F-1 Post-Completion OPT & Unpaid Internships

Published: 12/08/2018

Source: https://bit.ly/2BXEwOp

Now more than ever, F-1 students with OPT employment are facing high levels of scrutiny upon the filing of H-1B petitions requesting a change of status and/or STEM extensions. This article discusses one particular area of difficulty F-1 students have been forced to deal with – the issue of “unpaid internships.”

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Pursuant to OPT regulations, students cannot accrue more than ninety (90) days of unemployment during the initial grant of OPT, or one-hundred twenty (120) days for those on a STEM extension. This begs the question of whether an “unpaid internship” qualifies as authorized employment. According to SEVP Policy Guidance, “unpaid or volunteer work” may count as an acceptable form of employment. However, contrary to SEVP’s advisement, F-1 students engaging in unpaid internship programs have recently been scrutinized by United States Citizenship and Immigration Services (“USCIS”) during adjudications of their H-1B petitions and/or STEM extensions.

The U.S. Department of Labor has provided guidance on this issue, and has created six (6) criteria to evaluate whether an unpaid internship qualifies as an acceptable form of employment:

1.The internship 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, and works with and under close supervision of existing staff;
4. The employer receives no immediate advantage or does not gain benefits from the activities of the intern;
5. The intern is not entitled to a job following the conclusion of the internship; and
6. Both the employer and intern understand that the intern is not entitled to any wages for the time during or subsequent to the internship.
It can often be very challenging to establish that your unpaid internship satisfies these requirements. We at Ramineni Law Associates recommend seeking the assistance of a qualified advocate who has had experience dealing with Requests for Evidence (“RFE’s”) or similar inquiries from USCIS regarding this issue. We have successfully responded to numerous RFE’s on behalf of F-1 students seeking H-1B employment or an extension of their OPT employment.

In one particular case, an individual was engaged in a part-time six (6) month unpaid internship program where she did not receive compensation from her OPT employer. After receiving an RFE, the Ramineni Law Associates team was able to successfully argue that her six-month internship qualified as an acceptable form of OPT employment, resulting in the approval of her 17-month STEM extension.

In another case, an individual was employed by a total four (4) different companies during the initial 12-month period of OPT employment. Some of these were paid jobs, while others were unpaid internships. Once again, the Ramineni Law Associate team successfully responded to an RFE by providing a comprehensive, detailed analysis of her employment history, establishing that each position was unquestionably qualified employment. This individual was granted a 17-month STEM extension.

If you anticipate to file any H-1B petitions of behalf of F-1 students, or if you happen to be an F-1 student facing issues related to your OPT employment, we encourage you to contact us immediately for a consultation. We have the necessary knowledge and experience that could advise you on how to avoid these arduous RFE inquiries from USCIS at the beginning stages of the filing, rather than waiting until it is too late.

Source: https://bit.ly/2BXEwOp

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