ON-CAMPUS EMPLOYMENT

by Paula Singer, Esq. 

Under the immigration rules, F-1 and J-1 status students are authorized to work on the campus of the institution that they are authorized to attend for a maximum of 20 hours a week while classes are in session. (The institution they are authorized to attend is the institution having jurisdiction over the student’s Student and Exchange Visitor Information System (SEVIS) record.) Students may work full-time on campus when classes are not in session, such as during summer vacation, if they intend to enroll at the institution for the next regular academic year, term, or session. Students may not begin on-campus employment more than 30 days before the actual start of classes.

The School as Employer
On-campus employment is “incident to status” and does not require authorization. When the foreign student’s school is the employer, the only restriction is that the employment cannot “displace United States residents.” Typical student work in the school’s library, bookstore, cafeterias, or administrative offices is not considered displacement of a United States resident. Student employment may also include teaching or research assistantships.

Other On-campus Employers
Generally, work that is on the premises of the institution where the student is enrolled meets the definition of being “on-campus.” However, it is not unusual to have the school’s bookstore or cafeterias operated by commercial entities in which case employment is with that entity rather than with the school.

Other employers operating on the premises of the school can qualify as on-campus employers if they give benefits to the students, faculty, and/or alumni of the institution. For example, cafeterias that provide meals at a discount for students would be considered on-campus employers. Employment on the school’s premises for employers that provide no direct student benefits, such as work at a construction project on the campus of their institution, does not qualify as on-campus employment. Therefore, a McDonald’s or Pizza Hut operating on the school’s premises that provides no benefit to students other than convenience would not qualify as on-campus employment.

On-campus Employment Not On the School’s Premises
Some employment that is physically not on the campus of the institution where the student is enrolled may still qualify as “on-campus.” Employment that is at an off-campus location that is educationally affiliated with the foreign student’s school of enrollment may qualify as on-campus employment. Under the immigration rules, such affiliated off-campus locations meet the definition of being “on-campus” if the affiliated entity is:

• Associated with the school’s established curriculum or
• Related to contractually funded research projects at the post-graduate level

In either case, the employment must be an integral part of the student’s educational program.

Because many professors have contract-based research grants, which are not paid through the institution, the immigration service expanded the definition of on-campus employment. Because graduate students conducting research under the supervision of such professors at their institutions are similar graduate students with research assistantships, the immigration service allows this employment to be treated as on-campus employment.

Other Off-campus Employment
Employment that fails to meet the definition of on-campus employment is considered off-campus employment. Foreign students may work off-campus only if they have obtained the proper authorization for the employment as follows:

• F-1 students may be employed off-campus for “economic hardship” provided they have first obtained an employment authorization document (EAD) from the immigration service.
• F-1 students may engage in off-campus optional practical training (OPT) after first obtaining an EAD.
• J-1 students may only work off-campus if the employment they have received prior written authorization from their Responsible Officer (RO). Eligible J-1 Exchange Visitors may also engage in off-campus “academic training” with prior written authorization from their RO.
• M-1 students may engage in off-campus OPT after first obtaining an EAD.

F-1 students may also engage in curricular practical training (CPT) with authorization from their Designated School Official. CPT typically is on-campus, but sometimes takes place at another institution.

Unauthorized Employment
Foreign students who work more than 20 hours a week while school is in session, or who work when or where they are unauthorized to work, are in violation of their student status. Because of the potentially serious immigration ramifications to foreign students who work without authorization, institutions need to be diligent in their oversight of their foreign students’ employment situations.

Paula Singer, Esq., Co-founder and Chairman of Windstar Technologies, Inc. and partner in the tax law firm, Vacovec, Mayotte & Singer, Newton, MA has over 25 years of experience providing advice and compliance services to individuals, their employers, and payors on cross-border employment matters.

Watch for Volume 2, Number 6 for a discussion on “Off-Campus Employment.”

Q. We have an F-1 foreign student from another institution that we would like to pay an honorarium of $200. Can an F-1 student that has no affiliation with our institution be paid an honorarium?

A. Generally, no. An honorarium is self-employment income. F-1 students cannot engage in any self-employment activities unless they have an unrestricted EAD such as for economic hardship or OPT with one exception. F-1 students may engage in on-campus self-employment activities when such work provided by all students is treated by the institution as self-employment services, such as tutoring or giving tennis lessons.

Windstar Welcomes Aboard the Following New Clients:

Buck Institute for Age Research
Hanover College
Los Angeles Biomedical Research Institute
Mount Ida College
West Virginia Research Corporation

Year-End NRA Training

The important end-of-year NRA training is scheduled from November 29 to December 2 at the Boston Marriott Newton. Topics include “A Strategy for Preparing and Submitting 1042 and 1042-S Forms."

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Windstar Publishing, Inc. To Launch New Series

Earlier this month, Windstar Publishing, Inc. announced the introduction of Cross-Winds, a new series of books about various foreign national, tax, and compliance issues. The first book in the series, “What You Need to Know About Exchange Visitors” will be published in October. For more information, e-mail editor@windstar.com.

Windstar Will Dock at This Upcoming Trade Show

APA Educational Institutions Payroll Conference
Hollywood, CA
October 16-19, 2005

Greentree Gazette Interviews Gary & Paula Singer

The July issue of The Greentree Gazette featured an article on college and university business offices that included comments by Gary & Paula Singer.

©Copyright 2005 by Windstar Technologies, Inc. Windstar reserves all rights to this electronic material. Information contained in this publication is based on the best information available at the time of publication.  While believing the information in this publication to be accurate, Windstar accepts no legal responsibility for its accuracy.