Employers Still on Edge over STEM OPT Program

By Allen Smith, J.D. Feb 18, 2016
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Foreign graduates with a science, technology, engineering or mathematics (STEM) degree may soon see more stability in the STEM Optional Practical Training (OPT) program. That’s a good thing, immigration attorneys say, as these graduates are sorely needed to fill many job openings. 

However, last summer’s successful procedural challenge of the program has left some employers wondering whether this option is their best bet.

In August 2015, a judge struck down on procedural grounds a 2008 regulation allowing foreign students with STEM degrees to work post-graduation. The court gave the Department of Homeland Security (DHS) until Feb. 12, 2016, to submit a new rule for notice and comment. The DHS published a proposed rule in October 2015 that would give STEM students who have elected to pursue 12 months of OPT the ability to extend the OPT period by 24 months, for a total of 36 months.

On Jan. 23, a judge gave the DHS more time, making May 10 the deadline to implement the new rule.

The DHS submitted its final rule with the Office of Management and Budget (OMB) on Feb. 5, said Yova Borovska, an attorney with Buchanan Ingersoll Rooney in Tampa, Fla. This is the last step before a final rule can be issued. A final rule is anticipated by March 11, to allow 60 days for training on the new rule before it takes effect, according to the Council for Global Immigration (CFGI), an affiliate of the Society for Human Resource Management.

Employers Lack Confidence in Program

It’s not just last summer’s lawsuit that has employers on edge; STEM OPT has some powerful opponents on Capitol Hill.

Last June, Sen. Chuck Grassley, R-Iowa, said that a Government Accountability Office report found that “Foreign students, sometimes aided by school officials, were abusing the OPT program to acquire unauthorized employment in the United States.”  Grassley said he requested the report after hearing concerns that employers were looking to recruit foreign students with OPT and after learning that an increasing number of students were participating in OPT.

“Putting aside the legality of the OPT program, which I have questioned, I am greatly troubled by the proposal to lengthen to a full two years the OPT STEM extension period,” Grassley said. “By increasing the total amount of time a foreign student may work in OPT after each degree to three years—the same amount of time that an H-1B visa would be valid—there is little doubt that the administration has administratively established a de facto shadow H-1B program, in violation of congressional intent. OPT is meant to be a temporary training program, not as a bridge to a longer-term work visa or a way for employers to hire cheap foreign labor in lieu of Americans or foreign workers in visa programs with prevailing wage requirements.”

Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan., said, “The whole point of STEM OPT is to provide for a legal way for U.S. employers to employ foreign nationals,” adding that the criticism that foreign students were aiming to use the program to acquire unauthorized employment “is not legitimate.”

Justin Storch, manager of agency liaison at CFGI, said the program benefits students who want to get experience with U.S. employers, benefits employers who can profit from their contributions, and helps universities attract the best and brightest from around the world.

“I see firsthand that employers in STEM fields are aggressively hiring, and there are indeed shortages of qualified professionals in such fields,” noted Peter Asaad, an immigration attorney at Immigration Solutions Group in Washington, D.C. Over the next decade, 1 million additional STEM graduates will be needed in the United States, according to a 2012 report by President Barack Obama’s Council of Advisors on Science and Technology.

But Borovska said, “Because of the uncertainty with the program, employers are not confident that they can continue to employ certain workers with pending OPT STEM extensions or workers whose current OPT is expiring and will soon be due for an extension.”

Some employers are relying on H-1B visas to overcome this uncertainty. But she noted, “There are only 65,000 H-1s available and another 20,000 for workers with U.S. master’s degrees from certain types of universities. Last year over 220,000 were filed, so only about a quarter got H-1Bs.”

Borovska added, “Some employers are also deciding to skip the nonimmigrant visa step and proceed with permanent resident sponsorship for F-1 students and students on OPT through the [permanent] labor certification (PERM) program.” She explained, “This is because the backlog for individuals in the EB3 category has decreased substantially for workers who are not from India or China. Therefore, employers are able to more quickly process their applications for permanent residency without significant gaps in employment authorization.”


An additional thorn in employers’ sides is that when hiring STEM OPT workers, they must register with the government online employment verification program, E-Verify, and use it for all new hires, Mdivani noted.

“Compliant employers will need to train HR teams about the complexities of the E-Verify program,” Kevin Lashus, an attorney with Jackson Lewis in Austin, Texas, remarked. “I often tell my clients implementing E-Verify is the most expensive free activity they’ll ever engage in.”

However, Robert Groban Jr., an attorney with Epstein Becker Green in New York City, said, “The E-Verify program has improved and employers are not as reluctant as they were to register.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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