Services for International Students and Scholars

Volunteering

While the issue of volunteering may seem simple (“I’m not getting paid, therefore I am volunteering”), it is actually a complex area in which immigration regulations and labor laws intersect. If you are interested in volunteering, you must be aware of the relevant regulations so that you and the organization for which you are volunteering do not inadvertently violate any laws and don’t get penalized for unauthorized employment.

If you are an international student in F-1 or J-1 status, please remember that 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.  The consequences may include loss of valid immigration status in the U.S. and great difficulty in re-acquiring lawful status in the future.

According to U.S. immigration regulations, 8 Code of Federal Regulations 214.1(e):  “A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized.  Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status…”

What is the difference between an employee and a volunteer?  A common misconception is that the only difference is employees get paid and volunteers do not.

However, according to U.S. labor laws, there is more to distinguish between employees and volunteers than whether an individual receives a regular paycheck or not.  Work that is unpaid may still be considered employment that requires F-1 or J-1 off-campus work authorization.

What is an employee? The definition of an employee used in the context of immigration regulations is as follows: “An individual who provides services or labor for an employer for wages or other remuneration”.  Please note that the term “remuneration” is very broad and includes a variety of non-monetary benefits, such as free housing, food, gifts, etc.

What is a volunteer? According to the Department of Labor, volunteers are individuals “who volunteer or donate their services, usually on a part-time basis, for public services, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service”. (http://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp)

U.S. Department of Labor is concerned both with the protection of jobs for United States citizens, and with the prevention of exploitation of workers.  They have created laws to ensure that employment that should be paid is not done for free.  While both you and the employer may be happy with an unpaid arrangement (for example, you may be eager to work even on an unpaid basis in a company in order to gain job experience), this may be considered an unfair arrangement in cases where the work is normally performed by a paid person and both the company and the employee are benefitting from the employment.

 

To determine whether an individual is a true volunteer engaged in “ordinary volunteerism,” the Department of Labor considers a number of factors. No single factor is determinative. The factors include:

  • Is the entity that will benefit/receive services from the volunteer a non-profit organization?
  • Is the activity less than a full-time occupation?
  • Are the services offered freely and without pressure or coercion?
  • Are the services of the kind typically associated with volunteer work?
  • Have regular employees been displaced to accommodate the volunteer?
  • Does the worker receive (or expect) any benefit from the entity to which it is providing services?

Employment authorization is NOT required when the work performed can be considered volunteering. To be considered volunteering, the work performed by the individual must meet the following criteria:

  • No compensation or expectation of compensation,
  • The volunteer cannot displace a genuine employee, and the services provided by the volunteer should not be the same services for which he or she was previously paid and/or expects to be hired and paid for in the future;
  • Services are performed for a non-profit charity and the work is “charitable” in nature;

 

  • Services are performed for a state or local government agency and there is a “civic” purpose to the work.

Please note that there is a difference between volunteering and engaging in an unpaid internship.

As explained above, volunteering refers to donating time with an organization whose primary purpose is charitable or humanitarian in nature, without remuneration or any other type of compensation. F-1 and J-1 students are free to engage in volunteer work as long as it meets the above criteria. For example, it would be okay to volunteer at a local homeless shelter, charitable food pantry, or American Red Cross.

Unpaid internships, on the other hand, do not usually qualify as “volunteer” activity. Internships, both paid and unpaid, are primarily offered by the private sector and related to the intern’s major field of study.

The U.S. Department of Labor has guidelines for those seeking an unpaid internship: http://www.dol.gov/whd/regs/compliance/whdfs71.htm

The following six criteria must be met for an internship to be considered a legitimate unpaid internship (and not employment below minimum wage, in violation of Department of Labor laws):

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. 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;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

 

The above criteria are known as the “6 Factor Test” Please note that ALL 6 criteria must be met for the Department of Labor to consider the internship unpaid and not fall under the definition of “employment”. Factor #4 is particularly hard to meet and basically limits the activities of an intern to mere observations, excluding any contribution to the operations of the company/organization.

 

If the organization where work takes place is not a non-profit charity or a state/local government agency, all the 6 Factors above must be met for the student to engage in the activity with no special authorization (such as CPT/OPT/AT). In all other cases, prior work authorization is required before an F-1 or J-1 student engages in any work off campus.

 

If you have any questions whether you need work authorization or not, please contact the OGS.