Employment Options For Students, Part 1 of 4
With the roll out of the new Student and Exchange Visitor Information System (SEVIS) and the recent release of new F-1, M-1 and J-1 regulations, the subject of immigration for students grows more complicated. And one of the more complicated issues involving student visas is the ability to work while on a student visa. For the next few weeks, we will examine this topic closely in our ABC's column.
There are several ways one can legally work as an F-1 student. The easiest way for a student to legally work is to take a job on campus. On-campus employment must either be performed on the school's premises (including at non-university businesses operating on campus, like restaurants or the school bookstore) or an off-campus location which is educationally affiliated with the school. Note, however, that employment with an outside company on campus will not work if that company does not provide services directly to students. So while a restaurant will work, for example, employment with a construction company on the campus will not.
Work performed off-campus for an educational affiliation must be associated with the school's established curriculum or related to certain government-funded research projects. And the work must be an integral part of the program of study.
On-campus employment is limited to 20 hours per week while classes are in session. Full-time work is permitted during holidays or school vacation periods. The BCIS has the discretion to expand the authorized period of time beyond 20 hours while school is in session if the BCIS believes there are emergent circumstances justifying this. If the BCIS wishes to allow this, it will publish a notice in the Federal Register. A student must still demonstrate to a designated school official (DSO) that the employment is necessary to avoid a severe economic hardship resulting from the emergency circumstance. And the DSO must then annotate the I-20 in accordance with the Federal Register notice.
The INS did, in fact, exercise its discretion back in 1998 when it authorized students from Indonesia, South Korea, Malaysia, Thailand and the Philippines to work more than 20 hours per week. This was the beginning of the so-called "Asian Flu," when many counties in that region experienced a rapid devaluation of their currencies and students from those countries were suddenly facing dire economic circumstances. Students were not permitted to reduce their course loads, however.
Students who have completed their courses of study are not permitted to engage in on-campus work unless they have been approved for practical training (discussed later in this article). Thus, how a school defines the completion of one's course of studies can be very important if one is to avoid a disruption of employment (such as those engaged in graduate assistantships). Does the course of study end when one submits a dissertation? Does it end when the dissertation is defended? Or should it end during the normal exam period for that semester? Schools have varying policies here, and it is important to know that policy so that a practical training application can be appropriately timed.
BCIS regulations state that a student may engage in any on-campus employment which will not displace US residents. However, the BCIS has generally left this issue to the individual school and has not offered additional guidance on its meaning. Some commentators note that the BCIS is likely only to get involved if there is an actual complaint made (such as by a labor union). However, if students have traditionally filled a job, then it is typically considered appropriate for an F-1 or M-1 student.
For a student in the course of a transfer, employment on campus is permitted only at the school having jurisdiction over the student's SEVIS record. And an initial entry F-1 student is not permitted to work on campus more than 30 days before the start of classes.
Universities are required, like any other employer, to verify employment authorization before they may begin employing a student on campus. That means that the school must comply with I-9 requirements. One issue that can be a sticking point is whether the employee possesses a Social Security Number. Many employers, including universities, require an employee to have a Social Security Number. Note, however, that this is not a requirement for completing an I-9 form. An employing university need not require a SSN as long as it does not discriminate against American workers in dropping this requirement. A student must still submit documentation to verify identity (such as a passport) and work authorization (typically an I-20 and I-94).
So what should the university do regarding employing a student on campus who does not yet have a SSN? Schools still must withhold taxes by law to cover Social Security. Treasury Regulations allow employees to submit a Social Security Number receipt to an employer so that the employer can begin complying with its payroll obligations. A university going this route should consult with payroll and tax counsel since there are potential reporting headaches associated with not having a SSN.
In the past, the lack of an SSN was not a big problem because the Social Security Administration would typically take only a few days to issue a number. And working on campus was a valid reason to request a number. Since 9/11, however, the SSA verifies immigration documents and status with the BCIS before issuing a number and they also check with schools to determine full-time attendance and eligibility for on-campus work authorization. These new procedures can often mean a delay of several weeks in receiving a SSN.
Next week: Off Campus Work Authorization
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.