TN 35 (08-06)

Citations:

Section 210(a)(19) of the Social Security Act;

Regulation No. 4—Sec. 404.1036

A. Background — Legislative History

Public Law 87-256, The Mutual Educational and Cultural Exchange Act of 1961, consolidated various U.S. international educational and cultural exchange activities to promote educational and cultural affairs between the people of the United States and other countries. The Exchange Visitor Program was first established under this Act. Under this program, foreign nationals can temporarily visit the U.S. to participate in exchange programs and share their experiences with their fellow citizens when they return home.

B. Definitions

1. Nonimmigrant

A nonimmigrant is an alien who is temporarily admitted to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission) and qualify for the nonimmigrant classification sought. The nonimmigrant classifications include: foreign government officials, visitors for business and for pleasure, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information media, exchange visitors, fiancé (e) s of U.S. citizens, intracompany transferees, NATO officials, religious workers, and some others. Most nonimmigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children.

2. Alien

An alien is any person in the U.S. who is not a citizen or national of the United States.

3. Nonresident Alien

A nonresident alien is an individual (not a U.S. citizen) who has not acquired resident status for IRS purposes.

4. Foreign Academic Student

An F-1 foreign academic student is a nonimmigrant alien admitted to the U.S. under section 101(a)(15)(F) of the Immigration and Nationality Act to pursue a designated course of study at an established institution of learning or other recognized place of study approved by the Attorney General, after consultation with the Secretary of Education.

5. Foreign Vocational Student

An M-1 foreign vocational student is a nonimmigrant alien temporarily admitted to the U.S. under section 101(a) (15) (M) of the Immigration and Nationality Act to pursue a full course of study in a vocational training program (other than a language program), at an established vocational or other recognized nonacademic institution in the U.S. The course of study must be designated by the alien and approved by the U.S. Attorney General, after consultation with the Secretary of Education.

6. Exchange Visitor

A J-1 exchange visitor is a nonimmigrant alien temporarily admitted to the U.S. under section 101(a)(15)(J) of the Immigration and Nationality Act to participate in an exchange program designated by the Department of State, Bureau of Educational and Cultural Affairs. The Exchange Visitor Program allows foreign nationals to teach, lecture, study, observe, conduct research, consult, train or demonstrate special skills. The J-1 exchange visitor classification includes: alien physician, au pair, camp counselor, government visitor, international visitor, professor, research scholar, short-term scholar, specialist, summer work travel, teacher, trainee and high school, college and university students.

7. International Cultural Exchange Visitor

A International Cultural Exchange Visitor is a nonimmigrant alien temporarily admitted to the U.S. under section 101(a) (15) (Q) of the Immigration and Nationality Act to participate in a cultural exchange program approved by the Secretary of Homeland Security.

C. Policy

Beginning in 1962, certain services performed by nonimmigrants temporarily in the United States (U.S.) as academic or vocational students, exchange visitors and participants in certain international cultural exchange programs have been excluded from the definition of employment under the Social Security Act (the Act). These individuals have Arrival/Departure Records (Form I-94) classifying them as F-1, J-1, or M-1 nonimmigrant aliens. Department of Homeland Security (DHS) regulations provide for authorization for these classes of nonimmigrant aliens to work in connection with the purpose for which they were admitted to the U.S. Authorized work performed by nonimmigrant academic students (F-1), vocational students

(M-1), exchange visitors (J-1), or cultural exchange visitors under the circumstances discussed below is not covered for Social Security purposes.

Nonauthorized work is covered unless an exception under Section 210 of the Act applies.

Services performed by nonimmigrant aliens with the classifications of F-2,

J-2 and M-2 (spouse or minor child of the alien) are covered for Social Security purposes unless an exception under Section 210 of the Act applies.

1. Nonimmigrant Students

a. Academic Student (F-1)

Generally, a designated school official may authorize a student classified as F-1 to work on-campus for 20 hours or less per week while school is in session—DHS authorization is not needed for such work. However, DHS authorization to work is needed:

• when employment exceeds 20 hours per week while school is in session; or

• if the employment is to avoid economic hardship; or

• to perform an internship with an international organization; or

• for certain optional practical training directly related to the student's major area of study.

Authorized work by an F-1-student is not covered for Social Security purposes.

b. Vocational Student (M-1)

A student classified as M-1 needs DHS authorization to work in temporary employment for optional practical training. Such work is authorized only after completion of the student's course of study.

Authorized work by an M-1 student is not covered for Social Security purposes.

2. Foreign Exchange Visitor (J-1)

A J-1 may be employed only by the exchange visitor program sponsor or appropriate designee within the guidelines of the program. If the J-1 is a post-secondary student (college or university) or international visitor and has a letter from his or her sponsor authorizing work, such work is excluded from coverage. J-1 post-secondary students or international visitors are not presumed to have employment authorization; therefore, they must present a letter from their sponsor authorizing the employment. J-1 high school students cannot be authorized to work. J-1 visitors that are in the U.S. performing any of the remaining services listed in RS 01901.740B.6. are presumed to be authorized to work and do not need a separate sponsor letter. Authorized work by a J-1 exchange visitor is not covered for Social Security purposes.

3. International Cultural Exchange Visitor

Beginning October 1, 1994, services provided by a nonimmigrant, nonresident cultural exchange visitor are not covered under Social Security when performed in the U.S. as a participant in an international cultural exchange program.

The cultural exchange program provides training, employment, and the sharing of culture, history and traditions of the country of the alien's nationality. The employer must be the qualified employer (or petitioner) through which the alien obtained “Q” nonimmigrant status. An alien in this class is not required to apply for authorization to work from DHS.

However, non-authorized work performed by cultural exchange visitors outside of the cultural exchange program is not excepted from Social Security coverage.

NOTE: Prior to October 1, 1994, individuals with a designation of Q are not exempt from Social Security coverage.

D. References

• IRS Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities at http://www.irs.gov/pub/irs-pdf/p515.pdf

• IRS Publication 519, U.S. Tax Guide for Aliens at http://www.irs.gov/pub/irs-pdf/p519.pdf

• RM 10211.235, Evidence of Immigration Status for the F1 and M1 Classes of Admission for an SSN Card

• RM 10211.340, General Evidence of Immigration Status and Employment Authorization for the J1 (Exchange Visitor) or J2 (Dependant of J1) classes of admission