Is it true I need an EAD to do an UNPAID internship?

[dirtyweebesom 8]

Hello,

I am currently in the US on an expired F1 visa (OPT expired last month) and I am just about to send off my application to adjust my status to conditional permanent resident after marrying a US citizen in April.

I am currently a student teacher, in an alternative certification program, and I should be looking for a job because I would get certified after working as a teacher of record for a school year. Of course, there is very little point in my applying for a job because I no longer have a valid work permit, and God only knows when my new EAD will show up.

You may be wondering why I didn't send off my application much earlier. Well, to be frank, it was because I just could not afford the $1,335. It has taken me four months to save up the money.

Fortunately, there is another route to certification for those students who do not find a job (teaching jobs are thin on the ground in this economic climate) or who, like me, cannot find a job. The other route is that we can choose to do an UNPAID three-month internship (in fact, not only is it unpaid but I would also be paying the teaching program tuition fees every month!).

I have been informed by the program, however, that I would also need a work permit to do this UNPAID internship. Can someone please advise me if this is true? I just spoke to an immigration attorney and he said that he does not understand why they said this given that I would be receiving absolutely no compensation whatsoever. He said that this may just be a rule the program put in place. If this is the case, would it be advisable to hire an attorney to help me do the internship?

If I can't do the internship, my only other option would be to re-apply to the program for NEXT YEAR but this is not a very appealing option, as I want to get certified in June 2010, and don't want to wait until 2011! Also, my teacher and I have a huge personality clash, so I wouldn't be surprised if I was refused entry to the program (despite the $1,300 I've already given them, and the 8 months of work I have already put in).

I'd appreciate any help you can give me, as I am very passionate about teaching, and I want to get certified!

Thanks!

[dirtyweebesom 8]

PS/ I should also clarify that this unpaid internship would not lead to a full-time position in a school. If one were to open up, then, yes, I would be in a strong position to get the job given that I had already spent three months in the school, and would know the students, but if this happened, it would just be a lucky break.

[Otto 83]

I can't see why you'd need the EAD (at least it isn't clear why) but it is their program.

Edited August 13, 2009 by Otto und Karin

[Miranda&John 0]

I think it is probably true that you need EAD. I am here on a J-1 visa (currently) and doing an unpaid internship. I know that under this visa I can ONLY work for my current employer and I am NOT allowed to volunteer for any other organization...

[Usui Takumi 1,562]

Officially...Yes you do need the EAD because you are still receiving a benefit from the internship, both in terms of a future job and certification.

[dirtyweebesom 8]

Thanks for all your input so far, everybody.

I'm just about to email an immigration attorney assoicated with the local school district about this matter, so I will let you know what he says.

In the event that I do need an EAD for this unpaid internship, does anybody know what my chances would be to get my work permit expedited (I'd need it by the middle of next month (September)...maybe the end if I'm really lucky - and I'll only be sending off my application today or tomorrow!)?

I'm going to send a cover letter along with my I-765 explaining that not having a work permit would set me back a year in the certification process (or perhaps completely, if I'm not allowed back into the program) and cause me great financial hardship. I'm also going to explain that I want to work with at-risk students in a high-needs school (not sure if that will make any difference because at least it will show I want to help America's vulnerable youth!).

I'm also going to send off a letter to my congressman asking him for help.

Has anybody ever heard of someone getting a work permit more quickly?

Edited August 13, 2009 by dirtyweebesom

[Usui Takumi 1,562]

There is really no way to expedite it. I've attached the following which you might find helpful:

The following describes the U.S. Citizenship & Immigration Service (USCIS) interpretation of the concept of “work” versus “volunteering.”

• A foreign national cannot perform work as a volunteer in a position that would normally be a paid position or if the foreign national believes that some form of compensation will follow. The U.S. Citizenship and Immigration Service (USCIS) views such volunteering as “work” and requires proper employment authorization issued by that agency. This specifically includes volunteering by a foreign national for a trial period leading up to compensated employment.

• [A]n applicant for a change of status may not offer his or her services to a prospective employer, even on a volunteer basis. The employment is unauthorized as long as the alien derives any benefit from it. (Lawrence J. Weinig, INS Deputy Assistant Commissioner for Adjudications, 66 NO. 19 Interpreter Releases 539)

• In addition, the volunteer rule may give rise to a number of potential abuses. For example, may an employer lawfully suggest to an alien that he or she should do a period of 'volunteer' work while the employer is deciding whether or not to file a nonimmigrant visa petition or a labor certification application? Recently, the INS indicated that an applicant for change in nonimmigrant status could not offer his or her services to a prospective employer on a 'volunteer' basis. The INS has stated that: 'If any type of benefit could accrue to the alien, though it may not be wages or fringe benefits, the services will be considered unauthorized employment.' (89-05 Immigr. Briefings 1)

• Volunteer services for a prospective employer constitute unauthorized employment if the alien will ultimately derive some benefit from the work. The ultimate question in most volunteer cases will be: What did the alien expect in return? If he or she expected compensation, reward, or future benefit, then the volunteer work probably violates status. (95-05 Immigr. Briefings 1)

[Anh map 2,098]

There is really no way to expedite it. I've attached the following which you might find helpful:

The following describes the U.S. Citizenship & Immigration Service (USCIS) interpretation of the concept of “work” versus “volunteering.”

