Wednesday, April 1

Lawsuit challenges OPT program, potentially impacting international students


A Washington labor union is challenging the Optional Practice Training program, which allows international students with student visas to work in the United States after graduation. (Daily Bruin file photo)


A lawsuit threatens the future of a post-graduate work program for international students, potentially impacting those hoping to study in the United States.

The Optional Practical Training program allows international students who have F-1 statuses and student visas to work in the U.S. for a collective total of 12 months while completing their studies and/or after graduation. STEM students, however, are allowed a two-year OPT extension.

Washington Alliance of Technology Workers, a labor union for Washington technology workers, filed suit against the U.S. Department of Homeland Security in 2016, arguing it was beyond the DHS’s scope to let F-1 students work under the OPT program post-graduation.

In July 2019, the U.S. District Court for the District of Columbia ruled that WashTech could challenge the legality of both the post-completion OPT program and the two-year STEM OPT extension.

In response to the lawsuit, 118 public and private universities and colleges filed an amicus brief in November 2019 to defend OPT and STEM OPT for their international students.

The amicus brief argued international students are essential to the quality of the U.S. higher education system.

“International students play a significant role in fostering the inclusive and diverse atmosphere amici strive to create on campus,” the brief reads. “Their incredible diversity of backgrounds and ethnicities ‘fuels innovation and creativity’ and improves the educational experience for every student, foreign and domestic.”

However, the University of California was not among the colleges and universities that filed the amicus brief.

“The University of California receives many requests for amicus support on different issues but UC is unable to participate in all of these cases,” UC spokesperson Andrew Gordon said in an emailed statement. “We cannot comment further on the University’s legal decisions.”

The UC system currently enrolls about 30,000 international undergraduate students and almost 14,000 international graduate students, according to UC enrollment data.

Celine Tsoi, a second-year psychology and political science student from Hong Kong, said the possibility of terminating the OPT program poses a threat to international students looking to apply to schools, including UCs, in the U.S. for their undergraduate degrees.

“For people that want to stay here, going to America in the first place is probably not a viable option,” Tsoi said.

Vaibhav Gupta, a second-year electrical engineering student from India, said he thinks WashTech’s suit only poses a minor threat to the international student population at UCs because the incentive for international students to study in the U.S. remains high.

“If you fall from 95% of the foreign student population to 90%, sure, you’re falling, but you’re still at 90%,” Gupta said.

However, the OPT program provides many benefits to international students that would not be available otherwise, said Paolo Botta, a third-year computer science student from Italy.

“It gives the possibility for (international) students to try out a job,” Botta said. “It’s definitely better than the alternative if the alternative is you can’t work in the U.S.”

Eliminating OPT could also harm the American economy as international students are a valuable asset to the national job market, Botta said.

“If you make it harder for international students to get jobs … on average, less qualified people are going to be chosen for these jobs,” Botta said. “So, overall, (eliminating OPT) brings damage to the (U.S.) economy.”

Other nations could benefit from employing U.S.-educated international students, according to the amicus brief. If OPT is terminated, students will likely apply their college skill sets to jobs outside the U.S.

“(International students) would immediately depart for their home countries or for other nations glad to host the superb talent that our education system produces,” the brief reads. “In other words, other nations would capture the return on America’s investment.”


Comments are supposed to create a forum for thoughtful, respectful community discussion. Please be nice. View our full comments policy here.

  • CitizenOfACorruptNation

    OPT amounts to the government offering a $10,000 per year incentive to employers for hiring a foreign student instead of a U.S. citizen or permanent resident. This bonus takes the form of the employer being exempt from paying payroll tax for their foreign student workers (due to their student status, which they technically still have under OPT in spite of having graduated). Why hire Americans, eh?

    Since this tax exemption from payroll tax was pointed out in the lawsuit against the Dept. of Homeland Security, and has been one of the major points raised by critics, DHS is well aware of it. Yet they refuse to address it or even acknowledge it.

    In contrast to DHS previous statements, in which they openly admitted that they intend OPT as an end-run around the H-1B cap, they now describe OPT in warm and fuzzy terms of “mentoring” (putting the “T” back into OPT). That raises several questions:

    If the U.S. indeed “needs” the foreign students to remedy a labor shortage, why do these students need training? The DHS/industry narrative is that the U.S. lacks sufficient workers with training, while the foreign workers are supposedly already trained. And, if workers with such training are indeed needed, why won’t these special mentoring programs be open to Americans? Why just offer them to foreign students? Since DHS admitted that its motivation in OPT is to circumvent the H-1B cap, does that mean that if the cap were high enough to accommodate everyone, these same foreign students wouldn’t need training after all?

    • Bruin

      The truth is colleges need these international students to fund their programs, unless domestic students are willing to pay their tuition without financial aid like international students. Domestic or international, everyone needs a job after college. If international students do not have the option to work in US after college even just for a year, then why even bother choosing to come to a US college in the first place if the degree can not even help you? There are many other countries in the world that can provide quality education as well and I’m sure most international students are able to afford education elsewhere. So, it is unfair to international students to be treated as money cows that should be immediately disposed after graduation.

