Short Answer
In all likelihood there is no legal risk to a U.S. 501(c)(3) non-profit associated with receiving in-kind volunteer assistance of the kind described or any other volunteer personal services from abroad or from someone who is not a U.S. citizen.
In a likelihood, this policy arises from the non-profit's misunderstanding of the law in a way that doesn't require expensive specialist technical legal knowledge to understand.
But, just because a non-profit is not required by law to impose these kinds of restrictions even though it thinks (mistakenly) that it is, the only solution is to educated the non-profit otherwise, which could involve a difficult struggle in the inner governance of the non-profit, even though it might be possible to correct with a letter directed to just the right person in the organization.
Long Anxwer
I suspect that the true statute that generated the belief that there was a potential legal issue here that was too expensive to investigate is the material support for terrorism statute (and incidentally, not actually primarily under the Patriot Act). As the U.S. Justice Department explains (the reference is dated and may have been since relocated to a new statute, however):
The Antiterrorism and Effective Death Penalty Act of 1996 gave the
Secretary of State authority to designate foreign terrorist
organizations whose terrorist activity threatens the security of
United States nationals or the national defense, foreign relations or
economic interests of the United States. See Pub. L. 104-132, § 302,
110 Stat. 1214, 1248. See also section 219 of the Immigration and
Nationality Act (8 U.S.C. § 1189).
The Antiterrorism Act also created 18 U.S.C. § 2339B, which makes it
unlawful, within the United States, or for any person who is subject
to the jurisdiction of the United States anywhere, to knowingly
provide material support to a foreign terrorist organization that has
been designated by the Secretary of State. See Pub. L. 104-132, § 303,
110 Stat. 1214, 1250.
The existing laws governing material support for terrorism were strengthened and relocated to the USA Patriot Act in October of 2001.
The difficulty is that quite of few of the non-governmental organizations designated by the Secretary of State as terrorist organizations, especially in the Middle East and the Islamic world, a broad political movements that seek change on multiple fronts: plain vanilla charitable work, political action in the nature of a political party or political action committee, and direct paramilitary action that the Secretary of State classifies as terrorism.
Determining which organizations are currently designated terrorist organizations by the Secretary of State is not nearly as easy as it should be for a statute that imposes serious criminal liability.
So, there is a risk that someone providing ordinary, unexceptional support for charity work by one of these organizations could be found to have committed the crime of providing material support for terrorism.
A memo from the United Way of Houston (not yet updated to reflect the 2020 adoption of the USA Freedom Act) sheds more light on the nature of the concern with citations to legal authorities:
EXECUTIVE SUMMARY
To ensure that local United Way member organizations (“Members”)
comply with heightened national security concerns about providing
financial or other “material support or resources” to terrorist
organizations, the Office of General Counsel recommends that Members
(at the minimum) (bold emphasis mine):
Screen all agencies receiving funds (“Funded Agencies”) against federal terrorism “watch lists” prior to engaging in dealings with
them. Federal law prohibits transactions with all persons and
organizations on these lists. As these lists are updated from time to
time, we provide Internet links to the lists maintained by various
federal departments and agencies.
Obtain certifications from Funded Agencies that they are not terrorists or terrorist organizations and do not knowingly provide any
kind of support to such persons or organizations. A model form for
this purpose is attached for use by Members.
Provide a certificate to partnering corporations (“Donors”) who request one, stating that the Member does not, and will not knowingly,
apply donated funds so as to provide any kind of support to terrorists
or terrorist organizations. A model form for this purpose is also
attached for use by Members.
These steps are prudent in light of the criminal and civil liability
that United Way of America, Members and Donors may face if any of them
knowingly deal with or provide material support or resources to
terrorists or terrorist organizations, as well as the possible loss of
tax exempt status if such support leads to designation of the Member
or Donor as a terrorist organization or addition of that Member or
Donor to a federal “watch list.”
