Considerations for Engaging in Volunteer/Unpaid Activities

Prior to engaging in volunteer activities, F-1 and J-1 students should ensure that they do not violate their F-1 and J-1 immigration status by engaging in unpaid activities that still require off-campus employment authorization. It is important to note the difference between volunteering and engaging in an unpaid internship.

Code of Federal Regulations define volunteering as:

§ 553.101 “Volunteer” defined. (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.

Volunteerism is not to be confused for an unpaid internship. Unpaid internships require work authorization from ISSO prior to engagement.

Engaging in unpaid internships REQUIRES ISSO authorization and the issuance of a new Form I-20/DS-2019. Unpaid internships must not violate the Department of Labor (DOL) laws. The DOL is particularly concerned with employers not compensating individuals for employment that should otherwise be paid. The Department of Labor provides a series of six factors referred to as a “Test for Unpaid Interns and Students”

The Test for Unpaid Interns and Students Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA.2 In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. 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.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. 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.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Source: Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act