Note that I am not a lawyer. When in doubt, please consult your immigration attorney.

What is Optional Practical Training (OPT)?

OPT is essentially a period of time that an international student on a F1 visa is allow to work legally in the United States. Normally, this period is one year but can be extended 24-months for students that graduate with STEM degrees.

What has been changed?

In April 2018, the U.S. Citizenship and Immigration Services (USCIS) changed the wording on their website to clarify where STEM-OPT training can take place:

Moreover, the training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

This essentially means that international workers on STEM-OPT cannot work at any location that does not belong to the employer company.

The impact of this is huge in the consulting industry where the majority of time is spent working with clients (usually at the location of the client).

Can it be enforced?

As of now, there are no regulatory or enforcement actions taken against companies or employees that may have broken this rule. It is also unclear whether the new guidance on USCIS’s website has the force of law. Arguments have also been made that USCIS has no jurisdiction on the matter as the Student and Exchange Visitor Program (SEVP) is governed by Immigration and Customs Enforcement (ICE) and not USCIS. Law experts also agree that a web page modification does not act in place of an amendment to the regulation.

Even if enforcement is unlikely, just mere text on USCIS’s webpage is already striking fear in potential employers of international students. It is more than likely that consulting and other firms that require client work and travel will now be more hesitant to hire international students.

I am on STEM-OPT. Can I still work at a client location?

Short Answer: Ask your companies immigration lawyer.

Long Answer: Possibly. The underlying rationale for this barring of off-site work is 2-fold.

OPT is a training program. USCIS agures that clients are unable to provide sufficient supervision and training to the OPT employee. ICE must be able to access the student’s workplace for inspection. USCIS argues that this is not possible if the student is at a client location.

The first bullet can actually be negated through having a senior mentor from your employment company work with you at the client site. This may also meet the requirement under 8 C.F.R. §214.2 that “the employer have sufficient resources and personnel to provide the training.”

The second point is more tricky. The website never state why ICE could not visit a client site for inspection. In fact, as part of an approved I-983 form, the Department of Homeland Security could freely conduct site visits at the locations listed on the I-983. This could be sufficient defense for the second point.

Dissecting the language on USCIS’s website. “ If the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations.” Thus if this is satisfied and ICE does have access, the rest of the paragraph is a null point.

In light of this confusion, some immigration attorneys are advising employers to do nothing and wait for additional guidance regarding USCIS’ update to its STEM OPT page.

Edit: USCIS released a new policy memorandum that outlines the consequences of “unlawful presence”- which may include F1 students on STEP-OPT working at off-site locations.

Depending on the amount of time being “unlawful” — can result in the student being unable to return to the U.S for an amount of time- up to 10 years in some cases.

This policy takes effect August 9th, 2018.

How about regular OPT?

This does not affect F1 students currently on regular OPT. OPT students can continue to work at off-site locations.

What does this mean

International student enrolling in U.S universities declined 4% from 2016 to 2017. This new policy, among many others, is already having drastic effects on employers’ attitude towards hiring international students.

Consulting and advisory work had previously been a target career for many international students due to sponsorship of H1B visas by employers in these fields. This recent change, if enforced, will essentially disable all international students working in the consulting related industries.

For current international students looking into consulting career paths, the future is also very bleak.

Employers that have previously welcomed international students are now (rightfully) fearful that these talented students will no long be able to work due to regulations. It will be harder than ever for these students on F1 visas to find jobs after graduation.

Why we need international students

Through conducting research, developing technologies and creating new products and industries, international STEM workers are key to drive economic growth, which in turn increases employment opportunities and wages for all U.S. workers.

In a study published by the National Bureau of Economic Research, international students in the United States are twice more likely than native-born workers to generate and commercialize patents that increase U.S. labor productivity. This innovation also has positive spillover effects on native-born workers.

Additionally, international students are crucial for establishing global connections between their hometowns and U.S. host cities- making a net contribution of over $26 billion to the U.S. economy in the 2013.

Even in schools, international students bring unique perspectives and experiences that promote cultural understanding amongst all students. I believe that this diversity in culture, politics, religions, ethnicity, and worldview is crucial for a fulfilling educational experience.

Image from Google.

America’s success was built by immigrants. If we are closing our doors to them, we are only dooming ourselves.