B. POST 9/11
In response to the September 11th attacks, the federal government has
instituted and strengthened several new and existing measures to
combat terrorism: (i) Executive Order 13224 and related Treasury and
State Department Regulations; (ii) IRS and Treasury Department
guidelines; and (iii) the USA Patriot Act.
II. LEGAL MEASURES
A. Executive Order 13224 and related Treasury and State Department
Regulations Executive Order 13224 carries the force of law and
prohibits transactions with individuals and organizations considered
by the executive branch of the federal government to be associated
with terrorism. There are various statutes that support the
directives in Executive Order 13224, including the International
Emergency Economic Powers Act (as amended by the Patriot Act) which
permits the executive branch to freeze and confiscate assets
controlled by or in the possession of these entities.
There are several lists of persons and organizations that have been
designated as terrorists or terrorist organizations, and each of them
should be checked to ensure that Members are not dealing with such a
person. The lists are:
• The list of persons and entities designated under Executive Order
13224 (at
ttp://www.treas.gov/offices/enforcement/ofac/sanctions/t11ter.pdf).
• The Treasury Department’s “master list” of specially designated
nationals and blocked persons (at
http://www.treas.gov/offices/enforcement/ofac/sdn/).
• The State Department’s list of foreign terrorist organizations (at
http://www.state.gov/s/ct/c4291.htm).
Each of these lists should be checked by Members, even though some
persons or organizations may appear on more than one list. In
addition, these lists change over time, so Members should have in
place procedures for keeping up to date with such changes.
B. IRS AND TREASURY GUIDELINES
The U.S. Tax Code, Treasury Regulations adopted thereunder, and
various rulings of the U.S. Internal Revenue Service generally
prohibit the diversion of charitable assets to any non-charitable
purpose. The material or financial support of terrorism is, of course,
prohibited. Violation of these laws invites the risk of revocation of
an organization’s tax-exempt status. In 2003, Congress adopted an
amendment to the Tax Code providing for the automatic, revocation of
tax-exempt status for an organization designated as a terrorist
organization under the Patriot Act or added to any of the relevant
U.S. terrorist watch lists.
The Treasury Department also issued the Voluntary Treasury Guidelines
in effort to guide non-profits and grantmakers in their compliance
with the Executive Order and Patriot Act. The Voluntary Treasury
Guidelines consist of four parts: (i) governance; (ii) disclosure and
transparency in governance and finances; (iii) financial practices and
accountability; and (iv) anti-terrorist financing procedures. The
Voluntary Treasury Guidelines are voluntary; and do not have the force
of law, but outline best practices and anti-terrorist financing
compliance program for non-profits and grantmakers. The Voluntary
Treasury Guidelines propose that internationally active foundations
and non-profits implement compliance programs similar to those already
required of private institutions by the Patriot Act and Bank Secrecy
Act. However such compliance programs are onerous and would require an
organization to conduct extensive due diligence of all entities with
which it contracts, including vendors, financial institutions,
grantees and partners.
C. USA PATRIOT ACT
In October 2001, President Bush passed an act entitled Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism, more commonly known as the USA
Patriot Act (“Patriot Act”). President Bush passed the Patriot Act
shortly after the September 11th terrorist attacks in order to
strengthen the Federal government’s ability to combat terrorism. The
Patriot Act is very broad sweeping, thereby impacting many other
statutory regulations. As a result of the increasing number of Donor
requests for our Members to certify compliance with the Patriot Act,
we must ourselves examine the Patriot Act and how we are impacted by
it.
(i) What Does the Patriot Act Require of Non-Profits?
As applied, the Patriot Act is broad and will require specific changes
to the way a non-profit conducts business. Importantly, the Patriot
Act expanded certain provisions in existing law that have been
interpreted to impact non-profits because they create criminal and
civil liability for an individual or an entity that provides financial
or other “material support or resources” to terrorists.
The U.S. government has shown a willingness to pursue nonprofits under
the Patriot Act for providing material support to terrorists or
terrorist organizations.
