F-1 OPT UNPAID INTERN—TRAINEE (Maintain Nonimmigrant Status With WHO MENTORS YOU INC.)

For the F-1 OPT EAD holder, the 90-day unemployment clock is a drumbeat calling you toward your future. You earned your U.S. degree; now you must protect your status through qualifying service. Every sunrise is a new chance to secure your place in the United States. You have not come this far to let a timer define you.

The Federal Definition of "Employment"

Many students believe only high-paying roles with large companies stop the clock. However, SEVP Policy Guidance 1004-03 clarifies that unpaid service can be qualifying employment. To remain safe, you must choose the correct path. Only specific forms of engagement stop the unemployment clock. This post discusses Path 3: F-1 OPT UNPAID INTERN - TRAINEE.

Since F-1 OPT Students have finished a college or university, FLSA Fact Sheet #71 does not apply because the traditional "Primary Beneficiary Test" for students often relies on:

• The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
• The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

For this reason, this program utilizes language from 29 CFR 541.705 (training for employment) in a capacity that is higher than an entry-level position. By drawing from 22 CFR 62.22 for trainees, specific requirements ensure that trainees receive hands-on experience in their specific fields of study/expertise and do not merely participate in a program for a minimum of 20 hours per week.

Engagement is achieved through participation in structured and guided work-based training programs designed to improve knowledge of American techniques, methodologies, and technology. Such training programs are also intended to increase understanding of American culture and society and to enhance Americans' knowledge of foreign cultures and skills through an open interchange of ideas. A key goal, aligned with the Fulbright-Hays Act, is that participants will return to their home countries and share their experiences with their countrymen.

Standards of the Program

The following standards are strictly maintained:

• The training, even though it includes actual operation of the facilities of the 501(c)(3) tax-exempt organization, is similar to that which would be given in a vocational school;
• The training is for the benefit of the trainees;
• The trainees do not displace regular employees, but work under close supervision;
• The 501(c)(3) tax-exempt organization that provides the training receives no immediate advantage from the [IRS NTEE] activities of the trainees and, on occasion, the organization's operations may even be impeded;
• The trainees are not necessarily entitled to a USCIS Form I-129 petition for part-time H-1B cap-exempt employment authorization to become eligible for full-time concurrent employment with any other US employer at the conclusion of the training period; and
• Both the 501(c)(3) tax-exempt organization and the trainees understand that the trainees are not entitled to wages for the time spent in training.

You aren't alone in this journey. Let your ambition lead you to the door of opportunity held open by WHO MENTORS YOU INC., a Delaware Charitable Nonstock Corporation, recognized by the IRS as a 509(a)(2) publicly supported 501(c)(3) tax-exempt organization.

Advancing Funds for Operations

WHO MENTORS YOU INC. is a Delaware Charitable Nonstock Corporation recognized by the IRS as a 509(a)(2) and 501(c)(3) tax-exempt organization. To maintain the supervision and accountability required by the Van Dusen standards, we utilize program service revenue.

"Our interpretation of the statute... promotes the public purpose of encouraging... significant support of [a 501(c)(3) organization] by volunteers of substantial means who advance their own funds for the operation of [the] organization." — Rockefeller v. Comm'r, 676 F.2d 35, 42 (2d Cir. 1982)

Do not delay! What counts as time unemployed? Each day (including weekends [and federal holidays]) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD.

IRS Rev. Rul. 76-205, 1976-1 C.B. 154, holds that a 501(c)(3) organization can aid immigrants (including nonimmigrants) in overcoming social, cultural, and economic problems by providing personal counseling, referrals to helpful agencies (like the county clerk or the Secretary of State), social and recreational activities, instructing in English, and facilitating a free online zoom session containing information on maintaining nonimmigrant status is operated exclusively for charitable and educational purposes and qualifies for exemption under section 501(c)(3) of the Code.