By Roujin Mozaffarimehr.
As the COVID-19 pandemic continues to unfold and impact all aspects of society, concerns have arisen as to the future of the F-1 OPT program under the Trump Administration. This post describes the history of OPT, the legal challenges and attacks on OPT, and, while no action has been taken to change or end the program, we discuss the implications of such changes.
History of OPT and STEM OPT
International students (F-1 students) who come to the U.S. to pursue post-secondary education at accredited U.S. universities are afforded practical training, which allows them to work for a finite duration of time in the U.S. Optional Practical Training (OPT) is afforded to F-1 students upon the completion of their degree program. Authorization to work is issued on an Employment Authorization Document (EAD) that is issued for a 12-month period. International students that complete degree programs in STEM fields can qualify for a STEM OPT extension, extending that work authorization for another 24-month period.
While some form of practical training has existed in U.S. immigration for over fifty years, the OPT program was created and formalized in 1992. The original program afforded F-1 students 1 year of work authorization upon the completion of their degree program. In 2008, the STEM OPT program was introduced. The original STEM OPT program provided for an additional 17 months of work authorization for persons who completed degrees in a STEM program. A new STEM OPT rule that took effect in May 2016 amended the existing STEM OPT regulations and extended the authorized work period from 17 to 24 months.
Since the inception of the STEM OPT program in 2008, the program has been rife with litigation. Specifically, the Washington Alliance of Technology Workers (WashTech), an organization that claims to advocate for technology workers in Washington State and beyond, filed suit arguing that the rule was unlawful. This case was stuck in litigation until May 2016. That month, the new STEM OPT rule was to take effect, amending the existing STEM OPT regulations and extending the authorized STEM OPT 24 months. As a result, the D.C. Circuit Court of Appeals dismissed the WashTech appeal in May 2016 on the basis that the 2008 STEM OPT was no longer valid and therefore the case moot.
In June 2016, WashTech filed a new lawsuit in the U.S. District Court for the District of Columbia arguing that the new STEM OPT rule is unlawful. The case has been in litigation ever since.
Support for F-1 students and the OPT program through the current litigation has been overwhelming. On November 21, 2019, 118 public and private universities and colleges filed an amicus brief to defend the OPT and STEM OPT programs. The case is still ongoing.
Attacks on F-1 Under the Trump Administration
The Trump Administration has made attempts at restricting F-1 student visas generally.
Changes to the FAM and in turn F-1 visa processing
In August 2017, The Department of State (DOS) made changes to the Foreign Affairs Manual (FAM) which controls consular processes at consulates and embassies abroad in how Officers assess F-1 visa applicants. Previously the FAM directed consular officers to not focus on an F-1 applicant’s ties to their foreign residence on the basis that students may not have long-term plans. Changes in the FAM completely changed this assessment approach—the FAM now requires that an F-1 applicant demonstrate permanent employment, meaningful business or financial connections, close family ties, or social cultural associations, which will indicate a strong inducement to return to the country of origin.
Attempts to Implement a More Restrictive Unlawful Presence Policy
In August 2018, the USCIS posted a policy memorandum that changed the way unlawful presence would be calculated for F, J, and M Nonimmigrants, rescinding its 2009 policy guidance. The new policy stated that F, J, and M nonimmigrants would begin accruing unlawful presence retroactively (or on the earliest) of any of the following:
- The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
- The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
- The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
- The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).
On February 6, 2020, the U.S. District Court for the Middle District of Northern California issued a nationwide injunction enjoining USCIS from enforcing the August 9, 2018 policy memorandum.
Proposed Rule on the Unified Agenda: Practical Training Reform
In Fall 2019, the Department of Homeland Security added to its unified agenda a proposed rule in which “ICE will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.” There are no details as to what the amendments will be.
The rule is slated to be published in August 2020. No additional detail is available at this time. However, it is important to note that there are many proposed rules that have remained in the proposed rule stage over the last several years, so there is no guarantee that there will be a published rule or movement on this rule.
Restricting F-1 Students and their access to OPT is a terrible mistake.
International Students Contribute Immensely to the U.S. Economy. It’s important to point out the data:
- NAFSA: Association of International Educators released data in November 2018 that, “…showed that the more than one million international students studying at U.S. colleges and universities contributed $39 billion to the U.S. economy and supported more than 455,622 jobs during the 2017-2018 academic year. This represents a 1.2 percent increase in job support and creation and a 5.8 percent increase in dollars contributed to the economy from the previous academic year. According to the U.S. Department of Commerce, education currently ranks as the nation’s 6th largest services export.”
- The Study further showed that, “…Further analysis showed that 3 U.S. jobs are created or supported for every 7 enrolled international students by spending in the following sectors: higher education, accommodation, dining, retail, transportation, telecommunications and health insurance. NAFSA also found that the nearly 100,000 international students attending U.S. community colleges contributed $2.7 billion to the U.S. economy and supported more than 15,000 jobs during the 2017-2018 academic year.”
- Further, 40% of American Nobel Prizes since 2000 awarded in chemistry, medicine, and physics since 2000 were awarded to immigrants.
- 23% of billion-dollar startup companies in the U.S. were founded or co-founded by an international student.
To restrict access to OPT robs the United States of innovation, revenue, and job creation. There is no question about it.
There has been no clear action taken against restricting F-1 students from entering the U.S. or to restrict their access to OPT. However, with the uncertainties that have arisen due to the COVID-19 pandemic, coupled with the actions of the Trump Administration over the last several years, concern is reasonable. If the outcomes of these policies indicate anything, it shows that any sweeping changes will be poised for litigation, and hopefully, they will result in injunctive relief, protecting foreign students. However, until we see what actions the government takes, it remains to be seen how the Trump Administration will treat foreign students.
 See 57 Fed. Reg. 31,954.
 See 73 Fed. Reg. 18,944.
 See 81 FR 13039.
 See Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, 156 F. Supp. 3d 123 (D.D.C. 2015); See Also, Wash. All. of Tech. Workers v. DHS, 650 F. App’x 13, 14 (D.C. Cir. 2016).
 “If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.” 9 FAM 402.5-5(E)(1).
 See PM-602-1060.1, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” (August 9, 2018).
 “The previous policy under USCIS Interoffice Memorandum, “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act” (May 6, 2009) admitted F, J, and M nonimmigrants in duration of status (D/S); unlawful presence would begin accruing after USCIS formally found a nonimmigrant status violation while adjudicating a request immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date (date certain) accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.” PM-602-1060.1, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” (August 9, 2018).