Consider OPT as One of Many Pathways to Hiring Foreign Talent

Optional practical training (OPT) is one of several options for temporarily hiring foreign talent.

It is a program in the U.S. that lets F-1 students—international students with a nonimmigrant student visa—work in their field of study for a specified period of time to gain practical experience, said Dawn Lurie, an attorney with Seyfarth in Washington, D.C.

Overall, organizations with F-1 visa holders working through OPT have positive experiences with the workers (97%) and the program (90%), according to SHRM Workplace Immigration Research in 2023. More than 2 in 3 employers (68%) agreed that they would benefit from a more streamlined process to access U.S.-educated, foreign-born talent. Additionally, U.S. universities were by far the most cited source when recruiting foreign-born workers.

“For U.S.-based HR professionals navigating the waters of international hiring, OPT stands out as a flexible and relatively hassle-free way to access global talent fresh from U.S. academic institutions,” said John Fay, a lawyer and director of product strategy with Equifax Workforce Solutions in Phoenix.

OPT

Here’s an overview of OPT—in addition to science, technology, engineering, and mathematics (STEM) OPT—and other visa alternatives.

Students in OPT can work for 12 months after graduating, said Kerri-Ann Griggs, an attorney with Alston & Bird in Atlanta.

However, STEM F-1 students are eligible to work a maximum of three years after graduation—the initial 12 months of OPT, followed by a 24-month STEM OPT extension, she added.

 “OPT is often used as a bridge between academic studies and post-graduation employment, either abroad or in the United States,” Lurie noted.

She said OPT students must observe a range of important responsibilities to ensure compliance with immigration regulations, such as:

• Prompt and accurate reporting that employment falls under the student’s duties. This entails reporting the commencement of employment to their designated school official within 10 days and notifying them of any changes in employment, such as a new employer, job title, or location, within the same time frame.
• Seeking and maintaining employment directly related to their field of study during the OPT period. Full-time and part-time employment are permissible, provided they align with the student’s educational background.
• Strictly adhering to the specified start and end dates on the OPT authorization.

Employment is permissible only within the approved time frame on the employment authorization document.

“Unfortunately, too often we see students starting too early and participating in unauthorized employment,” Lurie cautioned.

Other options for student work authorization include:

• Curricular practical training, which allows international students to work off campus as part of their academic program. This option is “generally more restrictive than OPT,” Lurie said.
• On-campus employment for up to 20 hours a week for F-1 students during the academic year and full time during school breaks.
• Economic hardship employment off campus if the student can demonstrate severe economic need.

For employers, recruiting OPT students has the benefit of hiring individuals with independent work authorization, Griggs noted. This is unlike some other categories of foreign national talent for whom employers must obtain approvals of employment-based visas before the nonimmigrant workers can work for them, she said.

A drawback of OPT is that it is “of relatively short duration,” said Amy Peck, an attorney with Jackson Lewis in Omaha, Neb. “For a company to retain talent through OPT, it must find a way to transition the individual to another work-authorized status.”

Peck added that to attract students on OPT, the role being offered must be described with sufficient specificity that a student can determine whether it will relate to their area of study and supplement their education.

“Prospective job applicants that cannot readily determine if the job will qualify for OPT may pass up on applying for the roles,” she said.

STEM OPT

For STEM OPT, employers have additional responsibilities, Lurie said.

These duties include:

1. Being enrolled in E-Verify, the government’s web-based system for employers to electronically confirm the employment eligibility of their employees.

2. Providing and implementing a formal training program for the student, as outlined in the Form I-983 Training Plan.

“The STEM training plan appears simple but includes obligations that should not be forgotten once the form is completed,” said Eileen Scofield, an attorney with Alston & Bird in Atlanta. For example, the employer must provide onsite supervision and training as well as a minimum of a 20-hour workweek.

Visa Alternatives

OPT provides a convenient avenue for hiring international graduates, but it’s just one of several pathways to recruit foreign talent, Fay said.

The H-1B visa is a popular alternative, particularly for roles requiring professional-level knowledge, he noted. However, “the overwhelming demand for H-1B often leads to a lottery system, making the outcome somewhat uncertain,” he said.

Another option is the TN [Trade North American Free Trade Agreement] classification, enabling employers to hire qualified Canadian and Mexican citizens to fill certain defined occupations for a temporary period. “Unlike the H-1B, the TN has no annual limit or maximum period of stay,” Fay said. The United States-Mexico-Canada agreement has replaced the North American Free Trade Agreement, but the TN category remains.

For global enterprises with qualifying offices in multiple countries, the L-1 visa is “a preferred choice,” he added. “It’s tailored for intra-company transfers, catering to managers, executives, or employees with specialized knowledge wishing to relocate to their employer’s U.S. office for a temporary period.”

Employers also may turn to the J-1 visa, which allow individuals, through approved J-1 sponsors, to participate in on-the-job training programs.

Fay said: “The decision to pursue these alternatives, or others, often hinges on the company’s needs, the specific nature of the position, the intended duration of the employment, and the potential employee’s background.”