Lori Meadows
Unpaid internships have long been a staple of early career development for university students, offering valuable experience and résumé-enhancing opportunities. However, unpaid internships have also been a source of legal issues, particularly for international students. The laws governing unpaid internships are complex and depend on various factors, including the student's immigration status, the nature of the internship, and the requirements of the Department of Labor (DOL). While unpaid internships do not always require work authorization, international students must carefully navigate these laws to avoid violating their immigration status and risking deportation.
| Characteristics | Values |
|---|---|
| Can international students get unpaid internships? | Yes, but it depends on the internship program. If the internship satisfies the Department of Labor (DOL) rules regarding "volunteer work", it is not considered "employment", and international students can engage in this type of internship without pay or work authorization. |
| What is the risk if an international student engages in an unpaid internship that should have been paid? | If an international student engages in an unpaid internship that is later deemed to have been paid employment, the student will have violated their immigration status and risks deportation. |
| What is the safest course of action for international students seeking unpaid internships? | It is recommended that international students obtain proper work authorization even for unpaid internships to provide legal protection. |
| What is the criterion for an internship to be considered "unpaid"? | The U.S. government uses a "primary beneficiary" test to determine which party is the "primary beneficiary" of the intern-employer relationship. The test includes factors such as the mutual understanding between the intern and employer that there is no expectation of compensation. |
| What is the process for F-1 international students seeking internships? | F-1 international students should first talk to their designated school official (DSO) to ensure they follow the rules and maintain their student status. CPT is the most common form of work authorization for F-1 students seeking internships. |
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What You'll Learn
International students on F-1 visas can do unpaid internships
International students on F-1 visas can participate in unpaid internships, but there are several important considerations to keep in mind. Firstly, it's crucial to understand the regulations set by the Department of Labor (DOL) regarding unpaid internships. The DOL has specific rules governing when an internship can be lawfully unpaid, and these rules must be followed to avoid any legal issues.
One key consideration is whether the internship provides a beneficial service to the employer. If the internship provides such a service, it is likely that the position should be paid, and the student would require proper work authorization. This authorization can take the form of F-1 Optional Practical Training (OPT) or Curricular Practical Training (CPT), which must be authorized by a Designated School Official (DSO) and be integral to the student's major field of study.
However, if the internship is properly considered "unpaid" within the DOL rules, it is not considered "employment," and the student does not need work authorization. In this case, international students on F-1 visas can legally engage in the internship without pay. It's important to note that the DOL actively investigates unpaid internship programs to determine if the work performed should be compensated.
To ensure compliance, international students seeking unpaid internships should consult with their DSO and carefully review the DOL guidelines. Additionally, students may want to consider other options, such as on-campus employment, which has specific limits and requirements outlined by federal regulations. Furthermore, F-1 students experiencing economic hardship may apply for authorization to work full-time during summer vacations at an off-campus job.
In conclusion, while international students on F-1 visas can do unpaid internships, it is crucial to navigate the complex regulations surrounding this topic carefully. Seeking proper guidance and authorization is essential to ensuring a positive and lawful internship experience.
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International students on J-1 visas can do unpaid internships
To be eligible for a J-1 visa, students must be at least 18 years old (except in the \"Secondary School Student\" category, where the minimum age is 15), enrolled as a full-time student at a university outside the US, and have a commitment for an internship from a US company related to their field of study. They must also have proficient English language skills and sufficient financial resources of at least $1,300 USD per month available during their stay in the US. The internship duration should not exceed 12 months, and there must be at least three permanent employees per J-1 applicant.
It is important to note that the rules governing unpaid internships are strict, and the US Department of Labor (DOL) actively investigates whether internships should be classified as paid employment. If an internship is deemed to be paid employment, international students without proper work authorization risk violating their immigration status and may face deportation. Therefore, students should ensure that their internships meet the criteria for being lawfully unpaid under DOL rules.
To summarize, international students on J-1 visas can participate in unpaid internships in the US, but they must carefully navigate the requirements and regulations to ensure compliance with their visa status and avoid any legal consequences.
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Unpaid internships and US labour laws
Unpaid internships have long been a feature of early career development for university students in the US. However, there has been a longstanding disconnect between the practice of using unpaid interns and the country's wage and hour laws, which require workers to be paid for work performed.
