Compliance Whiplash: ICE Establishes, and then Rescinds, Plan to Create OPT Employment Compliance Unit

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Earlier this week, on January 26, 2021, the Student and Exchange Visitor Program (SEVP) rescinded its  intention, announced less than two weeks earlier, to develop an OPT Employment Compliance Unit. Immigration and Customs Enforcement’s (ICE) compliance-focused plan included close collaboration with other government agencies.

According to SEVP, following additional reviews of ICE’s current Optional Practical Training (OPT) compliance efforts, much of the work to be designated to the OPT Employment Compliance Unit is already being performed by SEVP and therefore they determined the additional unit is not needed.  While we are uncertain as to the internal discourse leading up to the quick rescission, it is likely that new administration team members reviewed the optics of the unit, the timing of the announcement (a week before the inauguration), and the potential impact on foreign students wanting to study in the U.S., before deciding to reconsider the rollout of the unit.  While humanitarian actions, including the focus on DACA and TPS have been the initial focus of the Biden administration, we are hopeful that they will turn to business and employer issues in an effort to keep the U.S. competitive globally. We expect an enforcement-minded, but practical approach; this early action should not be viewed as an indicator of anything otherwise.

Previously, SEVP announced on January 13, 2021, its plan to develop an OPT Employment Compliance Unit to investigate claims of misuse against participants and employers.  This unit would have been dedicated full-time to compliance matters involving wage, hours, and compensation within OPT, OPT extensions, and Curricular Practical Training (CPT).

As detailed in our earlier blog, foreign nationals who hold F-1 visa status may hold two types of employment authorization:

  • Curricular Practical Training (CPT), which is tied to courses and associated with F-1 students completing studies; and
  • Optional Practical Training (OPT), which most F-1 students apply for after completion of a degree program. All F-1 students are eligible for twelve months of OPT that may be used pre-graduation or post-graduation.  F-1 students who are enrolled in STEM degree programs and whose employers participate in E-Verify are eligible for an additional twenty-four month period of employment authorization.

Per the initial Immigration and Customs Enforcement (ICE) announcement, under the current framework, SEVP is unable to assess any impact OPT programs have on U.S. workers and foreign students who are work authorized through these programs.  Through the proposed compliance unit, SEVP would have attempted to confirm that the work conditions of foreign students employed through the OPT extension are commensurate with the terms and conditions of employment for other similarly situated U.S. workers, as the employer has attested to, as required by law.

To provide historical context, the regulatory process leading to the 2008 OPT extension anticipated that approximately 12,000 students per year would be affected by the extension.  By 2019, more than 135,000 students were authorized to participate in the OPT extension program.  Further, in 2019, SEVIS records with authorizations to participate in OPT, OPT extensions, or CPT cumulatively surpassed 536,000.  As these programs have grown rapidly, and per SEVP, are more impactful to the U.S. labor market than foreseen, SEVP emphasized its review objectives to be achieved through the proposed OPT Employment Compliance Unit as critical.

In particular, the OPT Employment Compliance Unit would have been responsible for the following:

  • Recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure OPT programs operate in a lawful manner at U.S. worksites;
  • Identifying any evidence of unlawful practices within OPT programs and notifying the appropriate authorities, such as the Department of Labor (DOL) and the Department of Justice (DOJ) to initiate further investigation; and
  • Evaluating whether employers are adhering to the attestations and training plans (e.g. Forms I-983) required under the OPT extension, which would have included on-site visitation.

SEVP’s previously stated rationale in forming the OPT Employment Compliance Unit was to ensure OPT programs do not harm U.S. workers or foreign student employees.  Accordingly, this unit would also have been tasked with publishing an annual report regarding any impact of OPT programs on U.S. workers, including detailed information on the duties, hours, and compensation of OPT workers.  The report, which was expected to release its first publication by July 31, 2021, on ICE.gov, would have allowed for comparisons against DOL data.

It seems reasonable ICE will continue to use the tools already in place to  meet the objectives stated in the original SEVP announcement “to advance our regulatory pledge to protect U.S. workers and ensure that the OPT programs do not harm foreign students or the labor market.”

We are confident that the new administration will also focus on protecting U.S. workers’ jobs. However, we also expect that it will recognize the need for U.S. companies to have access to the best and brightest global talent, starting with foreign students, educated here in the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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