How To Maintain F-1 OPT Student Status With Authorized UNPAID Employment Prior To H-1B Nonimmigrant Pathway For Entrepreneur Employment in the USA
A sponsoring Student and Exchange Visitor Information System (SEVIS) approved/certified school — with an Approved U.S. Immigration and Customs Enforcement (ICE) Form I-17 — is required to verify the availability of financial support before issuing the ICE Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status” to a foreign national or noncitizen of the United States of America (USA). See 9 Foreign Affairs Manual (FAM) 402.5–5(G)(1).
The phrase “sufficient funds to cover expenses” referred to in 22 Code of Federal Regulations (CFR) 41.61(b)(1)(ii) means the applicant must have sufficient funds to successfully study in the USA without resorting to unauthorized U.S. employment for financial support. An applicant must provide evidence that sufficient funds are, or will be, available to defray all expenses during the entire period of anticipated study (duration of status “D/S” defined by 8 CFR 214.2(f)(5)).
An F-1 student’s plan or intention to use curricular practical training (CPT) or optional practical training (OPT) [or science, technology, engineering and mathematics (STEM) OPT] to cover first-year expenses would be insufficient. Barring unforeseen circumstances, adequate funds must be available for each additional year of study from the same source or from one or more other specifically identified and reliable financial sources. The mere eligibility and/or intent to engage in CPT or OPT [or STEM OP] is speculative, both in terms of the amount of money that might be earned and whether authorization to work will be granted, and therefore may not be sufficient to demonstrate the necessary funds.
Financial support to an F-1student is not a mere formality to facilitate the applicant’s entry into the USA, nor does it pertain only when the individual cannot otherwise provide adequate personal support. Rather, the sponsor must ensure that the applicant will not become a public charge (See 9 FAM 302.8–2) nor be compelled to take unauthorized employment while studying in the USA. This obligation commences when the visa holder enters [or status holder is in] the USA and continues until the visa [or status] holder’s completion of their program of study and departure (also known as “aka” grace period or preparation for departure as defined by 8 CFR 214.2(f)(5)(iv)).
Do F-1 students [and their F-2 dependents] need employment authorization to volunteer [for a corporation qualified under Section 501(c)(3) of the Internal Revenue Code as a tax-exempt organization, without promise, expectation, or receipt of any compensation for work performed]?
No, F-1 students [and their F-2 dependents] who work without wages, taxable compensation or other remuneration are considered volunteers and are not required to obtain an employment authorization document (EAD).
NOTE: The USCIS, formerly the U.S. Immigration and Naturalization Service (INS), interpreted its regulations as excluding from the employment definition (8 CFR 274a.1(h)) volunteers ‘who provide their services without any compensation, including room and board, gifts or other benefits, under the guidelines of the Internal Revenue Service (IRS) for “contribution of services as defined by 26 CFR 1.170A-1(g).”
26 CFR 1.513–1(e)(1) specifically states that the term unrelated trade or business does not include: Any trade or business in which substantially all the work in carrying on such trade or business is performed for the organization without compensation. 26 CFR 1.132–5(r)(3)(i) states an individual is considered a “bona fide volunteer” if the individual does not have a profit motive for purposes of 26 CFR 1.162–1(a). For example, an individual is considered a “bona fide volunteer” if the total value of the benefits provided with respect to the volunteer services is substantially less than the total value of the volunteer services the individual provides to an exempt organization or government employer.
You may be wondering why you’re paying a fee as a volunteer, or unpaid trainee with our organization or asking yourself, is it worth it to spend money on maintaining your F-1 O.P.T. status? This is an incorrect way to view asking a company to supervise you and be responsible for a foreign national.
A businesswoman was indicted by a federal grand jury on fraud charges for allegedly providing false verifications of employment for Chinese nationals seeking to stay in the United States on student and work visas:
My first priority is to protect my company and its legal authority to operate. I will not jeopardize its status for anyone’s personal convenience. So, “The Big Question” that looms very large is, “Should You Pay to Volunteer?”
It’s a choice. You are not required to stay in this country following the conclusion of your program. Nonimmigrant visas are issued to foreign nationals who intend to remain in the United States for a temporary (less than permanent) period. The period varies for different nonimmigrant categories. There are more than 40 nonimmigrant U.S. visa categories; each is used for a different, but very specific purpose.
The U.S. Government understands that plans can change. If your original reason for coming to the USA changes, you may be required to change your nonimmigrant status to a different one before you lawfully begin to engage in the activities you want to pursue. Naturally, you’re curious how to apply for a change from your current nonimmigrant status to another nonimmigrant status while you are in the USA.
The commodity you paid for, while attending a SEVIS-approved college or university, is the USCIS Form I-20, Certificate of Eligibility which indicates “Program Start Date” and “Program End Date.” You’re paying for time (authorized stay) in the USA.
