Many international students present in the U.S. on an F-1 visa are eager to jump out of the classroom into the U.S. workforce. After graduation, those international students—many of whom come from less fortunate circumstances—seek to give back to the local U.S. community that provided so much opportunity, and many of this writer’s nonprofit organization clients—religious organizations, churches, and social service providers—are likewise eager to bring those international students into the workplace fold.
Pause.
An F-1 visa is not likely an appropriate vehicle for an international student’s post-graduation work in the U.S.
Student visas (F-1) are authorized by United States Code (8 U.S.C. § 1101(a)(15)(F)) – “an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study . . . at an established [and qualified and approved] college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States . . .”) (emphasis added).
The Regulations (specifically, 8 C.F.R. 214.2(F)(9)) authorize qualified and limited conditions when an F-1 visa student may work—on campus and off campus—during the student’s course of study. Also, if the student’s spouse is present on an F-2 visa (as the spouse of an F-1 visa holder), “[t]he F-2 spouse and children of an F-1 student may not accept employment.” See 8 C.F.R. 214.2(F)(15)(i).
Thus, an individual who is present in the U.S. on an F-1 visa and has completed the applicable course study is not authorized to work in the U.S., absent appropriate approval.
See authorization information here.
The Regulations governing authorization for F-1 visas allow for qualified “optional practical training” (OPT) for up to 14 months (subject to conditions for extension up to 24 months) following completion of the course of study, but the student must apply for authorization for temporary employment for optional practical training directly related to the student’s major area of study. “The student may not begin optional practical training until the date indicated on his or her employment authorization document, Form I-766.” See 8 C.F.R. 214.2(F)(10)(ii) (providing further that an F-1 student may engage in OPT “[a]fter completion of the course of study . . .”) (emphasis added). See OPT information here; Temporary (Nonimmigrant) Workers | USCIS at footnote 1 (“Only a few nonimmigrant classifications allow you to work in this country without an employer having first filed a petition on your behalf. Such classifications include the nonimmigrant E-1, E-2, E-3 and TN classifications, as well as, in certain instances, the F-1 and M-1 student and J-1 exchange visitor classifications.”).
This is just one high-level area to consider for an F-1 visa student (or the potential employer of same). The U.S. Citizenship and Immigration Services Agency, as well as the Department of State each, provide a wealth of guidance on this subject. But, there are many nuances within the actual Regulations (i.e., the law) that may create legal impediments, or that may provide a legal avenue for an opportunity for the international students in the U.S. on study who wants to give back in the form of employment. With careful attention to the permissions afforded by the Regulations, an international student and a local employer may strategically and lawfully ensure that a potential employer-employee relationship remains within the guardrails constructed by U.S. law.
International and Offshore Tax Compliance Attorneys
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