• A foreign national cannot perform work as a volunteer in a position that would normally be a paid position or if the foreign national believes that some form of compensation will follow. The U.S. Citizenship and Immigration Service (USCIS) views such volunteering as “work” and requires proper employment authorization issued by that agency. This specifically includes volunteering by a foreign national for a trial period leading up to compensated employment.

• [A]n applicant for a change of status may not offer his or her services to a prospective employer, even on a volunteer basis. The employment is unauthorized as long as the alien derives any benefit from it. (Lawrence J. Weinig, INS Deputy Assistant Commissioner for Adjudications, 66 NO. 19 Interpreter Releases 539)

• In addition, the volunteer rule may give rise to a number of potential abuses. For example, may an employer lawfully suggest to an alien that he or she should do a period of 'volunteer' work while the employer is deciding whether or not to file a nonimmigrant visa petition or a labor certification application? Recently, the INS indicated that an applicant for change in nonimmigrant status could not offer his or her services to a prospective employer on a 'volunteer' basis. The INS has stated that: 'If any type of benefit could accrue to the alien, though it may not be wages or fringe benefits, the services will be considered unauthorized employment.' (89-05 Immigr. Briefings 1)

• Volunteer services for a prospective employer constitute unauthorized employment if the alien will ultimately derive some benefit from the work. The ultimate question in most volunteer cases will be: What did the alien expect in return? If he or she expected compensation, reward, or future benefit, then the volunteer work probably violates status. (95-05 Immigr. Briefings 1)

[dirtyweebesom 8]

Well, after writing a lengthy email to an immigration lawyer, explaining my situation, I got a terse two-word response back:

"Unfortunately.....no".

He didn't say why I couldn't do an unpaid internship without an EAD but, well, at least I have my answer.

It's pretty silly really, as I want to do this internship in an urban, high-needs school, and I don't see how I'd be taking a job away from an American, given that there are hardly people kicking down the doors of inner-city schools to teach in them.

[Old Dominion 26]

The EAD must be issued within 90 days of filing for it, assuming all paperwork is in order. Getting it much earlier would be just luck. As to needing it to do the internship, that is purely the policy of the school system -- to protect it, I assume, against any claims of having 'illegal aliens' on staff.

[dirtyweebesom 8]

Yeah, you are probably right, Old Dominion, that it's just the school district's policy, put in place to protect them from all those "nasty" illegal aliens (perhaps they would do better to emply more illegal aliens given that they seem to be the hardest workers in this society!).

Are you sure that there's no way to expedite the EAD. I was looking around on the USCIS website and found this (at http://www.uscis.gov/portal/site/uscis/men...0045f3d6a1RCRD)

Expedite Requests

1. If an applicant has an urgent need to travel and has already filed an I-131 with the NBC, the applicant or his or her representative should visit the local Field Office by making an InfoPass appointment or call the National Customer Service Center (NCSC) at 1-800-375-5283. The Field Office will consider the merits of the request, and will forward requests that they determine to require expedited handling to designated points of contact at the NBC.

2. If an applicant has not yet filed an I-131 and needs an expedited Advance Parole document, the I-131 may be filed in person at the local Field Office after an InfoPass appointment has been made. IMPORTANT: Note that expedited processing is done at the discretion of the Field Office, based upon the evidence provided by the applicant.

3. If an applicant has an urgent need to have a I-765 application processed to receive an employment authorization document, the applicant must make an InfoPass appointment and visit the local Field Office. The Field Office will determine if the applicant’s situation warrants expedited processing, and, if so, will forward the request to designated NBC points of contact to process and expedite the case.

4. Please keep in mind that expedite requests for applications and petitions will be considered based upon the following criteria:

*

Severe financial loss to company or individual

*

Situations of extreme emergency

*

Humanitarian situation

*

Nonprofit status of requesting organization advocating the cultural and social interest of the United States

*

Department of Defense or National Interest Situation (Note: Request must come from an official U.S. Government entity, stating that delay will be detrimental to the U.S. Government.)

*

USCIS error

*

Of compelling interest to USCIS

[Old Dominion 26]

You can try, right? But it seems that your school would need to be part of your request. As to the school's policy requiring EADs, probably its elected board wants everything squeaky clean so as to be able to concentrate on learning issues and also to get re-elected.