DHS Arrests 15 Individuals On OPT, Continues High Scrutiny Of Foreign Students, Warns University DSOs

Jackson Lewis P.C.
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The Department of Homeland Security (DHS) has announced the arrest of 15 individuals who claimed to work on Optional Practical Training (OPT) for nonexistent companies.  In addition, USCIS notified 700 OPT recipients suspected of being complicit in similar activities that it would revoke their employment authorization.  Further, USCIS notified an additional 400 OPT recipients that they would not be allowed to renew their work authorization because they are allegedly working in positions unrelated to their fields of study.

Approximately 223,000 students participate in OPT programs.  Until relatively recently, the United States always has been a popular destination for foreign students.  However, the Administration has enacted restrictions and scrutinized key programs that have done just the opposite.  As a result, the United States’ share of foreign students is dropping.

Since 2017, in addition to increased scrutiny of immigrant and nonimmigrant filings across the board, the Administration has instituted targeted policies and proposed rules that have created much uncertainty and anxiety among both current and potential foreign students. This includes restrictions such as the 2017 Travel Bans, enacting policies making it more difficult for students to travel, preventing new students from coming to study at universities that have gone fully remote due to COVID-19, and the proposed new rule that would make it more costly and more difficult for students to remain in the United States throughout the duration of their academic programs.

Beyond these rules and proposals, the Administration has continuously expressed skepticism and concerns about the OPT program, which allows students to remain for a limited period of time to train by working in their field of study.  Most analysts have seen OPT as a plus, as international students contribute over $40 billion to the economy yearly.  However, while OPT has been a big draw for foreign students who wish to train in the United States to pursue their professions, the Administration has viewed the program in a negative light, claiming it potentially enables employers to hire lower wage foreign workers at the expense of U.S. talent.

As a result, in 2019, DHS announced it would perform OPT requirement compliance checks by increasing inspections at worksites of companies employing students using STEM OPT.  Then, in January 2020, the Counterterrorism and Criminal Exploitation Unit of DHS commenced Operation OPTical Illusion (OOI), which targeted nonimmigrant students potentially involved in fraud with regard to OPT.  This came to a head on October 21, 2020 with the arrest of 15 individuals.

At the time, the Acting Director of DHS, Ken Cuccinelli, warned that this was only a first step and that DHS will also target Designated Student Officials (DSOs) at universities who enable such activities through the Office of the Inspector General (OIG).  DSOs advise foreign students and communicate their status, work authorization, and other information to U.S. Immigration and Customs Enforcement (ICE) primarily through SEVIS (Student Exchange Visitor Information System), the database program that manages and tracks foreign students while they are in the United States.  Esther D. Brimmer, the Executive Director and CEO of NAFSA: Association of International Educators, noted that it is “reckless” to threaten and scapegoat DSOs for economic problems that are not even related to OPT particularly, because “[i]t is not the responsibility of DSOs to investigate international students’ OPT employers.”

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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