… my employer filed an H1B petition on my behalf, requesting a status change from F-1 to H1B. However, the USCIS issued a request for evidence (RFE) asking to show proof that I have been maintaining status by being gainfully employed while on OPT. I heard that working on OPT without pay as an intern or volunteer is permitted. Will I be able to show that my unpaid internship complied with the OPT requirements?
While it is true that unpaid OPT employment as a volunteer or intern generally is permitted, it should not violate the Fair Labor Standards Act (FLSA). In its Fact Sheet #71 regarding internships, the Department of Labor (DOL) has stated that “unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.”
Based on your description of your internship, you had an expectation that you will be hired at the end of your job training. Therefore, it appears that you should have received monetary compensation while being trained in order to comply with the OPT requirements. (27.Mar.2015)
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