Unpaid J-1 Internships: Program Rules and the Primary Beneficiary Test

Can a J-1 Internship Be Unpaid?

An unpaid J-1 internship must meet exchange-program requirements and applicable wage law; the J-1 rules alone do not decide whether pay is required.

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What the J-1 Visa Rule Requires

22 CFR 62.22 does not set a general wage or require every internship to be paid. For agriculture, it expressly requires compliance with the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act. This does not exempt other fields from applicable wage law.

The sponsor must ensure you have sufficient finances for your entire stay, including housing and living expenses, when issuing your DS-2019. See Pay & Housing.

Source: 22 CFR § 62.22: Trainees and interns · US Department of Labor: Fact Sheet #71: Internship Programs Under the FLSA

The Primary Beneficiary Test

The Department of Labor's Fact Sheet 71 explains how courts decide whether interns at for-profit employers are employees under the FLSA. The test examines who primarily benefits from the relationship. Its seven factors consider the extent to which:

• Both sides understand that no compensation is expected.
• Training resembles an educational environment.
• The internship connects to formal education or academic credit.
• It accommodates academic commitments.
• Its duration is limited to beneficial learning.
• The intern complements paid staff rather than displacing them, while receiving educational benefits.
• Both sides understand there is no entitlement to a paid job afterwards.

Source: US Department of Labor: Fact Sheet #71: Internship Programs Under the FLSA

What the Result Means

No single factor decides, and each case depends on its circumstances. If you are an employee, you are entitled to minimum wage and overtime under the FLSA. If you are not an employee, the FLSA does not require that pay. Calling a placement an internship does not answer the employee question.

Source: US Department of Labor: Fact Sheet #71: Internship Programs Under the FLSA

FAQs

Does agreeing to work without pay settle the issue?

No. An understanding about compensation is only one factor. The test considers the circumstances of the relationship as a whole.

Source: US Department of Labor: Fact Sheet #71: Internship Programs Under the FLSA

What about public-sector or charitable nonprofit internships?

DOL says these are generally permissible without pay when the intern volunteers without expecting compensation. That is separate from the test described for for-profit employers.

Source: US Department of Labor: Fact Sheet #71: Internship Programs Under the FLSA

The Bottom Line

An unpaid internship is not automatically lawful because it is J-1 Visa. Wage-law requirements still apply, and you need sufficient funds for your stay.

Related Terms

• 
  Pay & HousingWhat the J-1 rules say about pay and accommodation for interns and trainees. They set no wage, but you must be able to cover your whole stay, housing included.
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• 
  J-1 InternA US exchange visitor category that lets students and recent graduates train at a US company for up to 12 months.
  more
• 
  Host CompanyThe US organization where a J-1 intern or trainee does the training program.
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• 
  Program ExclusionsThe kinds of positions and duties that J-1 internships and traineeships are not allowed to include.
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• 
  DS-7002The Training/Internship Placement Plan. You, your host company and your sponsor all sign it.
  more

Sources

1. 22 CFR § 62.22: Trainees and interns
2. US Department of Labor: Fact Sheet #71: Internship Programs Under the FLSA