It has taken action against several Muslim charities that may have had
dealings with terrorists or terrorist organizations.
(ii) Criminal Liability Defined - “material support or resources”
Criminal (and civil) liability may be imposed for knowingly providing
“material support or resources” to terrorists and foreign terrorist
organizations. The key term in the legislation is “material support or
resources,” which is defined broadly as: currency or monetary
instruments or financial securities, financial services, lodging,
training, expert advice or assistance, safehouses, false documentation
or identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel transportation, and other
physical assets, except medicine or religious materials. 18 U.S.C.
2339A(b) (as amended by section 805 of the Patriot Act).
Penalties include substantial fines and up to 15 years imprisonment.
In 2002, federal law was also expanded to include the criminalization
of financing terrorism. An individual or organization may be punished
for willfully providing or collecting funds with the intention that
the funds be used to carry out acts of terrorism, or for one who
knowingly conceals the source of funds used to carry out acts of
terrorism or to support foreign terrorist organizations (“FTO’s”). . . .
As with Executive Order 13224, an important means of avoiding criminal
liability under the “material support” provision is to do some basic
research on Funded Agencies prior to making a grant to ensure that
they are not on the federal “watch lists.” It is also worthwhile to
obtain certifications from Funded Agencies that they are not linked
with terrorists or terrorist organizations.
(iii) Civil Liability
Non-profits and grantmakers should also be concerned with potential
civil liability should their assistance end up in the wrong hands.
Private parties are entitled to a specific cause of civil action
against those who provide material support for terrorism. The Patriot
Act specifically sets forth that a plaintiff can recover damages as a
result of an injury to his or her person, property or business by
reason of an act of terrorism, and such person, his or her heirs,
survivors may sue in the appropriate district court of the United
State and shall recover threefold the damages sustained, court costs
and attorney’s fees.
Further a plaintiff does not have to await the determination of a
criminal action before bringing a civil complaint.
The bottom line, again, is that the Patriot Act regulated material support of terrorism that was received from a U.S. agency. As far as I can tell, the concern that this could work in the other direction, with a non-U.S. citizen providing material support to a U.S. 501(c)(3) is unfounded.
Perhaps some nuance of the situation is omitted or lost in translation, and a citation to, or quote of, the language used by the non-profit might shed new light on the question. But as far as I can tell, this seems to be a case of someone being confused about the law, rather than a genuine legal concern for a U.S. non-profit.
Another possibility is that the concern relates to laws that are targeted at money laundering by foreign powers and at international sanctions directed at leaders in regimes like Syria who are believed to be associated with serious human rights or war crimes that aren't punished domestically.
The theory would presumably be that a restricted person could made tax deductible donations of property that is subject to civil or criminal forfeiture by the government (effectively a "fraudulent transfer") and could use the charitable tax deductions received to prevent a person who would otherwise owe U.S. taxes from doing so with money that wasn't theirs to give.
But, usually those statutes regulate financial and economic contributions to an organization or account by these individuals or organizations, and not to in-kind volunteer services of the type mentioned that don't involve money or property and don't give rise to a tax deductible contribution.
The logic of a rule not allowing a non-profit to receive money contributions from abroad doesn't apply to in-kind donations of personal services of individuals which don't give rise to a charitable tax deduction and can't transfer seizable assets of a foreign terrorist organization or sanctioned person.
If Osama bin Laden had done a reading of "A Christmas Carol" by Charles Dickens for a U.S. non-profit that provides recorded matter for the blind while he was alive, this would not have led to any civil or criminal liability for the U.S. non-profit. Intentional sanctions don't prohibit bad actors from engaging in providing personal services on a volunteer basis as a good deed with no economic effect.
So, it is barely conceivable, but possible, that this rule could arise from an over broad interpretation, given the purpose of the statute and the definitions of the terms used, of what a "contribution" to a domestic non-profit means.
