Overview and Background
Many international students want to do an internship or volunteer while they are in the United States. The U.S. has specific immigration and labor laws that apply to internships and volunteering, and it is important for international students to be aware of and comply with these laws to protect their immigration status. Unfortunately, these immigration and labor laws are often complex and difficult to properly and legally navigate. Therefore, OIS is here to help students understand the immigration and labor laws that may apply in internship and volunteer opportunities. As always, if anything is unclear, students can consult OIS to confirm whether an opportunity is legal for F and J students.
Employment Related Immigration Laws
The main purpose of employment related immigration laws is to protect individuals with legal authorization to work in the U.S. In general, immigration laws say that a nonimmigrant may only engage in employment that has been authorized, and engaging in unauthorized employment constitutes a failure to maintain status. Unauthorized employment is a serious violation of F-1 or J-1 status, and the consequences may include loss of legal immigration status in the U.S., possible deportation by the U.S. Department of Homeland Security, and difficulty in future attempts to acquire a visa to enter the U.S.
Labor (Employment) Laws
Additionally, U.S. federal government and state governments have developed labor laws whose main purpose is to protect all workers from unfair work practices. In general, labor laws say that if a person is providing any type of service or activity normally performed in exchange for money, tuition, fees, books, supplies, room, food or any other benefit, he or she is an employee and protected by labor laws. Therefore, defining “employment” is not as simple as whether the work is paid or unpaid; rather, it is defined by whether the job is normally performed in exchange for remuneration. By this standard, almost all employment is and must be paid according to U.S. labor laws. There are a two main exceptions to this rule which are “volunteering” and “unpaid internships,” each of which is very specifically defined and must meet a very well-defined set of criteria to qualify as unpaid experiences.
According to the U.S. Department of Labor, volunteers are individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, and are not considered employees of the religious, charitable or similar non-profit organizations that receive their services.
Under the Fair Labor Standards Act (FLSA), individuals may not volunteer services to for-profit private sector employers. This means that a person cannot work for free at for-profit companies even if s/he is willing to, and such companies cannot legally allow anyone to work for free.
It is possible that individuals *may* volunteer services to public sector employers (such as NC State University or other federal, state, and local government employers), however, all of the following criteria must be satisfied in order for the individual to be considered a true volunteer under the FLSA:
- The services are intended to be voluntary and to be rendered without compensation.
- The services must constitute a bona fide effort of the individual to volunteer for humanitarian or public service purpose or for the benefit of education, training or professional experience.
- Individuals volunteer their time for their own personal motives, without promise or expectation of compensation or employment.
- Volunteers must not be used in ways that displace or replace regular employees in the performance of their normal duties.
Further, public sector employers may not allow their own current employees to volunteer, without compensation, additional time to do the same work for which they are employed. This means that if an individual is employed as a research assistant, s/he may not perform additional hours of the same or similar research assistant duties without compensation. Similarly, if an individual was previously employed as a research assistant, s/he cannot continue the same duties without pay after the paid employment period ends. Also, labor laws referenced above note that a person is considered an employee (and must be paid and have work authorization) if s/he is performing a job that is normally paid. As such, it’s not legal to work as a volunteer in positions at NC State University that are normally paid.
In sum, a volunteer is a person who donates his or her service for religious, charitable, civic, or humanitarian purposes to nonprofit organizations. Because volunteers give their service freely without any anticipation of compensation, they are not considered employees of the nonprofit organizations that receive their service. Therefore, F-1 and J-1 international students do not need work authorization to participate in a true volunteer experience as defined in this section. Some examples of true, legal volunteering are listed below:
- Sorting and repackaging food at a food pantry (for example at the Food Bank of Central and Eastern North Carolina.
- Weeding flower beds and planting flowers at a public park (for example through the Raleigh Parks, Recreation, and Cultural Resources Department’s Volunteer Program)
- Cooking and serving a meal at a soup kitchen (for example, Shepherd’s Table Soup Kitchen)
- Greeting blood donors at an American Red Cross Blood Drive event
- Walking dogs or cleaning cages at local animal shelter such as the Wake County SPCA
F-1 and J-1 international students should still exercise caution when accepting an unpaid position however, especially if that position is off-campus. Just because a position is unpaid (such as an unpaid internship), it might not be legal volunteering. If the work relates to your studies or professions, it is likely considered training or employment, and likely requires authorization. Review the next section on Unpaid Internships for more information.
