the law may find themselves turned away at the border or taken into custody facing deportation, says Natasha Polukhtin, an immigration attorney and founder of Global Practice. This often happens when travelers fall into a gray area or don’t realize that immigration law defines terms differently than they expect.
Recently, several would-be visitors to the United States and Canada found that out the hard way. Becky Burke, a Welsh woman, spent time in the United States doing housework in exchange for accommodation. She then attempted to enter Canada, where she had a similar arrangement with another family. Canadian border officials turned her away because they determined she planned on working in Canada without a work visa, even though no money would exchange hands. When Burke tried to return to the United States, American immigration officials took her into custody because they determined that by helping a family with housework, she had been working illegally in the United States, even though she hadn’t earned a cent.
Continue Reading Article After Our Video
Recommended Fodor’s Video
Burke is not alone in finding herself in hot water due to mix-ups at the American border. German tattoo artist Jessica Brösche was taken into custody after she informed immigration officers she planned on inking a friend in California in exchange for hand-made clothing. Canadian Jasmine Mooney, an entrepreneur, and actress best known for her role in the American Pie movie franchise, was taken into custody after attempting to enter the United States with new paperwork after the United States revoked a previous work visa. German Lucas Sielaff was detained at the board after immigration officials accused him of violating the terms of his tourist visa while visiting his American fiancee, something he had previously done multiple times without incident.
Burke, Brösche, Mooney, and Sielaff have all brought attention to the horrendous conditions they and other detained migrants were forced to endure at Immigration and Customs Enforcement (ICE) facilities. Yet, the question remains how they wound up there in the first place when all believed they were entering the country legally, and none appear to have done any work in exchange for monetary compensation.
When does the U.S. require a work visa?
These detentions, and others, may have resulted from confusion over what constitutes work under immigration law. In the United States, and many other countries, a work visa may be required even if no money is exchanged.
That’s because, under U.S. immigration law, any activity that would normally be performed for pay is considered employment, regardless of whether the person is paid or not, Polukhtin explains. Activities like childcare, housework, housesitting, or pet sitting are all considered employment in the United States “even if performed without payment” or on a volunteer basis, she says. Moreover, “any activities performed in exchange for a thing of value, including room and board or other free accommodations, is typically considered employment,” under U.S immigration law, says Janie Sapon, an immigration attorney and founder of Sapon Immigration.
Moreover, “U.S. immigration law is very restrictive on who can obtain employment in the United States,” Polukhtin explains. Other than citizens and permanent residents, the only people who can legally work in the United States, whether they are earning money or not, are those “who specifically applied for and obtained employment authorization documents and work visa holders, provided that they can only work for the employer who sponsored them for a visa,” Polukhtin says. Working under a tourist visa is not permitted.
Sapon emphasizes that under U.S. immigration law, there are no exceptions for working for family or friends. Staying with a friend or family member to visit them or while sightseeing typically isn’t a problem. However, a non-citizen will likely need a work visa if they come to the United States to help a friend or family member with a newborn baby or water their plants while they are away, she explains.
Typically, you cannot get a work visa at the border if you realize you’ve made a mistake once you’ve arrived at your destination.
What about volunteering?
Visitors to the United States and elsewhere may need a work visa or other type of special visa even if they are volunteering. “Volunteering could be considered working if it is normally not seen as being for a charitable purpose,” explains Rehan Alimohammad, an immigration attorney and professor of practice at the University of Houston Law Center’s Immigration Clinic.
For example, trying to get around work visa requirements by saying you are volunteering to walk dogs or teaching would likely be considered work because these types of activities are normally done for pay.
However, “volunteering for a food bank would probably not require work authorization” since this type of work usually isn’t compensated, he says. To stay on the safe side, stick with humanitarian agencies or non-profit organizations when volunteering. It’s also recommended that you pay for your own accommodations, says Perri Edelman, an attorney at Perri Edelman Immigration Law.
Nevertheless, even if you are genuinely volunteering, you may still need a special type of visa. Depending on the nature of the volunteer activities, in the United States, volunteers sometimes need a B-1 visa. Other countries have their own requirements. For example, Italy has a volunteer visa that is distinct from both tourist and work visas, says Marco Permunian, an Italian immigration attorney.
What happens if you get caught?
Alimohammad explains that those attempting to enter the United States to work without proper work authorization can be denied entry, detained, and barred from re-entering the country. The same is true for any non-citizen who is caught working in the United States without a work visa. Importantly, “ignorance of the law is not a defense,” Alimohammad explains.
While it may be tempting to lie about the purpose of your visit if you think you may need a work visa, lying to a government official is a punishable offense. The consequences of lying about the purpose of your visit are similar to those who get caught working. You can be denied entry to the United States, detained, and permanently barred from entering the country again.
There are similar consequences for lying to immigration officials in other countries.
When do other countries require work visas?
Different countries define work differently, but the United States is not alone in having a broad definition of work. If you plan on doing anything other than sightseeing or visiting friends and family abroad, “it’s critical to check if you need a work visa,” says Aaron Silvers, an immigration and personal injury attorney at Schillings and Silvers.
Like the United States, many other countries consider pet-sitting, performing housework, and some volunteer activities to be work, whether or not you are getting paid. Also similar to the United States, any time “you’re trading services for compensation, including non-cash arrangements like free accommodation, there’s a good chance you legally need a work visa,” he explains.
Ideally, your employer or host would guide you through the process, Silvers says. However, employers may not always get it right. They may not realize they are considered employers under local immigration laws, or they may not understand the nuances of immigration law. This can have devastating consequences, Silvers says.
For example, a house-sitting company may argue that house-sitting is not work. Nevertheless, if an immigration official disagrees, they will have the final word, and the would-be house sitter will not be allowed into the country without a work visa.
“Ultimately, it’s up to each individual to determine whether or not they need a work visa” or another type of visa, Silvers says. Additionally, “Employers or hosts facilitating undeclared work may also face penalties,” so it’s in everyone’s best interests to ensure the right type of visa is in place, says Permunian.
If you aren’t sure whether or not you need a work visa, “don’t rely solely on online forums or personal anecdotes,” Silvers says. Regulations change over time, and what applies to one person may not apply to another depending on the details of their plans abroad, he explains. Instead, check the immigration website of the country you are visiting, Silvers suggests. The local consulate of the country you are visiting is also a good source of accurate information, Permunian explains.
Even better, “getting a quick consultation with an immigration lawyer can save you serious trouble down the road,” Silvers says. It’s also important to check the laws in each country you plan on visiting, says Afonoso Leitão, an immigration attorney in Portugal. “Each country has its own legal framework,” he explains, and the type of visa you need will vary based on the country, how long you intend to stay, and the specifics of what you intend to do. Given the potential consequences of arriving at a border with the wrong type of visa, “it’s not worth the risk” to leave your immigration status to chance, Silvers says.
