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I-9: Covered Workers: Do Unpaid Interns Complete a Form I-9?
Interns do not complete the form I-9 unless they receive something of value from the employer in exchange for their labor and services. This is known as remuneration. Unremunerated individuals, including interns and student trainees, are not required to complete an I-9 form.
The form I-9 is only required for persons hired for employment as defined for purposes of the I-9. According to the Handbook for Employers of the United States Citizenship and Immigration Service (USCIS), a person is hired for employment for I-9 purposes where he or she performs labor or services in the U.S. in return for wages or other remuneration.
An employer’s internal policies will determine whether an unpaid intern or other unpaid individuals receive remuneration. Remuneration is defined as anything of value provided by an employer in exchange for labor or services. Remunerations can include money, meals, lodging and other benefits, except gifts. If an employer has determined that an intern or other unpaid worker will receive something of value in exchange for his or her labor or services, then the intern or other worker becomes “hired for employment,” requiring the employer to complete the form I-9. See USCIS Q&A: Who Needs to Complete Form I-9?
Does payment of a stipend make a difference?
Although paying unpaid interns a stipend runs the risk of creating a hired-for-employment relationship for I-9 purposes, the Department of Labor (DOL) provides guidance under its Field Operations Handbook, Chapter 10, Section 10(b)-02(i)(1) that “students may receive some payment for their work in order to have a more realistic work situation, or as an incentive to the student, or to insure the employer will treat the student as a worker.” Also, under Title 29 § 553.106, “volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their statuses as volunteers.” In two opinion letters, FLSA2006-28 and FLSA 2005-51 the DOL defines “nominal fees” or stipends as 20% of what an employer would otherwise have paid to hire a worker or to other employees for the same services.
When determining if unpaid interns receiving a stipend should complete a form I-9, employers should treat the interns as volunteers. Employers should ensure that the interns are providing services without the expectation of pay, that stipends paid are not a substitution for compensation and that interns are not paid on an hourly basis in accordance with the hours of worked performed or tied to productivity. Stipends, however, can be a reimbursement of out-of-pocket expenses incurred from meals, housing, transportation, books, supplies and other materials necessary for the internship, and should approximate the amount of expenses incurred. If the stipend exceeds $600 in a calendar year, it must be reported to the Internal Revenue Service (IRS) on Form 1099.
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