An internship (paid or unpaid) is an experiential learning opportunity that occurs in a workplace environment. It allows a student to integrate academic learning with practical or “hands-on” experience and/or develop or refine specific professional skills. To be considered an internship, rather than a part time job, the experience must have an intentional and significant focus on student learning and a defined beginning and end date. Internships often center around defined projects with clear objectives, rather than routine unit operations. The immigration regulations permit internships and co-ops in the student’s field of study for those in F-1 or J-1 status if certain conditions are met and OIS advisors will gladly authorize them when possible. Additionally, it is best for international students to treat all such engagements and experiences as potential “employment” (whether or not wages or other benefits are initially offered or accepted) and seek the advice of OIS on whether work authorization is required and how to obtain it in order to avoid a violation.
International students must always obtain specific employment authorization to engage in a paid internship, namely Curricular Practical Training for F-1 students, or Academic Training for J-1 students. Please see our pages on Curricular Practical Training and Academic Training for more information about the process of obtaining the specific work authorization required for a paid internship and remember, the authorization must be approved by OIS in writing prior to beginning the internship.
Internships or other academic activities that may involve payment or benefits are treated as employment. F-1/J-1 students must always obtain specific employment authorization to engage in such opportunities prior to beginning the activity. Most commonly, the employment authorization for such opportunities will be Curricular Practical Training, Optional Practical Training, or J-1 Academic Training). Students should refer to the links above for eligibility requirements and application procedures before making an appointment with an OIS advisor, or before making a commitment to the employer or intern supervisor. Internships or other training opportunities may be on or off campus and may occur before or after the completion of the academic program – but in all cases, the student must obtain written work authorization from OIS (and sometimes USCIS) prior to engaging in the internship or training opportunity. Internships that take place overseas (meaning that the intern is physically outside the U.S. while participating in the internship) and are paid by foreign sources are not subject to US immigration or employment law and consequently do not requires U.S. work authorization. Internships that take place before a student graduates and utilize Curricular Practical Training or J-1 Academic Training employment authorizations are also processed through the Career Development Center and likely require registration for co-op as an integral part of the academic justification and experience.
Unpaid Internships are a very specific type of opportunity in labor law that is of benefit to the intern and not necessarily the organization. With bona fide unpaid internships, no one would get paid (domestic or international), it is advertised as unpaid, the position is usually called ‘unpaid intern’, payment is not refused or delayed to make it ‘unpaid,’ and it does not violate any labor laws. If anything must be changed about the opportunity to “make” it an unpaid internship, or if a person will eventually be paid for doing the same or similar job, then it is most likely not a bona fide unpaid internship and would require work authorization to do it.
If an opportunity meets the U.S. Department of Labor’s requirements to be considered an Unpaid Internship, it is not considered ‘employment’ and therefore no work authorization is required for it. However, it is recommended that students keep thorough documentation, such as a copy of the original position posting and/or a letter from the organization, showing that the position is truly and unpaid internship.
In evaluating whether the internship meets the Department of Labor’s requirements under the FLSA to be considered unpaid internship or should be considered employment (and therefore paid), the U.S. government uses a “primary beneficiary” test. This test examines the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. The following 7 factors are part of the test:
- 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 internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
No single factor is determinative, and whether the individual is an employee under the FLSA depends on the unique circumstances. Therefore, it is important to consult Human Resources in the determination process and prior to engaging in any unpaid work, especially if the unpaid work will be for NC State University. More information on this topic can be found on U.S. Department of Labor Fact Sheet #71: Internship Programs Under the FLSA.
Other Unpaid Work (which does meet the above Volunteering or Internship criteria)
Under US law, there is just some work that you cannot do for free even if you want to; it is not enough that you are willing to work for free, or that the employer is charitable, civic, or non-profit. What matters most is that the work meet the Volunteering or Unpaid Internship criteria above if it will be unpaid. If the work doesn’t meet the above criteria to be legally considered volunteering or an unpaid internship, it is considered employment and subject to labor laws that require the employer to compensate the employee and the employee to have work authorization. Furthermore, engaging in unpaid work that doesn’t meet the Volunteering or Unpaid Internship criteria above violates labor laws and is also considered an immigration violation for F-1 and J-1 students. Immigration violations which occur during an F or J program or during F-1 OPT may seem harmless and have no immediate consequences at the time. However, it’s important to realize that these violations often resurface later could negatively impact future eligibility for other immigration benefits such as change of status to H-1B, eligibility for permanent residency, etc.
