Many employers are concerned about liability related to the employment of international students in the United States due to changes in federal laws governing non-citizens, particularly the Immigration Reform and Control Act of 1986 (IRCA) and the Immigration Act of 1990 (IMMACT90). This summary addresses concerns employers might have about international students and work.
Getting permission for international students to work in the U.S. is not as difficult as many employers think. Most international students are in the U.S. on non-immigrant student visas (F-1 and J-1), and these international students are eligible to accept employment under certain conditions.
Fortunately, there is little paperwork for an employer who hires F-1 or J-1 students. All paperwork is handled by the students, the school, and U.S. Citizenship and Immigration Services (CIS). For curricular practical training, the school will make a notation on the students' copy of the I-20 form indicating that curricular practical training has been authorized, and specifying the duration and place of employment. Students authorized for optional practical training are required to apply to CIS (through the school) for an Employment Authorization Document (EAD).
Federal regulations require that employment terminate at the conclusion of the authorized practical or academic training. However, students on an F-1 visa, or students on a J-1 visa who are not subject to a two-year home residency requirement, may continue to be employed, if they receive approval for a change in visa category-usually to H-1B. Students must have a minimum of a bachelor's degree in order to qualify for H-1B status.
Under an H-1B visa individuals may work in the United States for a maximum of six years. This visa is valid only for employment with the company that petitioned for them. They must re-apply to the CIS if they wish to change employers. As soon as the initial job offer is made, the company should begin petition process for an H-1B visa if employment is likely to extend beyond the practical training period.
Unless exempted by a tax treaty, F-1 and J-1 students earning income under practical training are subject to applicable, federal, state, and local income taxes. Information on tax treaties may be found in Internal Revenue Services Publication 519, U.S. Tax Guide for Aliens, and 901, U.S. Tax Treaties.
Generally, F-1 and J-1 students are exempted from social security and Medicare tax requirements. However, if F-1 and J-1 students are considered "resident aliens" for income tax purpose, social security and Medicare taxes should be withheld. Chapter 1 of Internal Revenue Services Publication 519, U.S. Tax Guide for Aliens explains how to determine the residency status of international students.
More information on social security and Medicare taxes can be found in Chapter 8 of Internal Revenue Services Publication 519, U.S. Tax Guide for Aliens and in Section 940 of Social Security Administration Publication No. 65-008, Social Security Handbook.
The Code of Federal Regulations (CFR) Title 8 and Title 22 citation numbers for regulations governing practical training are as follow:
F-1 Students: 8CFR 214.2 (f) (9) & (10)
J-1 Students: 22CFR 62.23 (f)
CFR Title 8 citation governing IRCA requirements are:
F-1 Students: 8CFR 274a.12 (b) (6) (iii) and 8CFR 274a.12 (c) (3) (i)
J-1 Students: 8CFR 274a.12 (b) (11)
Copies of Code of Federal regulations are available from the Superintendent of Documents in Washington DC or from the web site:
http://www.gpoaccess.gov/cfr/index.html
