On 1/13/2021, the Student and Exchange Visitor Program (SEVP) determined that it must take bold action to ensure that the Optional Practical Training (OPT) programs operate in a manner that does not harm U.S. workers or foreign student employees, consistent with regulatory and statutory law.
Recently, U.S. Immigration and Customs Enforcement (ICE) discussed strategies with subject matter experts at the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services aimed at fulfilling SEVP’s regulatory requirements. Under the two-year OPT extension, the duties, hours, and compensation of a foreign student who participates in the program must be commensurate with terms and conditions applicable to the employer’s similarly situated U.S. workers. More broadly, ICE’s mission has always included a focus on ensuring lawful practices at U.S. worksites.
SEVP is currently unable to evaluate the impact OPT has had on U.S. workers and foreign students who have obtained work authorization through the programs. To remedy this, SEVP is announcing the development of a new unit — the OPT Employment Compliance Unit — that will be dedicated full-time to compliance matters involving wage, hours, and compensation within OPT, the OPT extension, and Curricular Practical Training (CPT). This unit will publish a public-facing report at least annually on its findings, which will include detailed information on duties, hours, and compensation of OPT workers in a standard formatting that will allow for comparisons against DOL data. The first report will be published on ICE.gov by July 31, 2021.
This unit will also be responsible for recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure that the OPT programs operate in a lawful manner at U.S. worksites. The unit will identify any evidence of unlawful practices within the OPT programs and notify the appropriate authorities. For example, if the unit were to detect evidence that an employer is using OPT in a discriminatory manner (e.g., as a means to hire only foreign nationals, or only individuals of certain nationalities to the exclusion of others), or in a manner that negatively impacts wages, this unit may notify DOL and the U.S. Department of Justice of such evidence, where HSI is unable to address such matters, so that the evidence can be investigated further.
The OPT Employment Compliance Unit will also evaluate whether employers are adhering to the attestations and training plans required under the OPT extension, which will include on-site visitation, as per the regulation. This evaluation will ensure that employment through the OPT extension is 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.
