There are many employers who would like to hire foreign graduates and students as interns, but they hesitate because they are not sure what obligations will be required of them. Contrary to popular belief, hiring foreign graduates or students is not at all as challenging as it looks.
Employers and companies based in the United States have a variety of US intern visa options that they can choose from. Several visa types for US internships have been provided below for the benefit of both US companies interested in hiring foreign students and foreign nationals who are interested in taking advantage of an internship in the United States.
Employing F-1 Students As Interns
Students who are classified as F-1 in the United States are not allowed to work off of their campus during their first academic year. However, they are eligible for employment off the campus during the following years through “practical training”. There are two main forms of practical training in current use—Optional Practical Training and Curricular Practical Training.
Curricular Practical Training
Curricular Practical Training (CPT) is defined as an internship or cooperative education program offered by employers through a cooperative agreement with the school which the foreign student attends. The internship or the appointment is required to be part of the curriculum the student is studying at his or her college. The Designated School Official listed on the student’s I-20 form must endorse the student prior to the student’s internship. Employers who are interested in hiring foreign nationals as interns should communicate with the school in order to ensure that the internship opportunity is offered as part of the school’s curriculum.
Optional Practical Training
Optional Practice Training (OPT) is a temporary employment opportunity that relates directly to the F-1 student’s primary area of study. Optional Practice Training is designed to offer real-world experience for the student in his or her major. Typically, Optional Practice Training is not permitted to exceed a year in duration. In some circumstances, STEM students are allowed to extend their training period for an additional 17-month period. The student will typically receive authorization to either engage in Optional Practice Training during his or her study period (known as pre-completion OPT) or after the completion of studies (known as post-completion OPT).
A student who is maintaining an F-1 student visa will be required to get an Employment Authorization Document, issued by the USCIS. This document is used to establish the identity of the student and to authorize his or her employment. Foreign national students will not be able to be employed unless they have an Employment Authorization Document, which is used to determine the starting date and ending date of any employment authorization. The student will need to have the authorization before they begin actual employment, but it is not necessary that they have the document before being offered a job. Employers who want to hire foreign students on Optional Practice Training will need to record the Alien card number, Registration number and expiration date under “List A” in Section 2 of the I-9 form. After the Employment Authorization Document expires, the employer will need to re-verify the employment authorization of the foreign national. This can be found in Section 3 of the I-9.
Additional Information for Employers
Employers who are interested in hiring foreign students under pre-completion Optional Practical Training during the academic year must be aware that there are certain restrictions on the number of hours the F-1 student is allowed to work off of his or her campus during the academic semester. In addition, the pre-completion Optional Practical Training must relate directly to the student’s chosen major course of study. F-1 students are allowed to work up to 20 hours out of every week off of the school campus while his or her school is in session. When school is not in session, and during the student’s vacation period, he or she is allowed to work full time.
F-1 students are allowed to engage in post-completion Optional Practical Training following the completion of their studies. It is important for the employer to remember that the post-completion Optional Practical Training must relate directly to the student’s course of study in order for the proceedings to be valid and legal. In addition, students who worked full time on Curricular Practical Training for one or more may not be eligible for Optional Practice Training.
It’s important to note that the foreign student must be maintaining his or her F-1 status in order to pursue practical training in the United States. Employers who are interested in employing an F-1 student will need to transcribe the numbers of the foreign passport and the I-94 in Section 2 of Form I-9, under “List A”. Additionally, the employer will need to write the SEVIS number and the date of the program’s expiration (from Form I-20) in the margin of the I-9, next to Section 2.
Key Facts to Remember
Two important things to remember when hiring foreign students have been listed below.
- While F-1 students are usually authorized to perform up to 12 months of Optional Practical Training, students who earn degrees in science, technology, engineering or mathematics (STEM) degrees, and who receive a grant of post-completion Optional Practical Training, can apply for a 17 month extension of their work permit, thereby allowing them to work for a total of 29 months under the practice training program.
- The employer of an F-1 student must be currently enrolled in E-verify in order for the student to be able to receive the 17 month STEM extension.
Employing J-1 Students
When hiring foreign students on a J-1 visa, it’s important to remember that a home residency requirement of two years is applicable to some J-1 visitors. Interns who are subject to this requirement will need to return to their home country for a two year period before they can get another nonimmigrant visa or become a permanent resident. There are no exceptions permitted if the foreigner is subject to the requirement of home residency, but he or she might be able to obtain a J-1 waiver of the requirement.
