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President Obama’s Executive Immigration Reform: Shining a Spotlight on Reforming Optional Practical Training “OPT”

As a part of President Obama’s recent announcement regarding his executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued several memoranda to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE).  On November 24th, we posted a comprehensive overview of changes the business community can expect as a result of the executive action. In this post, we focus on one aspect of Secretary Johnson’s memo on “Policies Supporting U.S. High Skilled Businesses and Workers”, namely Optional Practical Training (OPT) for foreign students and graduates of US colleges and universities.

OPT provides a mechanism for foreign students to get experience in their field of study, both during school and after their graduation.  Most foreign students are entitled to post-graduation OPT for only a 12 month period.  However, students who major in Science, Technology, Engineering or Math (STEM) fields and work for employers who are enrolled in E-Verify, can extend their post-graduation OPT for an additional 17 months, resulting in a total post-graduation OPT  period of 29 months.  The STEM OPT extension was designed to solve a fundamental problem resulting from the insufficiency of H-1B visas.

In recent years, demand for H-1B visas has been so much higher than the available numbers of visas that large numbers of foreign students working on OPT have been unsuccessful in securing an H-1B visa number from the annual quota, and have not been able to transition from OPT status to H-1B work visa status.  The STEM OPT extension is useful in that it gives foreign students who meet the STEM definition multiple bites at the H-1B apple. If they miss the quota in the first year, they can keep working on OPT status and try the next year. And if they miss the quota the next year, they still have one more chance.  This is good for the students but it is also extremely important to US employers to be able to invest in these employees and not worry that they will lose them so quickly.

But the STEM fields are narrowly defined.  If the STEM fields are expanded, the STEM extension would benefit a larger number of foreign students and employers.  In his memo, Secretary Johnson calls for USCIS and ICE to develop regulations to “expand the degree programs eligible for OPT” and to “extend the time period and use of OPT” for foreign Science, Technology, Engineering, and Math (STEM) graduates.

We hope that the expansion of degree programs will include degree concentrations in business administration, finance, economics, etc. so that a larger percentage of foreign students can take advantage of the STEM OPT extension option. In light of the H-1B visa crisis, employers across the US are clamoring for options to hire and retain foreign talent, and expanding eligibility for a post-graduation OPT extension responds to this need.  Expanding the degree programs list would also bring value to the US by keeping talented graduates in the US Secretary Johnson also ordered USCIS and ICE to take steps to ensure that OPT employment “is consistent with labor market protections to safeguard the interests of US workers in related fields.” We hope that the end result of this directive does not decrease the flexibility that the OPT program currently offers foreign students. Students and graduates on OPT can be self-employed and work as independent contractors, a flexibility that is not afforded by other widely-available temporary work visa statuses. F-1 students and graduates are not subject to prevailing wage requirements during their employment on OPT which is particularly helpful to new entrepreneurs who sometimes volunteer their time to their own start-ups.

The current flexibility of the OPT program means students can take internships and employment that offer value and further their education. During this limited period, they now have a range of choices and options, including working on their own start-ups.  Undue restrictions on the F-1 OPT program would be counterproductive to the goal of improving and enhancing the program to provide the US with talented, energetic and motivated foreign students and graduates.

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About this Author

Susan J. Cohen, Immigration Attorney, Mintz Levin Law Firm
Member and Chairperson of the Immigration Section

Susan is the founder and Chair of the firm’s Immigration Practice, which is composed of 10 attorneys and 15 immigration specialists and assistants who service the immigration needs both of Mintz Levin’s existing corporate and individual clients, and of new clients who choose the firm precisely for its knowledge in the field of immigration and nationality law. Mintz Levin also is committed to handling political asylum cases, most of which are taken on a pro bono basis.

Susan is actively involved in the American Immigration Lawyers Association (AILA) and has chaired and co-chaired a...

Cassie M. Ramos, Immigration Attorney, Mintz Levin Law Firm

Cassie’s experience in immigration legal matters includes having served in internships for the Boston Immigration Court and the Loyola University Stuart H. Smith Law Clinic and Center for Social Justice.

Before joining the firm, Cassie served as a student practitioner with the Immigration Section of the Loyola University Stuart H. Smith Law Clinic and Center for Social Justice. In this role and while under the supervision of an experienced attorney, she argued before the Immigration Court and appeared on behalf of clients to examine and cross-examine witnesses, interview witnesses, draft pleadings and motions, engage in strategy discussions, and conduct legal research. Prior to this position, Cassie interned with the Executive Office for Immigration Review of the Boston Immigration Court. There, she researched and prepared memoranda and drafted decisions on application for asylum. Cassie also has experience as a legal assistant for an immigration law firm in Boston.