According to the Code of Federal Regulations 8 CFR 274 (a) (f) an employee is an individual who performs services or labor in exchange for wages or other forms of compensation. Therefore, employment is work performed or services provided with the expectation that there will be compensation, either financial or other remuneration. In contrast, “volunteer work” refers to philanthropic activities undertaken without the expectation of financial gain. Volunteering involves offering free labor to support community service initiatives or nonprofit organizations. Examples of volunteer opportunities include:
- Food Bank Assistant / Soup Kitchen Volunteer
- Homeless Shelter / Animal Shelter Assistant
- Park or Beach Cleanup Volunteer (ex. Habitat for Humanity)
- Hospital Volunteer / Blood Drive Assistant (for companies such as the Red Cross)
Students should not accept a volunteer opportunity without first checking with OGE.
The most crucial employment consideration to keep in mind is the distinction between legal (“authorized”) and illegal (“unauthorized”) employment. It is essential to ensure that any work you undertake is legally permitted. Engaging in unauthorized employment—even for a single day, and even if you were unaware it was illegal—can significantly jeopardize your ability to stay in or return to the United States. You must always obtain the necessary employment authorization before beginning work. Starting a job without prior authorization, even if approval is granted later, is still considered illegal employment.
Regarding standard post-completion OPT, SEVP OPT Policy Guidance 1004-03 (2010) states that to constitute “employment” for purposes of avoiding the count of unemployment, “Students may work as volunteers or unpaid interns, where this practice does not violate any labor laws. The work should be at least 20 hours per week for students on post-completion OPT. A student should be able to provide evidence, acquired from the student’s employer, to verify that he or she worked at least 20 hours per week during the period of employment.”
Volunteering at Montclair State University is not permitted as the University does not have any positions that fit this category. Student may be able to work as unpaid interns on campus, see the criteria below.
SEVP Broadcast Message 1805-01: Reporting Volunteer Positions During OPT Employment (May 18, 2018) reminds students that all volunteer work on OPT must be directly related to their program of study. “Volunteer positions that are not directly related to your course of study do not qualify as optional practical training (OPT) and must not be listed as OPT employment. Reporting non-qualifying volunteer opportunities as OPT employment will be deemed a violation of your reporting requirements and subject you to removal from the United States. In addition, non-qualifying volunteer positions do not stop the accrual of unemployment which is limited to a total of 90 days during OPT. Accordingly, if you have been unemployed for more than 90 days, you must leave the United States or be subject to removal even if you have volunteered while unemployed.”
Volunteering or any other form of unpaid work does not qualify as employment for the purposes of the 24-month STEM OPT extension.
Internships differ from volunteering as they are structured to provide educational, learning, and professional development experiences. In contrast, volunteering is generally more informal and is carried out for nonprofit, charitable, humanitarian, or religious organizations with the primary goal of serving the public.
According to the U.S. Department of Labor under the Fair Labor Standards Act (FLSA) the following six criteria must be met for an internship to be considered a legitimate unpaid internship:
- The internship is similar to training that would be given in an educational environment, even though it includes actual operation on the facilities of the employer
- The internship experience is for the benefit of the intern
- The intern does not displace regular employees, but works under close supervision of existing staff
- 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
- The intern is not necessarily entitled to a job at the conclusion of the internship
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship
If these criteria are not met, then the intern or student is actually an employee, and he or she is entitled to both minimum wage and overtime pay under the FLSA.
Accepting an unpaid opportunity that does not comply with labor laws:
- Will not stop the 90-day “unemployment clock” for the student
- Will expose the employer to wage/hour law penalties such as having to pay back wages
Those planning to accept an unpaid internship as their OPT employment must receive an official offer letter from the company detailing the internship dates, weekly hours, and job responsibilities.