Foreign students in the United States as J-1 students are often eligible for employment in areas related the academic field of study they have chosen under “Academic Training”. Academic Training can be authorized by the sponsor of the student’s J-1 program and does not need adjudication by the USCIS. Academic Training can occur during and after the completion of any studies. The duration tends to vary, but is not allowed to be any longer than the duration of the academic program. For degree programs, the maximum period is 18 months. This training tends to be part time during the academic year, but can be done either full time or part time during holidays, vacations and other periods when the student’s school is not in session.
Employers who are interested in employing a foreign national student who is getting a degree from outside the United States, or a foreign national who graduated from a non-US college or university may find that the J-1 training program or internship is appropriate in their situation.
J-1 Internship and Training Programs
The J-1 internship program is designed to allow college and university students from outside the United States to come the US as worker in order to receive exposure to the culture of the United States and to obtain real-world experience in business practices in the United States in their given occupations. Under the J-1 internship program, the foreign student is allowed to work in the United States for a maximum of 12 months.
The J-1 training program is designed for persons who have graduated from a professional certificate program or college and have had between one and five years experience abroad to come the US to get exposed to the culture of the United States and to obtain a hands on work experience in their chosen occupational field in an American setting. Under the J-1 training, foreign persons are allowed to work in the United States for as long as 18 months.
If an employer is interested in employing a foreign national under a J-1 training or internship program, he or she must contact a “Designated Sponsor”. Designated Sponsors are organizations that administer the foreign exchange program and connect employers with foreign national participants of the J-1 program.
According to Federal law regarding the J-1 internship program, employers are allowed to employ foreign nationals if and only if they are currently enrolled in or pursuing studies outside the United States or if they have graduated from a university or college in a country other than the United states no more than 12 months prior to the start of the start date of the internship program.
Additional Information on the J-1 Training Program
In regard to the J-1 training program, employers in the United States are allowed to employ foreign nationals as trainees if they have graduated from a university or college, or have a professional certificate and one year of experience abroad or they have five years of related work experience abroad. Under the J-1 training or internship program, foreign nationals are not permitted to work in positions that require more than 20 percent office support or clerical work, in casual labor or unskilled positions, in positions that involve or require care of children or the elderly, or in positions that involve contact with or care of medical patients.
Completion of Internship Period
It is common for employers to desire to offer full time employment to exceptionally skilled interns upon completion of the internship period. If you are an employer who wants to do this, you will need to be aware of several additional factors in order to ensure that there are no breaks in the employment of your interns and that the functions and goals of the company are not disrupted or altered.
In regards to F-1 students who are on Optional Practical Training, the authorization of employment ends on the date indicated on the Employment Authorization Document. If the employee wants to continue employment, he or she will need to join with the employer and put in a petition for a change of the foreign nationals status. The most common change is the H-1B visa status. A great tip to know is that the USCIS has created a provision that allows foreign students whose Optional Practical Training period is about to expire to continue employment at their given job site if they file an H-1B petition before their training period ends. This practice is commonly known as “Cap-Gap”.
In regards to J-1 students on trainee or intern visas, or J-1 students on Academic Training, the employer will need to be aware that a residency period of two years may be applicable to some J-1 individuals. Interns who are bound by this requirement will have to return home to their native land at the end of their intern or trainee program. They will not be able to change their visa to H status until they have spent at least two years out of the United States or have gained a J-1 waiver of the residency requirement, which would affect any plans the employer has for continuing to employ them after the internship period has terminated. If the J-1 visa holder is not bound by the two year residency requirement, the employer and the foreigner must put in a petition to change the foreign national’s status. While J-1 students can change their status to H1B like F-1 students, there is no special cap-gap provision. The termination of the J-1 and the commencement of the H-1B must be perfectly timed so that there are no breaks in the employment.
Changing Status From Optional Practical Training to H-1B
The employer should be aware of the following facts when commencing a change of status for an international student from F-1 to H1B:
- The H1B needs to be filed with the proper authorities before the termination of the students Optional Practice Training period. Otherwise, the student may not be able to work until the H1B is processed.
- The H1B program has a “cap” or quota of 65,000 per fiscal year, which begins on October 1 of each respective year.
It’s a good idea to file for the H1B visa as soon as possible, which is April 1 of the calendar year. Hiring a legal professional to help when filing an H1B visa is strongly recommended.
Employers and companies based in the United States who are interested in hiring recent graduates and students at foreign schools have several internship programs that they can choose from. The situation of both the foreign student and the employer must be analyzed carefully before determining what would be the best internship visa for them.
Contact our law firm by phone or online right away for a complimentary consultation to determine the best visa for you. We will carefully evaluate your situation and give you excellent advice based on our near perfect success rating.
Beeraj Patel, Esq.
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