
Working Without Pay on F-1 OPT: Navigating the Boundaries of Employment and Compliance
International students in the United States, and their employers, often navigate complex employment regulations under the F-1 visa. Optional Practical Training (OPT) allows F-1 students to gain U.S. work experience related to their field of study, but questions frequently arise regarding whether unpaid work is permissible and under what conditions.
While most F-1 students understand that U.S. Citizenship and Immigration Services (USCIS) plays a major role in regulating OPT, recent developments have highlighted the importance of the U.S. Department of Labor (DOL) and the Fair Labor Standards Act (FLSA) in determining what constitutes employment, or at least USCIS’ understanding of the FLSA. Misunderstanding these rules can lead to F-1 visa violations, jeopardizing a student’s ability to remain in the U.S. and potentially impacting future visa applications.
This article provides a comprehensive overview of unpaid work under F-1 OPT, clarifying key U.S. immigration laws, compliance considerations, and best practices for international students and U.S. employers. By understanding the intersection of immigration and labor laws, stakeholders can avoid common pitfalls and ensure compliance with both USCIS and DOL regulations.
Why This Article Now?
While the initial F-1 OPT regulations allow for unpaid work, such work must still comply with U.S. labor laws, particularly under the FLSA. The interpretation of these laws in the context of employment-based immigration has gained increasing importance due to recent trends in visa adjudications. Please note, unpaid internships are not allowed for STEM OPT.
In recent months, there has been a growing number of denials for STEM OPT extensions and H-1B petitions where USCIS raises concerns about FLSA compliance during the initial unpaid OPT employment period. Notably, these issues often do not appear in the initial Request for Evidence (RFE), but are later cited in denial notices.
STEM OPT RFEs tend to focus on whether the student had a bona fide employer-employee relationship during their initial F-1 OPT period, often requesting basic documentation that appears straightforward. However, these RFEs provide an opportunity to proactively address potential concerns about unpaid OPT employment and preemptively build a strong legal argument to avoid future H-1B and STEM OPT denial risks.
Given this evolving immigration law adjudication pattern, it is more important than ever for international students and U.S. employers to be fully aware of how unpaid F-1 OPT work is scrutinized under both immigration and labor laws. Proper documentation, issue-spotting, and strategic legal responses can help mitigate risks and strengthen U.S. visa applications.
Understanding OPT Employment Requirements
OPT is a temporary U.S. work authorization granted by USCIS that allows F-1 visa holders to work in U.S. jobs directly related to their academic field of study. OPT work authorization can be used:
- Before graduation (Pre-Completion OPT) – Part-time employment while school is in session and full-time employment during school breaks.
- After graduation (Post-Completion OPT) – Full-time employment for up to 12 months, with an additional 24-month STEM OPT extension for qualifying students.
Students must ensure that any employment, whether paid or unpaid, aligns with their academic program and complies with U.S. immigration law to avoid jeopardizing their F-1 status. Additionally, employers must understand their obligations when hiring F-1 students on OPT to remain compliant with labor laws and immigration regulations.
Unpaid Work and Standard OPT Regulations
The regulations governing F-1 OPT employment explicitly permit unpaid work. Generally speaking, initial post-completion can be an unpaid internship. Unpaid OPT positions are commonly found in nonprofit organizations, research institutions, and startups, where opportunities for compensation may be limited. However, despite F-1 OPT rules allowing unpaid work, employers must still ensure they comply with U.S. labor laws, which set strict guidelines regarding what constitutes employment versus volunteer work.
The Fair Labor Standards Act (FLSA) and Unpaid Work
The FLSA establishes minimum wage and labor protections for U.S. employees. The central issue in unpaid F-1 OPT work is whether the student should be classified as an employee under the FLSA. If a student is deemed an employee, they must be paid at least the U.S. federal minimum wage.
The DOL applies a primary beneficiary test to determine if an intern or trainee is truly a student gaining educational benefits or an employee who must be paid. Courts have developed, and DOL follows, a seven factor test in determining who the “primary beneficiary” of the services are. This is often called the “primary beneficiary test.” The seven factors are:
- 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 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 extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.
If an unpaid OPT internship meets these criteria, it may be lawful under the FLSA. However, if the intern performs tasks that directly benefit the U.S. employer without significant academic training, they may be misclassified and subject to wage requirements.
Additional Considerations for International Students
- Job Market Challenges – The U.S. job market is competitive, and international students must be proactive in securing legally compliant work opportunities that align with their academic background.
- USCIS Site Visits – Employers hosting OPT and STEM OPT students may be subject to random site visits to verify compliance with employment regulations.
- Impact on Future Visa Applications – Any noncompliance with OPT rules, including issues with unpaid work, may negatively affect future applications for H-1B visas, green cards, or other work visas. Specifically, and as will be discussed later, if there is a determination that you have failed to maintain proper status with your OPT, you may be found ineligible for STEM OPT or a change of status to another visa category.
Best Practices for Employers Hiring F-1 OPT Students for Unpaid Work
To mitigate risks and ensure compliance with U.S. labor and immigration laws, U.S. employers hiring F-1 OPT students for unpaid work should follow these best practices:
- Clearly define the nature of the unpaid role and ensure it aligns with the student’s academic program.
- Provide structured training opportunities that emphasize learning rather than productivity.
- Maintain detailed documentation of the student’s work, including work schedules and duties.
- Ensure unpaid work does not displace paid employees or provide direct commercial benefits to the employer.
- Consult with an immigration attorney to confirm compliance with OPT and FLSA regulations.
The Role of USCIS and DOL in Enforcing Compliance
Both USCIS and the DOL play critical roles in enforcing compliance with OPT and labor laws. USCIS focuses on ensuring that the employment aligns with the student’s academic program and maintains the integrity of the F-1 visa program. On the other hand, the DOL ensures that employers do not exploit unpaid interns by misclassifying them as non-employees when they should be compensated under the FLSA.
For international students, this dual oversight means that they must be vigilant in ensuring their unpaid work meets both immigration and labor law standards. Employers, too, must be aware of the potential for audits or investigations by either agency, particularly if there are complaints or discrepancies in documentation.
The Importance of Proper Documentation
Proper documentation is essential for both students and employers to demonstrate compliance with OPT and FLSA regulations. For students, this includes maintaining records of their job offer letters, work hours, and job descriptions that clearly tie the role to their field of study. Employers should keep detailed records of the training provided, the educational nature of the work, and any other evidence that supports the classification of the role as an unpaid internship rather than employment.
In cases where USCIS or the DOL requests evidence, having well-organized documentation can make the difference between a successful application and a denial. It is important to ensure the issues are identified and addressed even if they are not specifically questioned in the RFE. This is particularly important for students seeking STEM OPT extensions or transitioning to H-1B status, as any issues with unpaid work during the initial OPT period can resurface during these processes.
Conclusion
Understanding U.S. immigration and labor law is crucial for F-1 OPT visa holders. Unpaid work is allowed under regular OPT, but strict STEM OPT employment rules prohibit it. Given the recent visa adjudication trends, both international students and U.S. employers must be proactive in ensuring compliance to avoid unnecessary risks.
By staying informed and following best practices, international students can gain U.S. work experience while ensuring F-1 visa compliance.
Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.
By: Steven Brown
Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.