[Stink alert! We are about to venture into malodorous legalese. Hold your nose. The journey will be worth it.]
The relevant regulation, found at 8 CFR § Sec. 274a.1 (Definitions), provides:
(f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors . . .
(g) The term employer means a person or entity . . .who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor . . .
(h) The term employment means any service or labor performed by an employee for an employer within the United States . . .
(j) The term independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis. Factors to be considered in that determination include, but are not limited to, whether the individual or entity: supplies the tools or materials; makes services available to the general public; works for a number of clients at the same time; has an opportunity for profit or loss as a result of labor or services provided; invests in the facilities for work; directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done. . . (Bolding added.)
These definitions raise more questions than they answer. In the hypotheticals below, assuming that the individual in question has no legal right to engage in the specific actions noted, is the particular action prohibited "employment"?:
- Is a busker in a New York subway who does not solicit but accepts voluntary donations from passersby employed?
- Does it matter if the busker puts his hat, upside down in front of him, in case anyone wants to make a voluntary offering?
- Would an independent photographer, artist, architect or writer who produces a finished work for personal enjoyment be engaged in employment?
- What if the individual later decides to sell the work in the U.S. -- does the sale cause the individual to have engaged in employment?
- What about a professional knife-thrower's human target -- is (s)he employed when standing still as the knife approaches?
- What about an usher in the theatre who escorts patrons to their seats and is thus allowed to view the performance for free?
- Does it matter if the show is such a flop that the producers routinely give away free tickets?
- Are the legions of voluntary interns who receive valuable experience and college credit but no monetary payment employed?
2. The sale or rental of an asset?
- Is a female employed if she sells one of her eggs in the U.S.?
- How about a male who is paid for his sperm at a Los Angeles clinic -- is he employed?
- If the female was born abroad possessing the usual full complement of eggs, is her acquiescence for a fee in the removal of one or more eggs an act of employment?
- What about a male in the U.S. for several years, whose semen was presumably created while he lived here, engaging in employment when he is paid by the sperm bank?
- Does it matter if the sperm bank offers him a cup, directs him to fill it, leaves a copy of Playboy in the private donation room and pays him an honorarium -- is this employment?
3. U.S.-based "virtual" efforts (with servers located abroad and work saved "in the cloud")?
- What about a Silicon Valley blogger who accepts paid advertising -- employment, yes or no?
- What about a math genius living in Connecticut who accepts a prize to solve a puzzling theorem with his laptop -- employment?
4. The active management of an investment in the U.S.?
- How about the owner/manager of a motel -- employed?
- How about the owner of an optometry shop who gives eye exams and engages American optometrists to work with her -- employed?
5. The present exchange of promises assuring action in the future?
- What about the exchange of mutual promises - is it employment today if an employer promises to hire a worker and the worker agrees to render services for wages, with the work to begin next week?
- What if one of the parties reneges -- is it still employment as of the time when the promises were made?
6. The operation of a U.S. business that creates jobs for Americans?
- What about a full-time student who invents the next Facebook-type free app in his Harvard dorm room and hires software developers, knowing that some day an IPO will make him a billionaire -- is the present intention to profit in the future enough to constitute employment?
- What if other students, say, two twin brothers, gave the student inventor the idea for the app -- are they employed if they sue and recover damages or settlement proceeds for their idea -- is the payment for the idea employment?
- What if the free app requires users to agree to Terms of Service that make any valuable user-produced data, photos or designs the property of the student app inventor -- does the retention of ownership rights constitute "other remuneration"?
7. The payment for or receipt of valuable benefits?
- Which of the forgoing individuals or entities that make payment of money "employers" in the United States?
- Which of them must complete a Form I-9 (Employment Eligibility Verification) when they "hire" any of the foregoing "employee[s]" in the U.S.?
- Which of them are committing felonies for "harboring" an unauthorized worker (since the harboring statute includes employment as a prohibited act)?
- Which of the foregoing recipients of the noted benefits have failed to maintain lawful immigration status and therefore are ineligible for prosecutorial discretion and deferred action or are removable (deportable)?
- Which of these recipients of benefits are thereby ineligible to receive a green card through the adjustment of status process?
- Are any of the reasons for adjustment ineligibility "technical" in nature or not the "fault" of the individual (no-fault and technical reasons are forgiveness provisions that allow the grant of a green card even if the person is otherwise ineligible)?
My point is not to model a law school class by using the Socratic method and reductio ad absurdem arguments. Instead, it is to illustrate that the immigration regulations in their present form do not offer the guidance needed to cover many everyday (and some unusual) situations.
With so much riding on the correct interpretation, the government must take a hard look at the current, clearly inadequate regulations, and issue proposed rules that allow the public to comment on new, more transparent guidance. In the absence of new regulations, the immigration agencies -- U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement -- should follow the lead of IRS and offer a voluntary settlement program to businesses and individuals who seek to come back to the sunny side of the immigration law.
Angelo A. Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.