Optional practical training by international students in US will now be subject to more scrutiny
- Under the new policy, school officials may conduct independent research, to determine the nexus between the OPT and student’s course
- A misleading job title entered at the OPT stage, could result in denial of H-1B later, if the work profile continues to be similar
Under the new policy guidance issued on September 27, ‘Designated School Officials’ (DSOs) will be required to confirm that the graduate students are employed during their training in positions related to their major area of study. The extent and detail to which a DSO must do so, has been left wide open by the US Immigration and Custom Enforcement (ICE), which is the governing agency.
Immigration attorneys are of the view that a misleading classification of the job title, by the DSO, may later be the ground for rejection of a work visa for the erstwhile student.
International students in the US, can obtain work experience for a year. This tenure can be extended for a further period of two years, by those in the science, technology, engineering and mathematics (STEM) field.
Under the new guidance, it is the STEM students who are likely to be most impacted, as they are already having a job when seeking the two year extension. Further, costs will rise for educational institutions, owing to added responsibilities cast on the DSOs. In addition, employers hiring OPT students may seen an uptick in the site visits by ICE to confirm the information detailed by the DSO, say immigration attorneys.
Currently, there are nearly 2 lakh students from India, studying in the US. Statistics pertaining to fiscal year 2017, show that Indian students dominated the STEM-OPT allotments – over 50,000 were engaged under the OPT program
International students are responsible for providing a description of how their job relates to their major area of study, which the DSO must review and retain. When the DSO has concerns about whether the job directly relates to the student's major area of study, additional documentation may be required to demonstrate the connection, states the guidance note.
A few years ago, the Student and Exchange Visitor Information System (SEVIS), which is a centralised mechanism for tracking student employment, had introduced a field ‘Explain how employment is related to course work,’ that was to be entered. This could be entered by the students via a portal or directly by the DSO. As an alternative to entering data in the system, the DSO could obtain an explanation and maintain it in the student’s records.
“However, the level of scrutiny regarding the connection between the degree and training opportunity is new, as well as the instruction that the DSOs should provide detailed analysis, request for additional evidence as needed and potentially make use of internet resources that provide a general ‘crosswalk’ between the jobs and study programs. DSOs are apparently now to become immigration benefit adjudicators,” says Adam Cohen, attorney with Siskind Susser, an immigration law firm.
DSOs may for the purpose of their research use websites such as those of the Department of Labour. Inputting the job duties of an OPT student into another system, such as that of the labour department is referred to as ‘cross walk’. To illustrate, by doing so, the DSO could arrive at the job title of a computer programmer.
If post the OPT, the employer seeks to sponsor the erstwhile student for an H-1B with the same or similar duties, the title of a computer programmer as fed earlier into the SEVIS system, could result in rejection of the H-1B application, as it will not be treated as a ‘speciality occupation’.
The data entered into the SEVIS system by the DSO, based on internet research, could contradict representations made by the sponsoring employer in an H-1B application, resulting in challenges, explains Cohen.
“We are likely to see increased site visits at OPT work sites to confirm the information fed into SEVIS about the work and its connection to the student’s major field of study,” says David Nachman, managing attorney at NPZ Law Group. Immigration advocates also state that students must involve their employers and immigration attorneys if they are to fill in data explaining how the OPT employment is related to their study course.