International Center University of Florida

There are some basic guidelines that international students can use to determine whether or not the proposed volunteer activity might be considered unauthorized employment. When considering volunteering, ask these questions first:

1. Are the services performed for civic, charitable, or humanitarian purposes?
2. Are the services entirely voluntary, with no direct or indirect pressure by the employer, with no promise of advancement and no penalty for not volunteering?
3. Does the proposed service impair the employment opportunities of others by performing work that would otherwise be performed by regular, paid employees? Are the services provided the same as services provided by someone who is paid?
4. Is there any expectation of compensation either now or in the future for these services?

The international student should be able to answer “yes” to questions 1 and 2, and “no” to questions 3 and 4. If not, it is likely that the proposed volunteer activity is more likely unpaid employment, and could subject both the international student and the employer to heavy penalties.

Keep in mind that the Department of Labor is concerned both with the protection of jobs for United States citizens, and with the prevention of exploitation of workers. It is illegal for an employer to pressure anyone to work for free, or to engage in activities for which it is usual to be paid. While both the person and the employer might be happy with the arrangement (for example, working unpaid in a company in order to gain job experience), this is considered an unfair arrangement because that work is usually performed by a paid person. For the company to not pay the person doing the work is considered exploitation by DOL.

Remember the questions above and these basic guidelines:

1. Students should not engage in volunteer work if that work is usually performed by someone who is paid.
2. Students should not engage in volunteer work if there is any expectation of current or future compensation—including not only wages, but a promise of a future job, gifts, or other benefits.

This is a tricky question to answer, and goes beyond the simple measure of whether or not the person doing the work is getting paid. The Fair Labor Standards Act defines an employee as:

“(1) Except as provided in paragraphs (2),(3), and (4), the term “employee” means any individual employed by an employer….

(2) In the case of an individual employed by a public agency, such term means –

(A)   any individual employed by the Government of the United States – (i) as a civilian in the military departments (as defined in section 102 of title 5, United States Code), (ii) in any executive agency (as defined in section 105 of such title), (iii) in any unit of the legislative or judicial branch of the Government which has positions in the competitive service, (iv) in a non-appropriated fund instrumentality under the jurisdiction of the Armed Forces, or (v) in the Library of Congress;

(B)   any individual employed by the United States Postal Service or the Postal Rate Commission; and

(C)   any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual – (i) who is not subject to the civil service laws of the State, political subdivision or agency which employs him; and (ii) who – (I) holds a public elective office of that State, political subdivision, or agency, (II) is selected by the holder of such an office to be a member of his personal staff, (III) is appointed by such an officeholder to serve on a policy making level, (IV) is an immediate advisor to such an officeholder with respect to the constitutional or legal powers of his office, or (V) is an employee in the legislative brand or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.

(3) For purposes of subsection (u), such term does not include any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s immediate family.

(4) (A) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate government agency, if – (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (ii) such services are not the same type of service which the individual is employed to perform for such public agency.

(B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement.”

(Section 3 (e), Fair Labor Standards Act)

A volunteer is defined thusly:

a) An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4)(A) and (B) of the FLSA and the guidelines in this subpart.

(b) Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

(c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.

(d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

(29 C.F.R. 553.101)

While we cannot provide here every possible example of permissible and non-permissible work, here are some general examples of volunteering.

Permissible:

“Candy striper” in the hospital, literacy tutor, helper in a soup kitchen, builder for Habitat for Humanity, crisis line counselor for domestic violence or rape crisis phone hotline.
Why?
These positions are “pure” volunteer activities; they are performed as acts of charity to benefit the community. They do not displace an American worker, and they are not usually performed by someone who is paid for the service.

A person skilled in computer programming volunteers his/her services to a nonprofit/charitable organization such as a substance abuse counseling center to help them design a computer based intake system to log their calls.
Why?
While the "work" of computer programming would normally be a paid activity, note that in this circumstance it is performed for a nonprofit/charitable organization which traditionally depends on "gifts in kind" (items, resources, or services donated) to conduct its business. The programming is a gift of time and talent to an organization that depends on such gifts, with no expectation of payment or a future job.

Not permissible:

The director of a local non-profit, such as a literacy organization, soup kitchen, or domestic violence shelter, if that position is usually paid.
Why?
Even if the position is for a non-profit organization that engages in charitable work, if the position is usually a paid one, volunteering as an international student is not permissible. To volunteer in a position that is usually paid would be considered to be unauthorized employment.

Unpaid work in a company to gain on-site job experience, if the activities/responsibilities would usually be paid.
Why?
Again, if the activities/responsibilities would normally be performed by a paid worker, this could be considered a violation of the Fair Labor Standards Act and immigration law. For example, “volunteering” as a lab technician in a company in order to gain work experience in that field if a paid worker does the same thing. The only time that this would be acceptable is in a true “training program,” in which the person is closely supervised and the employer is getting no measurable “work” from the activities.

