In Quandary over OPT and H1B controversies? Demystifying OPT and H1B myths

When it comes to education abroad, the US has always maintained its position as the destination of choice, especially among Indian and Chinese students who comprise of majority of international applicants. A key factor influencing the choice of country has been the provision of Optional Practical Training (OPT). Under the OPT, a student upon completing his Master’s degree can choose to obtain valuable industry experience by working with a corporation based in the USA. While the OPT period lasts for 12 months after completion of the degree, under the Obama administration, students studying in STEM programs were granted the freedom to avail of a 24-month extension to the OPT. The prospect of gaining international corporate exposure in the heartland of capitalism while earning six-digit dollar salaries for a potential 36 months in total ensures that the STEM (Science, Technology, Engineering, Mathematics) programs attract the bulk of international student applications.

No surprise then, that any news regarding the OPT often causes a major hysteria (of elation or panic) among prospective international students. The latest article in the Times of India Students cannot work at client-sites during the OPT is the latest such media byte causing several students planning for their studies in the US to re-evaluate their academic strategy. According to the article, an interpretation of a particular clause in the set of employers’ obligations by the US immigration agency debars students who choose to avail of the OPT opportunity post completion of their degrees from working at the location of their employers’ clients. In case you are wondering what this bodes for you, this article would help you analyse the implications of the same.

Companies choose to recruit students from a long-term perspective. No employer, be it an OPT employer or otherwise, would prefer or can afford to recruit personnel only for training purposes. Therefore, when a student is granted employment by a company during the OPT period, it is always with the vision of incentivizing a long-term commitment from the employee. It is for this purpose, that immediately after recruitment under the OPT is finalized, employers begin to apply for the H1B Visa for their international recruits. Of course, various rumours regarding the H1B Visa have been in the air, and from our side, we have sought to correct the narrative by helping prospective students to accurately assess the impact of such policy shifts, which contrary to un-informed opinions, hold good news for students destined to the US. You may refer to the article that we have published on the H1B issue Strict H-1B Visa Norms – A Boon for F1 Visa Students

Moreover, almost no employer would want to commit the mistake of false bravery by putting an untrained and under-experienced recruit in a client-facing role immediately after hiring. Most companies upon hiring have elaborate well-designed training programs that hope to polish a student’s raw skills to industry level expectations. Therefore, by the time an employee on OPT is in a position to have extensive client interactions, there is a very high probability that he would have managed to secure the H1B Visa.

In addition to this, another factor that plays in favour of international students is the lack of supply of local (read American) STEM Masters graduates to fulfil the employers’ quantitative demand for new talent. As seen from the Foreign Students and Graduate STEM enrolment, in a scenario where a high majority of STEM graduates are international students, the US policy-makers cannot afford to create a situation of disenchantment for its STEM programs among prospective international students without creating a serious shortage of high-skill tech workforce and researchers.

Coming to the legal technicalities, the clause under question falls under the Employer’s Training Obligation, which states that STEM OPT employers shall not devolve the student training obligations to their clients or customers. You can read the list of compliance requirements by following this link USCIS mandated STEM OPT compliance regulations for students and employers. According to the rules, both the student and the employer have to formalize a set of training goals and regularly update the Designated School Official (DSO) of the student’s progress by submitting annual training progress as specified in the Form I-983 . The reason for the existence of the clause under discussion (that OPT employers should not devolve the student training to their clients) is because the Department of Homeland Security (DHS) needs to have access to the students. They can have this access only at the location of the E-verify Participating STEM OPT Employers. The clients of such employers may or may not be registered under E-verify, and as such, if the student is at such a client’s location, the DHS may not have access to the student. Under normal circumstances, in case the DHS wishes to have such personal access to the students, it sends a notice to the employer 48 hours prior to visiting the office of the employer. It is only and only on account of a complaint regarding the non-compliance of OPT rules that a DHS visit without issuing this prior notice is triggered. <Insert hyperlink to the ‘STEM OPT Extension – All the Rules’ document attachment>

Clearly, an unintimated visit by the DHS would be a rarest of rare occurrence, because OPT employers would try to ensure they do not attract any scrutiny and potentially incur litigation costs. One needs to remember that the clause which the TOI might be referring to has always existed in the past; it is not a new policy that is sought to be introduced for legislation. Therefore, if there is status quo in terms of policy, definitely there would not be any different result due to implementation of the said policy. The US is not a country where such a policy could have been knowingly side-stepped by such a large number of employers in so many cases of OPT employment in the past. Thus, if the existence of such a policy has not created any compliance-related problems in the past, there is no reason to believe that the continuation of such a policy would pose any such problems in the future. Perhaps, this is a reason why it is only the Times of India that has published an article on this issue; no other major news outlet, Indian or international, has made any recent mention on the topic.

TL: DR:

• There is no new interpretation of the policy clause – it has always been there and is so clearly spelt out that there is no scope for an alternate interpretation. Employers have always complied with in the past and will continue to do so. So, if international students’ interests have not been hurt in the past, they would not be in future.
• The policy shifts with regard to granting of H1B Visa will ensure a smoother and faster progress from F1 to H1B for students availing of the OPT.
• The US needs highly skilled international technical workforce as much as the as the said workforce wants to pursue studies in reputed American institutes and gain few years of experience in working with innovation-pioneering American MNCs. The American dispensation is wise enough to not disturb this harmonious order.