When considering an unpaid opportunity, both the potential unpaid worker and supervisor should be very careful. Just because you or your supervisor think the work is truly volunteering or an unpaid internship does not mean the U.S. government (which conducts random audits of U.S. employers) will agree. Even unintentional violation of labor or immigration law can cause serious legal problems for you and your employer. For this reason, it is important to consult HR and immigration experts.
Unpaid Work and OPT
According to SEVP OPT Policy Guidance 1004-04 Section 7.2.1, Unpaid Employment is an eligible type of employment under OPT provided that the job is directly related to the student’s program of study and the following condition is met: “A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.” This means that if the work is unpaid, it must meet the U.S. Department of Labor Fact Sheet Unpaid Internship Test to qualify as eligible work under OPT and stop the unemployment clock. Students on OPT should be careful to ensure that any unpaid employment done while on OPT meets the Department of Labor’s criteria for an Unpaid Internship. Any unpaid work that does not meet the Unpaid Internship criteria, including refusing or delaying payment to make a position “unpaid” is not eligible employment while on OPT and in fact, is considered a violation of labor laws and F-1 status.
Unpaid Work on OPT at For-Profits, Including Start-Ups
Students should be especially careful when considering unpaid positions at for-profit companies, including start-up companies. Though many start-up companies are not profitable in their first few years, they are still considered members of the for-profit sector and, like all for-profit companies, their internship programs are subject to the Department of Labor rules for internships in the for-profit sector. This means that if a for-profit or start-up company offers an unpaid internship, it must meet all the Department of Labor Unpaid Internship criteria to be legally unpaid. If the unpaid internship does not meet all criteria, the intern must be paid at least minimum wage and overtime pay. Taking an unpaid internship while on OPT at a start-up company (or any for-profit company) that is not legally allowed to be unpaid is considered a violation of labor laws and F-1 status. Though it may not have any immediate consequences, a status violation could resurface in a future immigration application and have a severe impact.
Unpaid Work at NC State on OPT
Students often make arrangements for an unpaid position in their field at NC State University to stop the OPT unemployment clock if they are not able to find paid employment in their field within the first few months of their OPT period. In such cases, the student and the student’s NC State supervisor should ensure the no-pay position at NC State meets the legal requirements under the FLSA for the student to be an Unpaid Intern or Volunteer for Non-Profit Organizations. If there is any uncertainty about whether the no-pay position qualifies under the FLSA, the student and supervisor should consult David Perryman in the university’s Human Resources Department to assist with making the determination. As a reminder, in general, if the type of work being done is something the university normally pays an employee to do, or, if the work being done is something the department previously paid the student to do (such as a research assistantship or research position) it likely does not meet the FLSA requirements to legally be unpaid. OIS discourages students from accepting unpaid employment that does not meet FLSA requirements because such employment does not stop the unemployment clock and constitutes a status violation.
While the issue of volunteering may seem simple: “I’m not getting paid, so that means I am volunteering and I don’t need work authorization…” it is actually a complex area where immigration regulations and labor laws intersect. Taken together and largely simplified, this intersection of immigration and employment law means two things for F-1 and J-1 international students: if an employee-employer relationship exists, the employer must pay the employee AND the employee must have the proper work authorization to engage in the employment. In considering opportunities for volunteering, working, gaining experience, and employment, F-1 and J-1 can take the following steps to ensure they are protecting their immigration status:
- Carefully consider both immigration law, labor law, and all the factors that define employment
- Obtain proper authorization to engage in the employment before beginning employment
- As a reminder, any off campus employment for F-1 or J-1 students must be authorized
- Without proper work authorization, off campus employment would be considered a violation of your F-1 or J-1 requirements.
- Obtain and keep documentation of the nature of the work opportunity and proof of work authorization that corresponds to the period of the work experience
Remember, F-1 and J-1 students must be specifically authorized in writing before engaging in any off-campus employment. Without proper work authorization, off campus employment would be considered a violation of F-1 or J-1 requirements with serious, negative consequences. Consult OIS to find out if the opportunity you are considering may be considered employment and require work authorization before engaging in the opportunity.