It is not always a simple yes or no answer, as it may depend on the requirements set forth in the activity, the benefit to the person conducting the activity or to you, and how USCIS or the IRS may view the activity. We do not believe, for example, that participating as the subject in a research study or as part of a focus group, to be employment in and of itself, but caution students who wish to engage in such activities. You will need to ask the person conducting the activity in which you wish to engage, an immigration attorney, and perhaps a tax official questions such as “Is this employment (whether paid/unpaid/volunteer)?” and “Is this training/internship (whether paid/unpaid/volunteer)?” to help determine if the activity requires specific authorization in order for you to legally engage in the activity. Please note, if the activity is considered employment, internship, or other forms of training, you will only be able to engage in the activity if you are eligible to apply for and receive Curricular Practical Training (CPT) authorization as an F1, prior to the start of the employment/internship/training/etc.

Please click the links below to read the information and also to listen to a podcast made available by the Klasko Immigration Partners, LLP law firm. Read and listen to the information/podcast in its entirety, as they are insightful as to how USCIS may consider the activity in which you wish to engage. This will provide you some additional information relevant to your question from an immigration attorney perspective.

• Podcast: https://omny.fm/shows/statutes-of-liberty/episode-12-avoiding-status-violations-in-the-side
  • Pay close attention to the scenarios mentioned, the gray areas discussed, and the topic of frequency of activity
• Infographic: https://www.klaskolaw.com/uncategorized/avoiding-status-violations-in-the-side-gig-economy/
  • Scenarios which may or may not likely be considered employment.

Click here for some additional scenarios either presented in the podcast or which we have previously encountered which may or may not likely be employment, and some questions to consider in some of the scenarios. The information contained in the podcast and in this email does not to constitute direct legal advice or response to any scenario listed below, but is for information purposes only. Also note, consequences of engaging in activity which USCIS may consider employment may not be immediate, but may factor in when you apply for a benefit such as OPT or Change of Status to H1B, Permanent Residency, etc. Staying out of the gray areas is always in your best interest; seek counsel before engaging in such activities. Please refer to the information we have made available at Curricular Practical Training (CPT); if an activity may be able to qualify for CPT, it is always safest to apply for and receive CPT authorization prior to engaging in the activity. Not all activities qualify and you may not yet be eligible to apply for CPT.

US student visa regulations may prevent NIL compensation for international students while in the US and there may also be tax implications.  Therefore, international student-athletes must not enter into any NIL agreements without the guidance from the University of Florida International Students Services office to guard against any potential immigration issues. International students enrolled at UF holding an F-1 visa may not be employed by an entity outside of UF without specific authorization on their I-20 by their F-1 Advisor or from USCIS via an employment authorization document. Unfortunately, it is rare that an NIL activity will qualify for authorization. As a result, all NIL opportunities conducted while in the United States in F-1 immigration status would potentially, and likely, violate US immigration law. Student-athletes, prospective student-athletes, or school officials who have questions may write to the U.S. Student and Exchange Visitor Program at SEVP@ice.dhs.gov.

Yes, when an international student-athlete is in their home country they may receive compensation for services from a US company. US employment and tax laws are based on the physical location of the individual.

International student-athletes should confirm with the UFIC that they are outside of the US to properly document their physical location while conducting NIL activities. Provide your I-94 with Travel History, flight itinerary, and port of entry stamp showing abroad.

Yes, when an international student-athlete is in their home country they may receive compensation for services from a foreign country.

International student-athletes should confirm with the UFIC that they are outside of the US to properly document their physical location while conducting NIL activities. Provide your I-94 with Travel History, flight itinerary, and port of entry stamp showing abroad.

No, the international student-athlete would need to cease all services for that business once in the US on an F-1 visa.

Yes, UAA policy requests that all student-athletes report all NIL activities to UAA Athletics Compliance. The form can be accessed in the Teamworks app.

No, even if the funds will be directly deposited to the student’s foreign account, the international student-athlete cannot engage in services for a business or company while in the US on an F-1 visa, without proper authorization.

It depends. The NIL activity must be able to qualify for Curricular Practical Training (CPT) or Standard Optional Practical Training (OPT) in order for the student to be able to apply for CPT or OPT. Review the information provided at the links. Unfortunately, it is rare that an NIL activity will qualify for authorization. As a result, all NIL opportunities conducted while in the United States in F-1 immigration status would potentially, and likely, violate US immigration law. F-1 international student-athletes must not enter into any NIL agreements without the guidance from the University of Florida International Students Services office to guard against any potential immigration issues.