By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
May a non-resident alien (Russian) musician here for an advance graduate school degree on an F-1 visa be paid for playing some off-campus recitals? Are they considered “Curricular Practical Training” which is supposed to be allowed, if approved by the Designated School Official? (Of course, 30% of the gross fee would have to be withheld unless a CWA is obtained.) Thanks for your advice!
A lot of schools, universities, and conservatories are all too happy to accept foreign students without really explaining that their ability to “work” in the US during their studies, much less remain long enough after graduation to establish careers in the US, is very limited and restrictive. (Remember, as it applies to artists, the twisted tomes of US immigration law define “work” as any performance in front of an audience regardless of whether or not tickets are sold or the artist is paid.)
While obtaining authorization for a foreign student to perform concerts and recitals on-campus is fairly simple, performing concerts and recitals off-campus can be a bit much trickier. One of the ways foreign students can be granted authorization to perform concerts and recitals off campus is to be approved for Practical Training. Foreign students are eligible for Practical Training once they have been enrolled for at least one academic year (nine months). There are two types of Practical Training: Curricular Practical Training (CPT) and Optional Practical Training (OPT).
CPT includes programs that are an “integral part of an established curriculum.” That is, the off-campus concerts and performances must be associated with the school’s established curriculum and must be an integral part of the student’s degree program. While it is completely within the discretion of the school to determine what qualifies for CPT and what constitutes “an integral part of the student’s degree program,” CPT programs are typically listed in the school’s course catalog with the number of credits included and the name of a responsibility faculty member. CPT programs typically include work/study, internships, or any other type of required internship or practical performance experience which the school believes is necessary for the student’s degree or course of study.
OPT, by contrast, is not tied to the curriculum (though it is supposed to be “related” to the student’s field of study) and can be used for up to a year full time (two years part time) on campus or off campus. OPT can take place either before graduation or in the year following graduation. OPT that takes place before graduation can only be used for up to 20 hours per week during the school year (though full time work is permitted during holidays and vacation periods if the student applies). After graduation, the employment can be full-time. Post-graduation OPT must be completed within 14 months of the student’s graduation. A student can have OPT for a maximum of twelve months after graduation.
A note of caution: while students may take an unlimited amount of Practical Training, if they take more than a year of CPT, they are barred from seeking OPT. This can be critical because the OPT may be a student’s only opportunity to perform professional engagements in the US after graduation. As USCIS discourages students from switching easily from F-1 classification to O-1 classification, any hope of doing so usually rests with what the student is able to do during their year of post-graduation OPT. Total CPT up to 364 days or less will not result in the loss of OPT. However, part time work using CPT for more than a year has been deemed to result in the loss of eligibility for OPT. In short, avoiding the loss of OPT eligibility requires both good record keeping of the time spent performing on CPT as well as a lot of math!
In your case, assuming the Designated School Official (DSO) approves the student’s request to perform the off-campus recitals, the DSO will enter the information in SEVIS and print out an I-20 with the CPT authorization for the student. The DSO is required to sign and date the I-20 prior to returning it to the student. While no employment authorization document from USCIS is needed for curricular practical training, the student may not begin work using CPT until getting the endorsed I-20.
So long as a student is approved for either CPT or OPT, then, yes, the student can be paid. However, while your willingness to acknowledge US tax-withholding obligations is both rare and commendable, it may be premature. First, Russians belong to a small list of countries from whom no withholding is required because all money earned by Russians nationals in the US is tax exempt. However, this changes if the Russian is considered a “resident alien” for tax purposes. Second, just because a student (or anyone, for that matter) is a “non-resident” for immigration purposes, doesn’t mean they are a “non-resident” for tax purposes. It all depends on how much time they spend in the US each year. As with all foreign artist tax matters, it’s a very fact specific analysis. Assuming your student in approved for CPT, then I would strongly recommend you consult with an expert in foreign artist taxation to determine the student’s specific withholding and tax obligations.
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
