DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

For Q-1 Visa, Employer Sponsors Must Pay Foreign Interns

Internship cases are all the rage right now. A three-member D.C. Circuit panel weighed in on an unpaid internship case this week involving Q-1 visas and International Internship Program, an organization that sponsors a cultural exchange program that helps people from Asian countries find jobs in American schools.

At its heart, it’s an unpaid internship case involving foreign citizens.

The case centers on the U.S. Citizenship and Immigration Services (USCIS) and the way it governs cultural exchange programs and Q-1 visas.

USCIS

To participate in a cultural exchange program sponsored by a U.S. employer, a foreign citizen has to get a Q-1 visa from USCIS, which is part of the Department of Homeland Security. It's a temporary visa specifically for international cultural exchange visitors. USCIS is also in charge of approving an employer's cultural exchange program and issuing regulations on cultural exchange programs and Q-1 visas.

To Pay or Not to Pay, That Is the Q-1 Visa Question

International Internship sued the USCIS because starting in 2010, USCIS denied several of International Internship's petitions for Q-1 visas for foreign participants in its cultural exchange program. USCIS interpreted its Q-1 regulation to require sponsors to pay wages to the participating foreign citizens -- something International Internship doesn't do.

Since International Internship doesn't pay its cultural exchange program's participants, it didn't satisfy the requirements for Q-1 visas. International Internship filed an appeal after the District Court sided with USCIS.

Pay, That Is the Answer

International Internship contends that USCIS's interpretation and application of the rule is inconsistent with the governing federal statute. They also made the same argument about the regulation's language.

Regulation

The key regulation here requires that the program have a "work component" and that the employer offer the foreign citizen "wages and working conditions comparable to those accorded local domestic workers similarly employed." 8 C.F.R. § 214.2(q)(3)(iii)(C), (q)(4)(i)(D) .

Statute

The statute, with nearly identical language, provides that foreign participants "will be employed under the same wages and working conditions as domestic workers." 8 U.S.C. § 1101(a)(15)(Q).

The main question is whether the above language can be read broadly to include unpaid interns. International Internship argued that unpaid foreign interns are eligible to participate in a Q-1 program so long as there are comparable unpaid American interns in the local workforce.

But the court disagreed after it zeroed in on the specific references to "employed," "wages," and "workers." Because of how specific the statutory and regulatory language is, the D.C. Circuit panel agreed with USCIS that the statute is best read to require that the foreign citizens receive wages and that those wages be equivalent to the wages of domestic workers.

For that reason, the D.C. Circuit panel held that the USCIS didn't inconsistently interpret the statute or regulation governing Q-1 visas.

Guess businesses will just have to keep learning the unpaid internship rules the hard way, huh?

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