Ibrahim Gardner
International students in the United States on a nonimmigrant F-1 visa are required to fill out Form I-9 when they are hired for employment. This form is used to verify an individual's eligibility to work in the US and must be completed by both the employer and the employee. The employee must provide specific documents to establish their identity and employment authorization, while the employer is responsible for ensuring the accuracy of the information provided and maintaining the form for a specified period, typically three years after the date of hire. F-1 students must confirm their legal eligibility to work based on their immigration status and any restrictions tied to their visa.
| Characteristics | Values |
|---|---|
| Who needs to fill out Form I-9? | F-1 students in the United States on a nonimmigrant student visa, CPT and OPT students, interns (if the internship is compensated) |
| When does Form I-9 need to be filled out? | Within a few days of the employee's hire date |
| How long does an employer need to keep Form I-9 on file? | Usually three years after the date of hire or one year after the date of employment termination, whichever is later |
| What is the purpose of Form I-9? | Employment eligibility verification, confirming legal eligibility to work in the US based on immigration status and employment authorization |
| What documents are required for Form I-9? | Documents that establish identity and work authorization, such as a state driver's license (List B document) and Form I-94 indicating F-1 nonimmigrant status (List C #7) |
| Who completes Section 1 of Form I-9? | The employee |
| Who completes Section 2 of Form I-9? | The employer or an authorized representative |
| What happens if Form I-9 is not completed or retained properly? | Employers may face penalties |
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What You'll Learn
F-1 students must confirm their legal eligibility to work in the US
International students who are pursuing academic studies or language training programs are classified as F-1 nonimmigrants. To be eligible to work in the US, F-1 students must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate. Their school must also be authorized by the US government to accept foreign students.
F-1 students are not permitted to work off-campus during their first academic year, but they may accept on-campus employment, provided they meet certain conditions and restrictions. On-campus employment must be physically located on the school campus or at an off-campus location of an educationally affiliated organization. For instance, an F-1 student can work for a food service company contracted by their school, but only at school facilities, not at any of the company's off-campus locations.
After their first academic year, F-1 students may engage in three types of off-campus employment:
- Curricular Practical Training (CPT): CPT includes alternative work/study programs, internships, cooperative education, or other types of required practicums offered by employers through agreements with the student's school. CPT can be part-time or full-time, but working full-time for 12 months or more may make the student ineligible for Optional Practical Training (OPT).
- Optional Practical Training (OPT): After completing their degree, F-1 students may be authorized for up to 12 months of OPT. OPT provides practical training experience directly related to the student's major area of study. Students can work up to 20 hours per week during the school session and full-time when school is not in session.
- Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT): F-1 students may be eligible for off-campus work on a case-by-case basis due to special situations, such as severe economic hardship.
F-1 students must obtain authorization from their Designated School Official (DSO) to work off-campus. The DSO will issue Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status," which confirms the student's eligibility. F-1 students must then submit Form I-765, "Application for Employment Authorization," along with the required fee, to U.S. Citizenship and Immigration Services (USCIS) within 30 days.
Additionally, F-1 students must ensure that their supporting evidence for Form I-765 clearly demonstrates their eligibility. This includes providing a Form I-20 that is signed and endorsed by the DSO within the last 30 days. The DSO plays a crucial role in assisting students with the process and ensuring they follow the guidelines for off-campus employment.
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CPT and OPT students must understand the required documentation
For CPT students, work authorization is typically documented through Form I-20, endorsed by their Designated School Official (DSO), and their employment authorization can be further verified via a job offer letter. For OPT students, work authorization is documented by the Employment Authorization Document (EAD), which is issued by the USCIS. OPT students should select "A noncitizen authorized to work until" as their citizenship status on Form I-9, and they must enter the expiration date from their EAD card in the "Authorized to Work Until" field in Section 1.
Additionally, STEM OPT participants must be employed by an employer enrolled in E-Verify, the electronic employment verification system managed by USCIS. Any new employer during the STEM OPT period must also be enrolled in and compliant with E-Verify before the student begins work. STEM OPT students' Employment Authorization Documents are marked with the notation "STU: STEM OPT ONLY".
In terms of internships, an I-9 form is typically required if the internship provides compensation or other benefits that could be considered payment for services. Unremunerated interns or student trainees do not need to complete an I-9 form. Section 1 of Form I-9 must be provided by the employer to new hires on or before their first day, and it requires personal information from the employee, including their full legal name, address, and date of birth.
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Interns and their compensation
International students on an F-1 visa may be eligible for Curricular Practical Training (CPT), which includes internships, providing their Designated School Official (DSO) authorises it. CPT can be part-time or full-time, but working full-time for 12 months or more may make the student ineligible for Optional Practical Training (OPT).
Intern compensation is a complex issue that varies by industry, location, and company. Some internships are unpaid, while others offer stipends, wages, or salaries. The Fair Labor Standards Act (FLSA) requires "for-profit" employers to pay employees for their work, but interns and students may not be considered "employees" under the FLSA, in which case they are not entitled to compensation.
