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TEES Impact

Unpaid Internships and Volunteers

Overview

It is vitally important to ensure that all appointments are monitored and approved to help ensure that requisite export control, intellectual property, access and training protocols are within compliance guidelines. In order to comply with the Fair Labor Standards Act (FLSA) and U.S. Department of Labor (DOL) standards, Texas A&M Engineering will restrict “volunteers,” as defined by the DOL, but will permit “unpaid interns” in certain circumstances with proper approval; additional immigration considerations will be made based on U.S. Immigration and Customs Enforcement guidance, which stipulates:

  1. All optional practical training (OPT) employment, including post-completion OPT, must be in a job that is related to the student’s degree program.
  2. A student may work part time (at least 20 hours per week when on post-completion OPT) or full time.
  3. A student may work as an unpaid intern, where this practice does not violate any labor laws.

Regarding the reference to “labor laws”, DOL standards and court rulings provide guidance that will be applied to assess requests on a case-by-case basis. All seven DOL standards are important, but the following three are particularly relevant:

  1. 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.
  2. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  3. 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.

If you feel as though the arrangement meets the definition of an unpaid intern, please complete the Unpaid Intern Request form for each individual, which will be processed by Engineering Human Resources. If it does not, and is likely an employment scenario, we are happy to help you coordinate a title and pay rate that fits the situation.

Department of Labor Rules For Internships

U.S. Department of Labor (DOL) 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 activities that qualify as employment should be compensated according to the FLSA. While both an individual and employer may be happy with an unpaid arrangement (for example, someone 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 institution and the employee are benefitting from the employment.

To determine whether an unpaid internship is allowable, the DOL considers a number of factors listed in the “primary beneficial test." No single factor is determinative.

Employee or Volunteer

According to U.S. labor laws, there is more to distinguish between employees and volunteers than whether an individual receives a regular paycheck. Work that is unpaid may still be considered employment for F-1 or J-1 status holders.

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, a volunteer is: an “individual who performs hours of service … for civic, charitable or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.”

Unpaid Internships or Volunteering 

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 OK 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 related to the intern’s major field of study. 

Immigration Considerations for Unpaid Internships 

Not only do F-1 and J-1 visa holders need to comply with Department of Labor (DOL) standards, but also U.S. Citizenship and Immigration Services (USCIS) standards (specifically policy 1004-03-7.2). These additional requirements apply to F-1 and J-1 students:

  1. The internship has to be in the declared major field of study (additional guidance from ICE).
  2. 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).
  3. Any remuneration or any other type of compensation at all requires F-1 students to receive either CPT or OPT work authorization and J-1 students must apply for Academic Training.
  4. 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.
  5. This practice should not violate any of the aforementioned labor laws

According to U.S. labor laws, there is more to distinguish between employees and unpaid interns than whether an individual receives a regular paycheck. Work that is unpaid may still be considered employment for F-1 or J-1 status holders. Any off-campus employment for F-1 or J-1 students must be authorized!

Without proper work authorization, an unpaid internship could be considered a violation of F-1 or J-1 requirements. The consequences would most likely include loss of legal immigration status in the U.S., possible deportation by the U.S. Department of Homeland Security, and great difficulty in any future attempts to acquire a visa to enter the U.S.