Ibrahim Gardner
International students in the US are often interested in freelancing to gain work experience and make extra money. However, they are subject to work authorization requirements that affect their ability to freelance. There are two work authorization options for international students: Curricular Practical Training (CPT) and Optional Practical Training (OPT). CPT cannot be used for freelance work, but OPT may be used for freelance work after the first year of school. Students on an F-1 visa can work on contracts after graduation, but they must meet certain criteria to maintain their visa status. Those who wish to work as independent contractors may be able to do so with an O-1 visa, which is reserved for aliens of extraordinary achievement.
Characteristics of international students being independent contractors
| Characteristics | Values |
|---|---|
| Visa type | O-1, F-1, or H-1B |
| Work authorization | Curricular Practical Training (CPT) or Optional Practical Training (OPT) |
| Work type | Contract jobs, freelance work, or self-employment |
| Work eligibility | Students must be able to afford living expenses and school costs before entering the US |
| Work duration | Limited length and scope |
| Work authorization body | U.S. Citizenship and Immigration Services (USCIS) |
| Work hours | Part-time (up to 20 hours a week) or full-time (up to 40 hours a week) |
| Work authorization duration | Valid for one year |
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What You'll Learn
Visa requirements for independent contractors
The O-1 visa is a common option for independent contractors or self-employed foreign nationals seeking to work in the United States. This visa, also known as a contract visa, does not require an employer-employee relationship, making it a flexible option. However, it is important to note that the O-1 visa has stringent requirements, and applicants must demonstrate extraordinary ability, achievement, or success in their field.
To obtain an O-1 visa as an independent contractor, individuals must meet specific criteria and submit their petition through a sponsor. The criteria for the O-1 visa are stringent, and applicants must demonstrate extraordinary ability, talent, or achievement in their field. This may include evidence of internationally recognized awards, published material, or membership in associations within their industry.
The O-1 visa has two subcategories: the O-1A and the O-1B. The O-1A is for individuals in fields such as science, arts, business, athletics, and education, while the O-1B is for those in the motion picture or television industry. It is worth noting that the O-1 visa must be filed by an agent or sponsor, and applicants cannot petition for themselves. This sponsor can be a US-based organization or agency, or a US employer, and the visa holder can only work through this sponsoring entity.
Another visa option for independent contractors is the H-1B visa, which allows foreign nationals to have an ownership interest in the petitioning entity. However, this visa generally requires a stronger employer-employee relationship, and petitioners must provide comprehensive contracts and detailed itineraries. The H-1B visa also has a statutory cap, and extensions beyond six years are limited.
It is important to note that the process of obtaining a visa as an independent contractor can be complex, and it is recommended to consult with an experienced immigration attorney to navigate the specific requirements and increase the chances of a successful application.
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Work authorization for international students
International students in the US on F1 visas are not allowed to pursue contract jobs or freelance work opportunities in their first year of school. However, they can participate in campus-related activities and get OPT to work on freelance or self-employment opportunities, as long as it's directly related to their field of study. The 12-month OPT extension of the F-1 visa allows students to work without being tied to a specific employer, but they must meet all other criteria for this visa, including:
- All work must relate to their field of study.
- They are not unemployed for more than 90 days.
- They must maintain their full-time student status when school is in session.
Curricular Practical Training (CPT) is another off-campus employment option for F1 students when the practical training is an integral part of the established curriculum or academic program. To qualify, the work experience must be required for their degree, or academic credit must be awarded. Prior authorization by the school's International Student Office and notification to the U.S. Citizenship and Immigration Service (USCIS) is required. The student must have been enrolled in school full-time for one year on valid F1 status (except for graduate programs that require immediate CPT). CPT authorization will specify whether the student is approved for part-time (20 hours per week or less) or full-time employment.
USCIS will authorize off-campus employment for F1 students only in cases of severe economic hardship occurring after a student's enrollment in an academic program and after the student has been in F1 status for at least one full academic year, or in emergent circumstances as defined by the Department of Homeland Security (DHS). Emergent circumstances include world events that cause severe economic hardship, such as natural disasters, wars, military conflicts, and international financial crises.
For both F1 and M1 students, any off-campus training employment must be related to their area of study and authorized by the Designated School Official (DSO) and USCIS prior to starting work. DSO authorization is also required for internships with international organizations.
Independent contractors on O-1 visas are reserved for aliens of extraordinary achievement and must meet at least three out of eight evidentiary criteria. Their roles must be essential and unable to be carried out by a US worker. While their contract may not be directly under an employer, their income must be recorded under an officially regulated mode of payment, such as the 1099 form.
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Differences between freelancing and contracting
International independent contractors are non-US-based service providers who perform specific skills outside the usual scope of university activities. They are typically engaged for a project that is limited in scope and length and are paid a fixed rate per project. They are not considered employees and should not represent themselves as such.