The Department of Labor determines whether an intern is an employee and, therefore, whether they should be paid. If an intern is considered an employee, they are entitled to at least minimum wage and overtime pay under the FLSA. To determine whether an intern is an employee, the FLSA uses the "primary beneficiary test," which examines the "economic reality" of the intern-employer relationship. Courts have identified seven factors as part of this test:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation.
- Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training similar to an educational environment.
- The extent to which the internship is tied to a formal education program (coursework or academic credit).
- The extent to which the internship accommodates the intern's academic calendar.
- The extent to which the internship's duration provides beneficial learning.
- The extent to which the intern's work complements (and doesn't displace) the work of paid employees.
Not all seven factors need to be met to qualify as a paid internship. Additionally, college credits are not an accepted form of compensation and cannot be offered in lieu of payment.
It is important to note that even for interns, an I-9 form may be required if the internship provides any compensation or other benefits that could be considered payment for services. Unremunerated interns are not required to complete an I-9 form.
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E-Verify and avoiding a TNC
E-Verify is an electronic employment verification system managed by the USCIS. It works by comparing the information employees provide for Form I-9, Employment Eligibility Verification, against records available to the Department of Homeland Security (DHS) and the Social Security Administration (SSA). If the information matches, the employee’s case receives an Employment Authorised result in E-Verify.
However, if the information does not match, the case will receive a Tentative Nonconfirmation (TNC) or mismatch result. A TNC does not mean the employee is unauthorised to work; it simply indicates a mismatch in the provided information that requires further review. A TNC can result from a variety of factors, including name changes, typos or data entry errors, and document expiration.
When a TNC occurs, the employer must follow these steps to ensure compliance with E-Verify regulations:
- Download the Further Action Notice: The employer must retrieve the Further Action Notice from E-Verify, which details the mismatch and includes the case number.
- Provide Notice to the Employee: The employer should present the Further Action Notice to the employee privately, allowing them to review the information and confirm its accuracy.
- If the information is incorrect: If the employee identifies errors in the information, the employer should select the option in E-Verify that states the information is incorrect, close the case, and create a new case with the correct data.
- If the information is correct: The employer should notify the employee that they have 10 federal business days to decide whether they wish to take steps to resolve the mismatch with the relevant agency.
To avoid receiving a TNC, employees can ensure their records are correct and up to date. They can also work with their employer and review the official E-Verify TNC Overview for detailed information on resolving TNCs.
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STEM OPT students and their employers
International students on F-1 visas are eligible to work in the US under certain conditions. One such condition is Form I-9, which is used to verify employment eligibility. While interns are generally exempt from completing Form I-9, they may be required to do so if they receive compensation or other benefits that could be considered payment for services.
Now, for STEM OPT students and their employers, there are specific requirements and responsibilities that must be adhered to:
STEM OPT Employer Requirements and Responsibilities:
- Employers must be enrolled in E-Verify, an electronic employment verification system managed by USCIS, and remain in good standing. They must also have a valid Employer Identification Number (EIN) issued by the IRS for tax purposes.
- Employers must implement a formal training program that builds on the student's academic learning through practical experience.
- Any changes to the STEM OPT student's employment, including termination, must be reported to the DSO within a specified timeframe.
- Employers must complete Form I-983, Training Plan for STEM OPT Students, attesting to the availability of resources and trained personnel, the student's role, and the alignment of the opportunity with the student's training objectives.
- The "personnel" providing and supervising the training may be employees or directly retained contractors of the employer but cannot be employees or contractors of the employer's clients or customers.
STEM OPT Student Requirements and Responsibilities:
- STEM OPT students must maintain their F-1 status by complying with DHS employment and reporting requirements, including reporting all changes of address and periods of employment and unemployment.
- Students must have a bona fide employer-employee relationship with their STEM OPT employer, and the employment must be directly related to their STEM degree.
- Students must work full-time (more than 20 hours per week) and maintain a Form I-983 Training Plan with their employer.
- Students must complete the OPT STEM Reporting Form and I-983 Evaluation on Student Progress, submitting validation reports within specified timelines.
- Students applying for the STEM OPT extension must first apply for and receive an I-20 requesting the extension and then obtain the Employment Authorization Document (EAD) from USCIS.
- Certain F-1 students with STEM degrees may apply for a 24-month extension of their post-completion OPT.
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Frequently asked questions
All employees, including international students, are required to complete Form I-9 when they are hired for employment in the US. This includes F-1 students in the US on a nonimmigrant student visa.
Form I-9 is used to verify an individual's identity and employment authorization. It confirms their legal eligibility to work in the US based on their immigration status and the type of employment authorization they possess.
The documents required for Form I-9 are categorized into three lists: List A, List B, and List C. Individuals must provide either one document from List A or a combination of one document from List B and one document from List C. Acceptable documents include a state driver's license (List B) and a Form I-94 indicating F-1 nonimmigrant status (List C).
Form I-9 should typically be completed within a few days of the employee's hire date. Section 1 of Form I-9 must be completed by the employee on or before their first day of employment. Section 2 is then completed by the employer or an authorized representative to review and verify the employee's documents.
Yes, employers are responsible for ensuring that Form I-9 is properly completed and retained. Failure to do so can result in penalties. Form I-9 must be kept on file by the employer for at least three years after the date of hire or one year after employment termination, whichever is later.