The US Department of Labor (DOL) enforces the Fair Labor Standards Act (FLSA), which prevents the exploitation of workers by requiring employers to pay at least a minimum wage for work performed. The DOL has recently started vigorously investigating unpaid internship programs to determine if the work performed should be compensated.
The DOL uses the "primary beneficiary test" to determine whether an intern or student is an employee under the FLSA. This test allows courts to examine the "economic reality" of the intern-employer relationship to determine which party benefits more from it. Some of the factors considered include:
- The extent to which the intern and the employer understand that there is no expectation of compensation.
- The extent to which the internship provides training similar to that in an educational environment.
- The extent to which the internship is tied to the intern's academic program.
- The extent to which the internship accommodates the intern's academic calendar.
- The extent to which the internship provides beneficial learning to the intern without displacing the work of paid employees.
- The extent to which the intern and the employer understand that the internship does not lead to a paid job.
If an internship is properly "unpaid" under the DOL rules, it is not considered "employment," and international students can engage in such internships without any work authorization. However, if an internship should have been paid, international students who engage in such internships without proper work authorization risk violating their immigration status and may face deportation. Therefore, it is crucial for international students to understand the rules and obtain proper authorization before undertaking unpaid internships in the US.
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Curricular Practical Training (CPT) for international students
Curricular Practical Training (CPT) is a type of work authorization that allows F-1 international students to participate in paid and unpaid off-campus internships and practicums during their degree programme. CPT is only available to students who have maintained their F-1 status each semester and are enrolled full-time for the semester in which they wish to pursue CPT. The only exception to this is during the student's final semester.
CPT must be an integral part of the student's degree programme and related to their major field of study. It cannot be used as a way to continue employment that has since ended. CPT is also subject to certain time limitations. For example, if a student completes 12 months or more of full-time CPT, they become ineligible for Optional Practical Training (OPT). However, part-time CPT is permissible and will not affect a student's OPT status.
To apply for CPT, students must first secure an internship offer and enrol in a full course load or indicate that they are in their final semester. They must then register for an internship course, if applicable, and complete the CPT request form, attaching an internship offer letter for review by their academic advisor or internship coordinator.
It is important to note that CPT is not just for employment purposes but primarily serves an academic purpose. Students must successfully complete all internship courses to be eligible for current and future CPT authorizations.
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F-1 students and work authorization for unpaid internships
F-1 students must be cautious when considering unpaid internships to ensure they do not violate their immigration status. If an internship should have been paid, according to the Department of Labor (DOL), and the student undertakes it without authorization, they will be in violation of their status.
Firstly, it is important to note that F-1 students who are outside of the US during their internship are not subject to US visa or immigration restrictions and do not need US work authorization.
If an F-1 student is in the US, they should consult their designated school official (DSO) to ensure they follow the rules and maintain their student status. They may be eligible to receive authorization to work full or part-time on campus during the summer vacation.
Unpaid internships must meet several criteria to qualify as legitimate opportunities. The work must be truly voluntary, and the intern must receive no compensation, including meals or transportation. The internship must provide training and be primarily educational in nature, with the main benefits going to the intern. The work should not provide an immediate advantage to the employer, and there should be no expectation of compensation.
F-1 students can obtain CPT or OPT work authorization for unpaid internships. This ensures they do not violate their status if the internship is later deemed to be paid employment. However, F-1 students cannot be retroactively remunerated for work done in an unpaid internship if they subsequently obtain work authorization.
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Frequently asked questions
Yes, international students can take unpaid internships, but they must be cautious. Unpaid internships are only legal if they meet the U.S. Department of Labor's requirements, otherwise, they are considered employment and require work authorization.
If an unpaid internship is deemed to be illegal, international students risk violating their immigration status and may face deportation.
The U.S. Department of Labor uses a “primary beneficiary" test to determine the legality of an unpaid internship. This test examines the "economic reality" of the intern-employer relationship to determine who is the "primary beneficiary". There are 7 factors that are considered, including the understanding that there is no expectation of compensation.
The process for obtaining work authorization for an internship depends on the student's visa status. F-1 students can obtain Curricular Practical Training (CPT) or Optional Practical Training (OPT) authorization through their school's designated official. J-1 students can obtain Academic Training employment authorizations.
Yes, international students can participate in internships that take place outside of the U.S. and are paid by foreign sources. These internships are not subject to U.S. immigration or employment laws and therefore do not require U.S. work authorization.