You also received an associated Form I-94, Arrival / Departure Record.
These U.S. Government documents are proof, of the terms of your admission, into the United States of America, including legal status and length of time you may stay in the country.
Duration of Status or, “D slash S,” (D/S) refers to the period of time you pursued a full course of study, plus any authorized practical training following completion of your degree major.
The period of time, before a United States Employer files a fee-based petition, to request the USCIS, approve extension of your temporary nonimmigrant status, for up to the period of time listed on a labor condition application, is referred to as maintaining status.
It’s a misconception to expect a nonprofit public benefit corporation qualified under Section 501(c)(3) of the Internal Revenue Code as a tax-exempt organization to absorb expenses associated with donating your volunteer time or while you’re receiving bona fide training for employment in a specific capacity.
The entity is not organized or operated for private gain nor does it offer an opportunity to merely gain work experience.
As a nonimmigrant, foreign national, you have the option to return to your home country and share your experience with your compatriots, or seek appropriate alternatives.
Each day (including weekends) during the period, when O.P.T. authorization begins, and ends, that you do not have qualifying employment, counts as a day of unemployment.
If you’re exceeding the limit of 90 days of authorized unemployment, you will lose your work authorization. During the 60-day grace period, you will quickly understand, you will be charged a fee to go back to F-1 status and get a new I-20 issued.
In essence, to maintain status, you’re requesting an entity to “supervise” you and be responsible for you. This is a very serious issue.
In the 2018 Dynamex, Inc. case, the California Supreme Court ruled that companies must use a three-pronged test in determining whether to classify workers (volunteer) as employees or independent contractors (and by extension unpaid volunteers). This test assumes that workers (volunteers) are employees unless the company that supervises them can prove the following three things.
- The worker (volunteer) is free to perform services without the control or direction of the company.
- The worker (volunteer) is performing work tasks that are outside the usual course of the company’s business activities.
- The worker (volunteer) is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
The emphasis is on properly classifying your relationship to the entity and for establishing or maintaining your legal status in the USA.
You’re welcome to investigate your options and talk to other agencies. Here is an example of a “volunteer experience” to maintain F-1 student status. EF Volunteer Experience: Combine an English course with an unpaid volunteer experience in the USA. Our program for international students combines volunteer experience of 50 hours or more with a minimum 8-week EF Language Course.
SEVP Policy Guidance 1004-03, dated April 23, 2019, indicates you may work as a volunteer or unpaid intern, where this practice does not violate any labor laws and the work must be at least 20 hours per week. Since federal law requires formal verification as evidence from an E-Verify employer the company must avoid any potential liability. Therefore, the leadership is being upfront, and honest, about why you are advancing, personal funds to the operation of the organization, of which you are asking to be strongly affiliated with.
Your designated school official or “DSO” should have explained the “T” in OPT stands for “training,” not regular employment.
The corporation provides bona fide training, at a formative stage of your development. Your participation includes interaction with others to develop networks for relationships that will last through generations, as you move into leadership roles in a broad range of occupational fields in your own society or, here, in the USA, should you successfully navigate the immigration process to qualify for the dual intent H-1B, cap exempt status. Merely gaining additional work experience is disallowed for nonimmigrants.
Another option available to you, that few of your peers explore, is to start a business, and be self-employed as an entrepreneur to be in control of maintaining your status.
While this may be a less expensive choice than paying a fee to the organization, be mindful, you must be able to prove that you have the proper business licenses and you are actively engaged in a business related to the your degree program.
Information for STEM-OPT: The “personnel” who may provide and supervise the training experience may be either employees of the employer, or contractors who the employer has directly retained to provide services to the employer. DHS, at its discretion, may conduct a site visit of any STEM OPT employer to ensure that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with the Form I-983. See 8 C.F.R. 214.2(f)(10)(ii)(c)(11). Consistent with this provision, during a site visit, DHS may verify that the employer that signs the Form I-983 is the same entity that provides the practical training experience to the student and ensure compliance.
NOTE: Alternative compensation may be allowed during a STEM OPT extension as long as the F–1 student can show that he or she is a bona fide employee and that his or her compensation, including any ownership interest in the employer entity (such as stock options), is commensurate with the compensation provided to other similarly situated U.S. workers.
Reference, “The Employer’s Training Obligation” https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt
You’re certainly welcome to schedule a streaming audio call, http://zoomregister.whomentors.com, at your earliest convenience, when you’re convinced you need your nonimmigrant status in the USA, and you’re absolutely willing to pay to maintain it.
Contact Rauhmel@WHOmentors.com or SMS text 415–373–6767 to discuss further. Meetings are held at the corporate office: 99 South Almaden Boulevard, Suite 600, San Jose, CA 95113.
