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Administration to Revisit Reforming F-1 Optional Practical Training Program

The Trump Administration has talked about reforming the F-1 Optional Practical Training (OPT) program for years. It first appeared on the 2017 DHS Regulatory Agenda as a proposed new rule. The stated purpose of the rule was to increase protections for U.S. workers through additional oversight and to reduce fraud and abuse of immigration programs. The rule has never been finalized.

With the unemployment rate at an historic high, the Administration is refocusing on “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” In the “Proclamation to Suspend Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” issued on April 22, 2020, President Donald Trump stated that within 30 days he would be reviewing non-immigrant programs to further the stated objectives.

Many expect new rules regarding non-immigrant visas and the OPT program would be forthcoming. Senator Charles Grassley (R-Iowa) has bolstered this expectation by expressing his continuing concerns regarding fraud and abuse in F-1 student visa programs. Grassley has been raising concerns about the program since 2018. On May 21, 2020, he sent a letter to Acting Secretary of the Department of Homeland Security, Chad Wolf, seeking answers to questions regarding DHS oversight of the OPT program. Particularly, he is concerned about “visa mills” masquerading as educational institutions that “serve as defacto employment agencies that provide the necessary approval for aliens who seek to enter the U.S. under F-1 visas and work in this country.” He is also concerned that these “mills” work with fake companies that ostensibly hire F-1 students to work through the F-1 OPT and STEM OPT programs.

Grassley is expecting responses regarding DHS insights, oversight, and enforcement actions for both large and small organizations and institutions. For example, he wants to know the steps DHS takes to validate companies involved in the OPT program, DHS policies regarding site visits, the steps DHS takes to investigate whether educational institutions are complicit in fraud, and how many companies have been identified as being engaged in fraud. The answers he receives may well color the Administration’s new rules and recommendations.

Colleges and universities worry about how limits on OPT could affect their programs, their bottom lines, and the economy in general. The Chronicle of Higher Education reports that the OPT program “drives year-to-year enrollment increases of students from foreign countries.” The F-1 OPT program has historically been an important incentive for foreign students to come to the U.S. (especially those in STEM programs). Given the current immigration landscape and the COVID-19 pandemic, anything that encourages foreign student enrollment is welcome. As the American Council on Education pointed out, “Part of the global leadership of U.S. higher education has involved attracting the best and the brightest.” It also said the OPT program is a substantial attraction. The Business Roundtable has found that cutting the OPT program would actually result in job losses for U.S. workers, and that “immigrants can help the United States achieve its full economic potential, to the benefit of all Americans.”

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 162

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About this Author

Melle X. Fabian Austin Employment Lawyer
Associate

Melle X. Fabian is an Associate in the Austin, Texas, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Melle is passionate about helping clients navigate U.S. immigration laws, finding creative solutions that allow families and professionals to stay in America, and assisting employers with hiring and retaining foreign workers. Being a Chinese-Canadian immigrant, Melle understands firsthand some of the issues and challenges that her clients face.

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