Now, here are the key differences between freelancing and contracting:
Nature of Work
Freelancers typically work with multiple clients simultaneously, balancing short- and long-term projects based on the client's needs. They have the freedom to choose their work hours and work location, as long as they deliver by the agreed-upon deadline. They may work remotely and are responsible for ensuring they have the necessary equipment and licenses.
On the other hand, contractors usually work for a single client at a time, often on-site at the client's premises, and for a fixed length of time. They may have specific working hours and are more likely to have set working days.
Stability and Income
Freelancers may experience gaps between clients, which can make their income less steady and predictable. They have to actively pitch their services, which takes unpaid time. Contractors, on the other hand, may provide more stability in terms of income, as they are often hired for a specific period to fill a role.
Benefits
Freelancers are not provided benefits like healthcare or retirement planning by their clients. They are responsible for their own taxes and national insurance contributions. Contractors, similarly, are independent and are not entitled to employee benefits like pension contributions or sick pay. However, they may be able to negotiate lucrative daily rates due to the temporary nature of their work.
Autonomy
Freelancers have a high level of autonomy in their work and how they deliver it. Contractors also enjoy a significant degree of autonomy, but it may vary depending on the client's requirements. Contractors may have more frequent check-ins with the client and may need to adapt to specific working hours or locations stipulated in their contracts.
Skill Set
Both freelancers and contractors have specific skill sets, but contractors' skills tend to be broader and more position-based.
In conclusion, both freelancing and contracting offer flexibility and independence compared to traditional employment. The choice between the two depends on your skill set, desired level of autonomy, and preferences regarding the number of clients and work stability.
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How to apply for OPT
To apply for OPT, you must be enrolled as an F-1 student. Optional Practical Training (OPT) is temporary employment directly related to an F-1 student's major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before or after completing their academic studies.
Check your eligibility:
Before applying for OPT, ensure that you meet the eligibility requirements. You must be lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students.
Prepare the required documents:
You will need to submit various documents as part of your OPT application. This includes Form I-765, "Application for Employment Authorization," and Form I-20, which is used to update your student status and request OPT. Make sure you have the updated Form I-20 with the OPT recommendation before filing Form I-765. Additionally, you will need to submit unretouched photos that are not edited or digitally enhanced.
Submit your application within the specified timeframe:
The OPT application process has strict deadlines. You must file Form I-765 within 30 days after receiving the OPT recommendation from your Designated School Official (DSO). If you submit the form before receiving the recommendation or after the 30-day period, your application will be denied, and you will lose the application fee.
Maintain compliance with OPT requirements:
Once your OPT application is approved, remember that you must work at least 20 hours per week during your OPT period. Additionally, all OPT employment must be directly related to your major area of study. While on OPT, you are required to report any changes in your legal name, address, or employment status to your DSO in a timely manner.
Understand the limitations and restrictions:
It is important to note that the 12-month OPT extension of the F-1 visa allows you to work without a specific employer, but you must meet all other criteria, including ensuring that your work relates to your field of study and maintaining employment with no unemployment periods exceeding 90 days. Additionally, if you have already received one year of full-time pre-completion OPT, your post-completion OPT period will be reduced accordingly.
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Employment restrictions for F-1 students
F-1 students have several options for employment, but there are also restrictions in place. F-1 students can work on-campus, but this must be either at their school or for an educationally affiliated organisation. For example, if a school contracts with a food service company, an F-1 student can work for that company at school facilities but not at any of their off-campus locations. On-campus employment must not displace a US citizen or lawful permanent resident. F-1 students can work up to 20 hours per week while school is in session and full-time during school vacations.
F-1 students can also work as independent contractors, but only during their initial 12-month OPT period. This is a pathway to gaining hands-on experience in their field of study while staying compliant with immigration requirements. The work must be directly related to their academic field. For example, a journalism graduate could freelance as a writer, and a software engineering student could work as an independent contractor, developing apps.
There are other restrictions to be aware of. Students in their first 12 months of post-completion OPT work authorisation cannot be unemployed for more than 90 days. If an F-1 student finishes a program and starts another at the same campus, they may continue on-campus employment as long as they plan to enrol in the new program for the next term. Students must also report their work and receive a certification letter.
It is important to note that F-1 students cannot work as independent contractors on an H-1B visa. This is because the same employer-employee relationship standards apply as for the STEM OPT extension of the F-1 visa.
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Frequently asked questions
It depends on the type of visa the student holds. Students with an F-1 visa can work as independent contractors after the first year of school through Optional Practical Training (OPT). Students with an H-1B visa cannot work as independent contractors.
To work as an independent contractor on an F-1 visa, students must meet the following requirements:
- All work must relate to their field of study
- They are not unemployed for more than 90 days
- They do not work more than 20 hours per week during school and no more than 40 hours per week after graduation
To apply for OPT, students must submit the required paperwork to U.S. Citizenship and Immigration Services (USCIS) and their college. The application process can be started up to 90 days before the end of the first academic year.
Yes, all work must be related to the student's academic major. Additionally, students cannot work off-campus unless there is a severe economic hardship or emergent circumstance, as defined by the Department of Homeland Security (DHS).
