US: Visa status of foreign graduates on OPT under renewed scrutiny

More than 240,000 foreign graduates in the United States – or more than one in five current student visa holders – are engaged in an Optional Practical Training (OPT) placement. Participation in such post-study work placements in the US has expanded considerably in the past decade and the programme has come under more scrutiny and has been a touchstone for political debate as a result.

As recently as this week, senior administration officials have challenged the OPT programme: “I think the way in which OPT has been handled over the past four years, with the help of certain decisions coming out of the D.C. Circuit Court, have been a real problem in terms of misapplication of the law,” Joseph Edlow, the president’s nominee to lead U.S. Citizenship and Immigration Services, said during a confirmation hearing before the Senate Judiciary Committee on 21 May. “What I want to see would be essentially a regulatory and sub-regulatory program that would allow us to remove the ability for employment authorizations for F-1 students beyond the time that they are in school.”

The statement prompted a quick response from NAFSA CEO Fanta Aw: "Threatening to end OPT, a program that provides a proven pathway for international students to gain work experience in the United States, will have long-term consequences for the United States," she said. "For decades, practical training opportunities have helped attract international students that have advanced America’s global leadership, innovation, and economic vitality."

In the meantime, more oversight

Over the last two months, there have been widespread reports of students having their visa status terminated in the US without due process or notification. That enforcement action was successfully challenged, and subsequently reversed by US immigration officials. But the US administration has also clearly signalled its authority to revoke student visa status, and to do so essentially at will.

Most recently, there are reports that some students on OPT placements are receiving letters from US Immigration and Customs Enforcement (ICE) threatening them with the termination of their records in the Student and Exchange Visitor Information System SEVIS), and with the commencement of proceedings to remove them from the country.

At issue is the indication of the students' employment status on the SEVIS record. Students accepted for the OPT programme are granted 90 days to secure employment in the United States. ICE is flagging that students who remain unemployed beyond that 90-day window may be subject to removal.

The ICE letter makes this point clearly: "Because there is no employer information in your SEVIS record, you are accumulating unemployment days and may have exceeded the permissible period of unemployment. If you have been employed during your OPT time, you must correct your SEVIS record. Please contact your DSO or utilize the SEVIS Portal to update your information. Failure to take corrective action may result in the initiation of immigration proceedings to remove you from the United States."

The letter adds that, "If your SEVIS record is not updated within 15 days of the date of this notice, SEVP will set your SEVIS record to “terminated” to reflect the lack of employer information and the potential that you may have violated your status either by failing to timely report OPT employment or by exceeding the permissible period of unemployment while on OPT."

It is unclear how many students have received this notice from ICE, but the issue is of sufficient concern that NAFSA has issued a special advisory for US educators, outlining its practice guidance and recommendations. NAFSA advises that, "[Designated School Officials, or DSOs] should regularly check their SEVIS 'Accrued Unemployment Days for Students on Approved OPT or STEM' Alert. SEVP's SEVIS Help Hub Alerts and Lists page describes this alert:

• Lists students on active post-completion OPT or STEM OPT with at least one day of unemployment.
• Shows if the student is employed, as of the date and time the list was generated.
• DSOs should closely monitor this list to follow up with students with high levels of unemployment and to remind students to keep employment information up to date, either by self-reporting employer information in the SEVP Portal or asking the DSO to enter their changes in SEVIS."

The NAFSA advisory adds that:

"The SEVIS Help Hub - Optional Practical Training contains the following guidance:

• A student whose record lacks employer information is considered unemployed.
• SEVP officials can manually terminate a student who accrues 90 total days of unemployment.
• See the Unemployment Counter article on the SEVIS Help Hub for more information.“

The clear indication for affected students otherwise is that they must promptly update their employment status in SEVIS.

This latest enforcement action is making news in international media as well. Speaking to The Korea Daily, immigration lawyer Bohyun Song highlighted that this marks a departure from established practice in the US where SEVIS records have rarely been terminated automatically after the 90-day unemployment window. “SEVIS is set to automatically end the record if no employment is reported within 90 days after OPT begins,” she said. “But if a student was hired and later fired or resigned during that period, their visa status usually wasn’t affected—unless issues arose during future visa applications.”

Ms Song added: “ICE is signaling that they are checking OPT students’ employment status in real time to verify compliance with visa conditions."

For additional background, please see:

• "US: Immigration authorities set out the legal basis for revoking student visa status"
• "US administration reverses course; moves to restore cancelled student visas"
• "United States: Government enforcement action on schools, universities, and international students intensifies"