Despite the political and legal fights standing in the way of President Obama’s executive actions to expand relief for undocumented immigrant children and parents, other executive actions on immigration are moving forward. Starting in May, spouses of H-1B workers can apply for employment authorization. Next up are steps to improve the Optional Practical Training (OPT) program.
A November 2014 executive action tasked the Department of Homeland Security (DHS) with developing recommendations on how to expand OPT, which allows foreign-student graduates on F-1 visas to work full time in the United States for up to 12 months (29 months for science, technology, engineering, and mathematics (STEM) degree holders) after receiving their U.S. degrees. There is no limit on the number of OPT workers authorized per year, but the program requires approval by the graduate’s school and DHS.
The president does not need congressional approval for changes to the OPT program, since it was created by regulation rather than legislation. In fact, when comprehensive immigration reform failed in 2007, President George W. Bush expanded OPT from 12 months to 29 months for STEM graduates.
About 38 percent of the 954,000 foreign students on F-1 visas, or 362,500, were studying in STEM fields during the 2008 to 2012 period, and at the same time 200,750 OPT participants had a STEM degree (according to my analysis of OPT data obtained through a Freedom of Information Act request). Currently, of the foreign STEM graduates working under the OPT program:
- 15.2 percent or 30,585 graduated with a U.S. bachelor’s degree
- 62.6 percent or 125,619 graduated with a U.S. master’s degree
- 22.2 percent or 44,542 graduated with a U.S. doctorate degree
Digging deeper into the data revealed an alarming fact: The majority of STEM master’s degree graduates from Southern India attended for-profit, unaccredited schools that use the F-1 visa system for employment rather than educational purposes. For example, Hyderabad, India is the number-one source of STEM foreign students into the United States, yet high on the list of schools those students attended were Tri-Valley University and University of Northern Virginia, both of which have been shut down for visa fraud. Similarly, in mid-March 2015 Immigration and Customs Enforcement officials raided three schools in Los Angeles for a similar foreign-student visa fraud scheme. These unaccredited schools offering bogus master’s degrees flourish since they can offer their STEM graduates longer work authorization under OPT and the ability to qualify for the additional 20,000 H-1B visas set aside for advanced-degree graduates of U.S. universities.
Furthermore, since there are no minimum wage or salary requirements under the OPT program, employers can easily exploit foreign-student graduates by paying them little or no wages as they wait for an employment-based visa such as the H-1B. Moreover, once foreign graduates obtain an H-1B visa, their wait time for employer-sponsored permanent residency (a green card) can take longer than 10 years.
President Obama should use his executive authority to reform the OPT program so that it retains qualified foreign students while protecting them and other workers:
- First, expansion of the OPT program should apply only to graduates from schools accredited by an agency recognized by the Department of Education or approved by the secretary of education. My research indicates that 61 percent of the 231,000 foreign students who enter the U.S. annually to pursue a bachelor’s degree or higher study at top-tier accredited schools (Carnegie-ranked doctoral-granting universities with very high or high research activity).
- Second, the president’s order should set wage guidelines, similar to those in the current H-1B visa program, for employers hiring graduates under OPT for more than one year. This requirement would protect foreign workers from exploitation and mitigate adverse effects on the wages of native-born workers.
- Third, fixing the OPT program is just a temporary solution to a larger problem that requires legislation, and the president should work with Congress on a bill to allow foreign graduates from accredited schools to apply directly for green cards. Currently, many foreign-student graduates rely on H-1B employment-based visas to stay longer than is allowed under OPT, yet only 26,000 of the annually available 85,000 H-1B visas were granted to foreign graduates of U.S. universities (based on analysis of 2010 FOIA data). Furthermore, U.S. immigration law caps any one country’s share of green cards to 7 percent of the total, and this rule contributes to a huge backlog for Indian and Chinese nationals, the two largest foreign-student populations.
These actions could provide pathways to retain highly qualified graduates from American higher educational institutions, an important step toward preserving the United States’ status as a hub of innovation and knowledge creation.