There's a lot of confusion about foreign federal clerks. I can only speak to people I know about and to what my understanding of the requirements are. After looking into it some more, I found a helpful memo that was posted on ATL: http://abovethelaw.com/2010/09/clerkshi ... en-clerks/
non-citizen clerks, whether the ban doesn't apply or you are hired pursuant to an exception or you are hired without pay, you need to have employment authorization to work in the US under the immigration laws. For Canadians and Mexicans, a TN visa appears to be good enough to satisfy this requirement.
Next, outside the 48 continental states, there appears to be no restrictions whatsoever on the citizenship of a federal clerk, and any foreigner may be hired and paid a salary as a federal clerk there. I personally know of someone who clerked for pay on a TN visa outside he 48 continental states (within the last 3 years).
The courts' explanation of the requirements, at http://www.uscourts.gov/Careers/CareerC ... ments.aspx
, makes it seem like any permanent resident (i.e. green-card holder) can be employed and paid as a federal clerk anywhere. I have no direct or indirect knowledge of anyone in this situation.
Finally, it seems there are no restrictions whatsoever on hiring a volunteer clerk, without pay, anywhere in the US, regardless of their citizenship. I know, but only through the grapevine, of a Mexican/Canadian who clerked for no pay in a federal court in a major US state.
Which brings me to my last point: as far as I know/understand, if you are not a citizen/permanent resident or do not otherwise "owe allegiance to the US," you cannot work and get paid as a federal clerk in the 48 continental states. As far as I can understand, that provision is limited to nationals of certain US territories as described in 8 USC 1408. My (admittedly very indirect) knowledge confirms this: why would a Mexican/Canadian clerk for no pay if the law allowed him to get paid? He wouldn't; because I've heard of people doing so (within the last 3 years), I stand by my belief that a non-citizen federal clerk (outside the narrow exceptions above) cannot be paid. The Volokh post and the NALP/Cornell clerkship guide are likely outdated. Volokh is certainly outdated since the change happened in December 2009, as per the memo posted at ATL. Furthermore, the change was a stealth change implemented in a massive appropriations bill, so it wouldn't surprise me that clerkship advisers writing in 2010 would still not know about it. Indeed, the Administrative Office of the US Courts only appears to have found out about the new restrictions in August 2010, as that's the date when the memo (posted at ATL) discussing the change was issued. The memo clearly specifies: "Under prior
law, . . . exceptions permitted the hiring of citizens of several designated countries, as well as citizens of countries 'allied with the United States in a current defense effort.' These exceptions have been removed from the law."
A. Nony Mouse: where did you find the joint defense exception? I couldn't find it and I believe it's an outdated exception that is no longer in the current law.