Hiring Volunteer Interns: International Students And Legal Compliance

International students in the US on F-1 and J-1 visas are eligible to work under certain conditions. For instance, F-1 students are eligible for CPT and OPT, while J-1 students are eligible for up to 18 months of work authorization. However, international students must be aware of the regulations surrounding employment and volunteer work to avoid violating their visa status. While volunteer work is generally permitted for F-1 and J-1 students, unpaid internships may be considered unauthorized employment if they do not meet the criteria established by the US Department of Labor (DOL). The DOL has been rigorously investigating unpaid internship programs to determine if they qualify as volunteer work or if they should be compensated under Wage and Hour laws. As such, it is crucial for international students to understand the rules and criteria to ensure they do not inadvertently violate their immigration status by engaging in an unpaid internship.

F-1 and J-1 students can volunteer without work authorization

To be considered a volunteer, the work performed must meet the following criteria: the volunteer cannot displace a genuine employee, and the services provided by the volunteer should not be the same services for which they were previously paid or expect to be paid for in the future. Services are performed for a non-profit charity, and the work is charitable in nature. Services are performed for a state or local government agency, and there is a civic purpose to the work.

The US Department of Labor has created laws to ensure that employment that should be paid is not done for free. This is to protect jobs for US citizens and prevent the exploitation of workers. For example, an unpaid arrangement may be considered unfair if the work is normally performed by a paid person, and both the employer and employee benefit from the employment.

F-1 and J-1 students are advised to seek work authorization for unpaid internships, as these are primarily offered by the private sector and related to the intern's major field of study. The Department of Labor's "Primary Beneficiary Test" can be used to determine whether an unpaid internship is considered employment. If an internship is considered employment, then the student must be "'employment-authorized' to undertake it.

In summary, F-1 and J-1 students can volunteer without work authorization, but they must be cautious that their activities meet the definition of volunteering and are not considered unpaid employment.

Unpaid internships are not usually classed as volunteer activity

The U.S. Department of Labor (DOL) is actively investigating "unpaid internship" programs to determine whether they are correctly classified as "volunteer work" under the law or whether they should be compensated under Wage and Hour laws. The DOL's rules on unpaid internships are not new, but the department has recently started prioritizing their enforcement.

Unpaid internships do not usually qualify as "volunteer" activity. Internships, whether paid or unpaid, are primarily offered by the private sector and are related to the intern's major field of study. The DOL is concerned with protecting jobs for U.S. citizens and preventing the exploitation of workers. They have created laws to ensure that employment that should be paid is not done for free. While some employers and interns may be happy with an unpaid arrangement, this may be considered an unfair practice.

The distinction between volunteering and an unpaid internship is important, especially for international students. If an internship is correctly classified as "unpaid" under DOL rules, it is not considered "employment," and therefore does not require the international student to have "employment authorization." However, if an unpaid internship is deemed to be a paid position under DOL rules, the student must have "employment authorization" to undertake the internship legally. Failure to obtain proper work authorization may result in violating immigration status, risking deportation, and facing difficulties in future visa applications.

To be classified as unpaid volunteers, trainees must meet all six criteria as outlined by the DOL:

• The training is similar to that provided in a vocational school, even if it includes the actual operation of the employer's facilities.
• The employer providing the training does not benefit immediately from the trainees' activities and may occasionally have their operations impeded.
• The trainees are not necessarily entitled to a job after completing the training.
• Both the employer and the trainees understand that the trainees are not entitled to wages for the training.

International students may need work authorization for unpaid work

The US Department of Labor (DOL) is actively investigating "unpaid internship" programs to determine whether interns are correctly categorised as volunteers or if they should be considered employees under Wage and Hour laws. If an internship is correctly designated as "unpaid" and considered "volunteer work", it does not require work authorisation and international students can take part in these internships without needing employment authorisation.

However, if the internship should have been a paid position, the student must have work authorisation. Failure to do so could result in the student violating their immigration status and risking deportation. Therefore, it is important for international students, employers, and career services professionals to be aware of the rules regarding unpaid internships.

To be correctly classified as an unpaid volunteer, the internship must meet all six of the following criteria:

• The training is similar to that which would be given in a vocational school, even if it includes the actual operation of the employer's facilities.
• The employer does not gain any immediate advantage from the intern's activities, and their operations may even be impeded.
• The intern is not necessarily entitled to a job after the internship ends.
• The employer and intern both understand that the intern is not entitled to wages for their time spent in training.
• The intern is not coerced or pressured in any way into taking the internship.
• The intern is not performing the same services for which they were previously paid or expect to be hired and paid for in the future.

It is important to note that volunteering is different from engaging in an unpaid internship. Volunteering refers to donating time to an organisation with charitable or humanitarian objectives without remuneration. Unpaid internships, on the other hand, are primarily offered by the private sector and are related to the intern's major field of study.

F-1 and J-1 students are allowed to engage in volunteer work as long as it meets the criteria for volunteer work. Examples of acceptable volunteer work include volunteering at a homeless shelter, charitable food pantry, or the American Red Cross.

Employers must document if they turn down American applicants for permanent roles

For international students in the US, internships and volunteer work are subject to a variety of rules and regulations. The US Department of Labor (DOL) is currently prioritizing the investigation of "unpaid internship" programs to determine if the work performed is properly "volunteer" work under the law or if it qualifies as employment and is therefore subject to Wage and Hour laws.

International students on F-1 or J-1 visas are eligible for both CPT and OPT, with some restrictions. Students on F-1 visas can engage in CPT before finishing their studies, as well as 12 months of OPT, but those who work full-time on CPT for a year or more are not eligible for OPT. J-1 visa holders are eligible for up to 18 months of work authorization, called academic training, and some participants are allowed to work part-time during their academic program.

F-1 and J-1 students are free to engage in volunteer work, but it must meet certain criteria. For example, volunteering at a local homeless shelter or for a charitable organization is permitted, but internships, even if unpaid, do not usually qualify as "volunteer" activity. Unpaid internships may still be considered employment, and international students engaging in them may need proper F-1 or J-1 work authorization.

In terms of hiring international students, employers are not required to document that a qualified American citizen was not turned down for a role if the successful applicant is working under an F-1, J-1, or H-1B visa. However, if an employer wishes to hire a foreign citizen on a permanent basis and sponsor them for permanent resident status ("green card"), they must document that they did not turn down a qualified American applicant for the position.

To summarize, when hiring international students as interns or volunteers, employers must be aware of the applicable laws and regulations, including the potential need for work authorization and the distinction between internships and volunteer work. Additionally, when hiring foreign citizens for permanent roles, employers must document if they turn down qualified American applicants.

Practical training is a benefit of the F-1 visa

F-1 students can apply for up to 12 months of OPT authorization before or after completing their academic studies. However, all periods of pre-completion OPT will be deducted from the available period of post-completion OPT. Students can work up to 20 hours per week during the pre-completion OPT while school is in session and full-time when school is not in session. For post-completion OPT, students must work at least 20 hours per week part-time or full-time.

If an F-1 student has already received one year of full-time pre-completion OPT, they will not be entitled to any period of post-completion OPT. Additionally, students who work full-time on CPT for one year or more are not eligible for OPT. F-1 students who have earned a degree in certain STEM fields may apply for a 24-month extension of their post-completion OPT if they meet specific requirements, such as being employed by an employer enrolled in the E-Verify program.

It is important to note that F-1 students must comply with all requirements to maintain their student status, and working on a terminated EAD authorization is not permitted. Violating the terms of their visa can result in serious consequences, including removal from the country and difficulties in future visa applications.

Frequently asked questions