In general, if you do not have any separate non-immigrant work permission, you are not authorized to work in the U.S. until your EAD is approved. If you do not have separate work permission now such H-1B, TN, O-1 non-immigrant work permission, or an EAD based on Optional Practical Training etc., you are not authorized to work in the U.S. until your EAD is approved.
If the internship is volunteer, you may be able to start w/o an EAD. The fact that you would not be paid would not be enough to allow you to start w/o the EAD. The internship would need to be reviewed against FLSA guidelines to determine if it truly is a volunteer position or one that would normally be seen as employment.
The following test may be helpful in determining volunteer status:
(1) Are the services performed for civic, charitable or humanitarian purposes?
(2) Are the services entirely voluntary, with no direct or indirect pressure by the employer, with no promise of advancement and no penalty for not volunteering?
(3) Are the activities predominately for the individual's own benefit?
(4) Does the individual impair the employment opportunities of others by performing work that would otherwise be performed by regular, paid employees? Does the "volunteer" provide services that are the same as services provided by a paid?
(5) Is there no expectation of compensation either now or in the future for these services?
(6) Do the activities take place during the individual's regular working hours or scheduled overtime hours?
(7) Is the volunteer time insubstantial in relation to the individual's regular hours?
Other Factors the DOL May Consider:
In addition, the government and the employer should look at the economic reality of the arrangement:
¿ Does the individual depend on the employer for sustenance? Is a faculty or staff member providing the volunteer with "gifts" in the form of money or food?
¿ Does the employer gain a significant benefit from the "volunteer?" What is the nature of this benefit?
Every case is different. Your specific matter should be reviewed by an experienced attorney to determine your best course of action.
Regards,
Andrew M. Wilson, Esq.
Serotte Reich Wilson, LLP
www.srwlawyers.com
awilson@srwlawyers.com
Answered on Dec 29th, 2011 at 12:45 PM