Unpaid Internships on F-1 OPT Considered “Unemployment”

In a recent and concerning adjudication trend, the Nebraska Service Center (NSC) of the U.S. Citizenship and Immigration Services (USCIS) has begun denying F-1 optional practical training (OPT) STEM extension applications filed by students who engaged in employment as unpaid interns during the initial 12 months of OPT. This interpretation is contrary to the policy guidance issued by the Student and Exchange Visitor Program (SEVP). Attempts are being made to have the NSC reverse course on this policy change, but it is unclear at the time of this writing whether these efforts will be successful. In the meantime, this sudden policy change has left many F-1 students with serious immigration troubles.

STEM OPT Extension Denials Contradict SEVP Policy

Attorneys at the Murthy Law Firm have recently been contacted by a number of students whose STEM OPT extension requests were denied. The denials were solely based upon determinations by the USCIS that the applicants exceeded the maximum 90-day unemployment period during the initial OPT. In these cases, the students submitted evidence to the USCIS documenting their work as unpaid interns during all or part of the OPT period.

NSC Suddenly Changes Position on Unpaid Employment

The denials issued by the NSC state that unpaid employment does not constitute employment for the purposes of OPT. The NSC based this determination on the definition of employment found in the Immigration Reform and Control Act (IRCA) of 1986, which defines employment as work for wages or other remuneration. However, IRCA is specifically limited in its application to an employer’s obligation with regard to the completion of the I-9 form. Further, in the H1B context, the USCIS utilizes a different case law-based definition of “employer,” which focuses on the “right to control” the worker. Therefore, it appears that the USCIS is inconsistently picking and choosing from the various definitions of employment when setting policies and interpretations.

SEVP Guidance Allows Unpaid Internship on OPT

In April 2008, more than 20 years after the passage of IRCA, the USCIS issued a new Interim Final Rule, introducing the 90-day unemployment maximum for the initial period of OPT. However, this rule did not define permissible types of employment. Therefore, in order to clarify this ambiguity, SEVP responded by issuing policy guidance on OPT, which stated that unpaid internships and volunteering are permissible types of employment on OPT. This policy had been followed uniformly by the USCIS until the NCS changed its position suddenly in the fall of 2013.

NSC Makes Policy Reversal

The STEM OPT denials, which so far appear to be limited to applications filed with the NSC, are based on the determination that unpaid internships do not qualify as “employment” for OPT purposes. There was no advance warning or other public notification by the NSC regarding this abrupt reversal of policy. Accordingly, designated school officials (DSOs), students, and attorneys – including attorneys from the Murthy Law Firm – have reached out to the NSC in an effort to urge reconsideration of this drastic change in position. The director of the NSC responded via eMail to the Murthy Law Firm, indicating that the NSC would not change its position, as it is based on the definition of employment found in the law applicable to employer’s I-9 obligations.

Murthy Takes Action by Contacting NSC, NAFSA, and AILA

Upon receipt of the eMail response from the NSC Director, the Murthy Law Firm contacted the American Immigration Lawyers Association (AILA) and NAFSA: Association of International Educators, two national professional organizations that advocate for consistency and fairness in the application of immigration law on behalf of immigrants, including F-1 students. Both AILA and NAFSA are discussing this matter with the USCIS and SEVP, urging the government entities to reconcile their positions. However, as of this writing, the NSC continues to deny OPT STEM extensions for the reasons provided above.

Possible Options for Affected F-1 Students

A student who has received a denial of a STEM OPT application based on the newly created policy by the NSC may wish to fight the decision by filing a motion to reopen and/or reconsider. But, it may be necessary to explore other options, such as departing the United States and reentering as a new F-1 student or in some other appropriate status. Enrolling in a new program of study and requesting reinstatement may also be an option. Of course, depending upon an individual’s specific circumstances, other options may exist. Students should speak with a school DSO or consult with a knowledgeable attorney before committing to a plan of action.

Conclusion

The recent denials of applications filed by F-1 students on OPT are both unfortunate and unexpected. If NAFSA and AILA are unable to persuade the NSC to reconsider its position, the situation ultimately may need to be resolved via class action lawsuits in federal court. Meanwhile, however, students with questions about how best to proceed are encouraged to schedule a consultation with an attorney at the Murthy Law Firm.

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