The attorneys of Reddy & Neumann have previously written articles concerning the process involved in hiring a student on F-1 status for a position that may qualify as OPT or STEM OPT. These two options make up the typical path for a student to work in the United States, however, outside of traditional employment opportunities, a third option exists. Much like OPT and STEM OPT, the option for an international student to work at an internship does exist. This option is fairly similar to that of OPT and STEM OPT but comes with its own set of requirements and regulations, which, if not followed, could make hiring an F-1 student more complicated than necessary. This article details the basics concerning what an internship is, how it differs from traditional employment, and a breakdown of the internship application process as well information regarding employers obligations in hiring an F-1 student for an internship position.
F-1 students may not work during their first year of college, university, or seminary, but following this period, usually at the end of a school year (approximately nine months) students become eligible to apply for Curricular Practical Training (“CPT”) employment authorization. CPT is a program in which F-1 students are allowed to gain practical work experience that is directly related to their education. The employment must be a major part of their curriculum and may be a paid or unpaid internship, practicum, or cooperative education program. In addition, the CPT must be required by the F-1 students major and, if it is not, the student must receive course credit. CPT can be part time (20 hours or less a week) or full time (20 hours or more a week), however, if the student’s CPT is full time for twelve (12) months, the student will lose their eligibility for Optional Practical Training (“OPT”). Finally, CPT must be completed before the F-1 student graduates from their college/university.
As mentioned above, an F-1 student’s CPT may be a paid or unpaid internship. However, in the case of F-1 students, this does not mean the same thing as a student volunteering their time in the event that the internship is unpaid. Instead, this experience must be related to the intern’s major and six criterions must be met in order to qualify as an unpaid internship:
- The internship, even though it includes actual operation on the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a paid job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
In addition to these six basic requirements, for F-1 students, there are four more additional requirements that must be met for an unpaid internship:
- The internship has to be in the declared major field of study;
- The internship cannot be for more than 20 hours a week during term time (those students with a 50% assistantship will not be eligible for the internship opportunity);
- Any type of compensation at all requires F-1 students to receive either CPT authorization; and
- F-1 students cannot be retroactively remunerated or in any way compensated for work done in an unpaid internship if they subsequently obtain work authorization.
APPLYING FOR CPT
For a student to apply for CPT, a student must first make a request with the student’s designated school official (“DSO”) to recommend CPT. A student may begin CPT after their DSO has authorized CPT on the student’s Form I-20, Certificate of Eligibility for Nonimmigrant Student Status. If the recommendation is granted, the DSO will make the recommendation by endorsing the student’s Form I-120, Certification of Eligibility for Nonimmigrant Student Status, and by entering the recommendation into the student’s Student and Exchange Visitor Information System (“SEVIS”) record. On the I-20, the end date for the student’s CPT employment should be noted in Section 1 as the date employment authorization expires.
HIRING A F-1 STUDENT WITH CPT
In Section 2 of Form I-9, students must present documents to establish their identity and employment authorization. In order to show one’s authorization to work in the country, USCIS has compiled a list of acceptable documents that they will accept that can be found on the USCIS website. Furthermore, the list of acceptable documents is broken down into three lists— A, B, and C — which further separates the documents into documents that establishes both identity and employment authorization, documents that only establish identity, and documents that only establish employment authorization. If a Document from List A is presented, no other documents are necessary. However, if a no document from list A is presented, an employer must provide at least one document from both Lists B and C to meet verification requirements.
For F-1 CPT Student purposes in completing Section 2 for this student, an CPT student’s unexpired foreign passport, Form I-20 with DSO endorsement for employment, and Form I-94 indicating F-1 immigrant status all fall under List A’s acceptable documents. Thus, you should present any of these documents to help prove identity and employment authorization.
In addition, when using List A documents, a student should also enter their foreign passport information, their I-94 information, as well as the information provided on their I-20, including their SEVIS number and CPT end date.
While this is a general overview of the process that is involved in hiring an F-1 student for an internship there are many potential issues that you may run into as you attempt to onboard your student. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS regulations, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.
By: Ashley Thomas