The STEM Optional Practical Training program is available to eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities. The OPT program itself was launched in 1992; in 2008, Michael Chertoff, then secretary of the Department of Homeland Security, controversially extended the program by 17 months for graduates of STEM-certified programs. The extension was expanded to 24 months in 2016. Eligible business school graduates may apply for the additional two years of work on top of the initial one-year, post-completion OPT granted to all non-STEM-degree F-1 visa students; to be eligible, they must have a STEM degree from an accredited U.S. school and must secure employment with an employer that includes a minimum of 20 hours of work per week and formal training within the STEM field.
The OPT program is seen as a way for B-school grads to acquire an H-1B visa, which are limited by law. In 2017, 180,440 new H-1B visas were issued. But according to just-released data by the Institute of International Education, the policy changes allowing STEM students to remain in the U.S. on OPT opportunities for three years after the completion of their studies is the likely biggest factor driving a massive increase in students on OPT programs, which increased by 9.6% to 223,085 between 2016-2017 and 2018-2019.
In 2014, the Washington Alliance of Technology Workers sued Homeland Security, saying it exceeded its authority in both the establishment of the STEM OPT program and later extensions. WashTech’s lawsuit challenging the legality of OPT — filed because the union, which represents computer programmers, says the program hurts American tech workers — was allowed to proceed in July 2019 by the U.S. District Court for the District of Columbia. The court set a deadline of October 25 for accepting amicus curiae briefs, which are arguments written by outside parties seeking to influence the court’s decision. A decision on the case is expected in May.
Big Tech, including Apple, Google, Microsoft, and Facebook, have been granted the right to participate in the case; they argue that the OPT is a vital pathway for highly skilled international workers to put their talents to work helping the U.S. economy. But Ron Hira, associate professor in the Department of Political Science at Howard University, says the program is ripe for exploitation by schools and employers looking to get around visa restrictions.
“There are some questions about whether the OPT really should exist at all, because it was supposed to be a pilot project back in the early 90s,” Hira, who studies the program, tells Poets&Quants. “From my point of view, aside from the legal stuff, I think you can justify — from an educational standpoint — 12 months, that there’s some training and all that makes some sense. I think it’s really a huge stretch to argue that someone needs 36 months for training internships.”
H-1B & OPT: RIPE FOR ABUSE
There’s an X-factor in all this: Trump. The current administration has targeted the H-1B visa program for changes, Hira says, but it’s anyone’s guess when those changes will be enacted, if ever. Currently they seem to be held up by the Office of Management and Budget.
Hira, who has written about the OPT as a research associate for the nonpartisan think tank Economic Policy Institute, says the DHS under Trump has said, “Hey, we’re going to rescind this rule anyway. And so you should dismiss the lawsuit because we’re going to rescind it.” But it may not be rescinded after all because “my understanding is, behind the scenes, that there’s a difference of opinion within the Trump administration. There are some folks who want to rescind the rule, but there are other folks in the administration that are closer to business interests that would want to keep the OPT in place. So I don’t know. The Trump administration hasn’t been exactly clear on what exactly they’re doing.”
So the lawsuit goes forward. Meanwhile, Hira says, the OPT program as it stands is ripe for abuse — and it is being abused by universities and employers.
“I think this is a head fake,” he says. “It’s policy by ruse, right? They had to do jujitsu and all kinds of weird contortions to make it seem like it’s training — when, in fact, everybody who’s involved in the OPT views it as a work visa.
“So DHS had to say, ‘It’s not a work visa. It’s not a work visa. It’s not a work visa.’ Even though it is a work visa. And every single person who’s involved up and down the chain, whether it’s the employers, the students, OPT workers themselves, or the universities, they all market it as, ‘It’s a work visa.'”
His solution? Return the OPT program to a maximum 12 months.
“If it’s limited to 12 months, you don’t have to worry as much about some of the labor market rules and things like that. You still want to make sure that workers aren’t being abused, right? So there’s got to be some oversight. Right now, the whole thing is pretty cockamamie: The way they created it, you’ve got the universities, who inherently have a conflict of interest, who are the ones who are stamping it, whether the employment is valid, whether it meets the requirements. And that needs to change — you can’t have the universities overseeing the program. It just doesn’t make any sense if you want to have actual compliance, and if you were serious about compliance and accountability — and that also is important for protection for the actual students themselves, so that they’re not exploited.
“It’s a little weird that the business schools are so focused on this since the whole rationale behind the extension was around STEM. The argument around STEM was that there is some systemic shortage, which of course is not really true, so why the business schools have been trying to get designated as STEM, and they’ve created these programs that are supposedly STEM, is a little strange. It has nothing to do with the labor market, right? Which was the whole idea that STEM was somehow special. It’s really about keeping the international student numbers up, from the university standpoint, but we shouldn’t be making policy that benefits those private actors, right?
“I understand why they want it, but why is it good for America and American workers? I don’t see how you can make that justification.”
Asked about the open letter signed by 50 deans from U.S. business schools last month that calls for an increase in the current cap on H-1B visas and an exemption toward the cap for in-demand jobs, Hira notes that he met recently with one of the letter’s signatories, Bill Boulding, dean of the Fuqua School of Business at Duke University, at an event sponsored by the Graduate Management Admission Council, of which Boulding is chair of the board of directors. Without revealing what they discussed, Hira says, “the general gist of it was that they had already made up their minds about the need for more H-1Bs and the OPT and that there’s nothing wrong with any of the programs, and why would anybody object to an expansion? So it’s weird. It’s like they’re talking past people. They think they’re just so much smarter and better than everybody else that people should bow down to what they have to say. And you look at those signatories and they put the face of Duke or Tuck forward, but there’s a lot of business schools that aren’t of that caliber, right?
“I was just surprised. As an academic, you would think that there would be some exchange and interchange. I don’t know why they invited me in the first place if they didn’t want to have a conversation, but it was very odd. I found the whole thing very odd.”
‘LIKELY THAT THERE WILL BE OTHER PROGRAMS THAT WILL WANT TO DO THIS’
Peter Johnson at UC-Berkeley Haas says he is not concerned about the U.S. District Court case that potentially could wipe out the OPT program.
“I think it’s just another example of how tense the political situation is around any topic that people construe as being related to immigration,” he tells P&Q. “And I believe this is not the first lawsuit. There have been others that have come and gone, too. So no, at the moment I’m not concerned about it, but I am watching to see how it gets resolved.”
More than the case, he and many others at Haas have been mindful about what the school’s move to STEM will mean for peer schools.
“Since we let our students know about this early in the fall, I’ve had a number of phone conversations with peers from other institutions who are asking how and why we sought this CIP code change and what impact it might have on our students. So yes, I think it’s likely that there will be other programs that will want to do this. And I think some programs are simply going to stick with, ‘Hey, we have a specific part of the program in a concentration or a major that is already designated this way, and we don’t want to pursue that for the entire MBA program.’
“The bottom line for us is that we’re always happy when anything that we do creates greater opportunities for our students.”