      • CitizenOfACorruptNation

        The tuition argument is a strange one. I thought with or without financial aid, the school gets its money from someone. Student loan debt among domestic students has skyrocketed, I know that much is true.

        But, regardless, I’m not arguing that foreign nationals should not be allowed to work in the US. What’s “unfair” is that the 3-year STEM OPT program provides a financial incentive to hire a foreign worker on OPT over a domestic worker. As I stated earlier, this “bonus” takes the form of employers being exempt them from having to pay FICA taxes for their foreign OPT workers. What’s “unfair” is that domestic workers are placed at a disadvantage due to the aforementioned bonus the employer receives for hiring a foreign worker over a domestic worker. Yes, everyone deserves a chance to work. That holds true for Americans as well.

        • Bruin

          For companies to hire international students, they need to consider sponsoring these students after the opt program, which would cost a lot of money on legal fees. Therefore, most companies would not even consider hiring international students in the first place. If the tax incentive is as appealing as you described, then how would you explain the limited amount of companies hiring international students even if they don’t need sponsorship right away. If you look at any career fair at UCLA and filter by sponsorship, you will see the drastic change in numbers. Usually out of 100 companies coming to UCLA, only 1-2 would consider hiring international students. It’s even harder for them to be hired.

          • CitizenOfACorruptNation

            “For companies to hire international students, they need to consider sponsoring these students after the opt program, which would cost a lot of money on legal fees.”

            With that argument, you’re opening up a whole new can of worms that would require lots of debate. I’ll refrain. Hint: it has to do with the “prevailing wage” being lower than the market wage, and especially the fact that when applying for a green card, the H-1B visa restricts the beneficiary from any bargaining power, saving the company more than it pays for an H-1B worker.

            “Therefore, most companies would not even consider hiring international students in the place.”

            If the U.S. is facing a dire shortage of skilled labor – as we hear ad nauseam in the media – and if foreign workers have the skills that are in short supply among domestic workers – companies would be more than happy to hire foreign workers without any added incentive.

            “If the tax incentive is as appealing as you described, then how would you explain the limited amount of companies hiring international students…”

            Please cite a source for this claim. Remember, it’s the STEM-degreed foreign national on OPT that has the real advantage. What percentage of, say, tech companies (Apple, Facebook, Google, et. al.) are hiring OPT workers? I believe that’s the real question.

          • Bruin

            I am an international student with a STEM degree who is qualified for the three-year OPT program. I agree that tech companies hire international students. However, I have personally been rejected by Google due to my legal status and for most entry-level positions in tech companies, they do not offer sponsorship, unless you are applying for SE positions.

          • CitizenOfACorruptNation

            Assuming what you’re saying is true (I don’t believe it is), what does that have to do with the fact that the OPT program provides an incentive to employers to hire a foreign worker instead of an American worker? I’m not just making it up – it’s a well-known fact.

          • Bruin

            The program I applied for at Google is a two-year program while I have three-year OPT where I do not need sponsorship. Based on your argument, the company would have only benefited from hiring me. However, I was rejected specifically due to my legal status, so I guess the incentive is still not good enough for a tech giant to disregard my legal status.

          • CitizenOfACorruptNation

            Why do you suppose they (among many other tech companies) are fighting so hard to save the program?

            https://fortune.com/2019/11/25/opt-optional-practical-training-google-apple-facebook-us-work-visas/

            From the link: “As the Supreme Court weighs the fate of the DACA program, 50 large tech companies, along with 11 professional and advocacy groups, have turned their concern towards another looming court case that threatens to end the largest guest work program in the United States, Optional Practical Training (OPT).

            An amicus brief filed today by FWD.us, an advocacy group founded by Facebook’s Mark Zuckerberg, reads as a who’s who of Silicon Valley. Tech giants like Google, Apple, Amazon, Facebook, Airbnb, Bloomberg, Intel, Microsoft, Tesla, Twitter, Uber, and Zillow have all signed on in support of the program, which allows international students in the United States on F-1 visas to remain in the country and work in fields akin to their degree for one year or for up to three years if they are in a STEM-related industry.

          • CitizenOfACorruptNation

            Then, there’s this. From U.S. Immigration and Customs Enforcement, the top 200 employers that hire OPT workers. Google is in the top five.

            https://www.ice.gov/doclib/sevis/pdf/data_Top200_EmployersPrePostCompletion_OPT_Students2017.pdf

            Data trumps anecdotes masquerading as data.

          • Fumiko

            Endless Stream Of Payments – Get Paid Immediately. Earn almost $500 every single week.You’re about to change your own life for the better. Take a look and read a number of these advice which I am presenting to youpersonally. If you are serious and motivated just like I am, that really is your once in a lifetime prospect! Require Action NOW woo.by/gI

          • K. C.

            Do you even know how opt works?
            Most US companies do not even consider or look at your resume if you don’t have permanent work authorisation. However, in some stem fields, majority of the students at these universities are international and not american. That said, the american students in stem will still get hired over international students who need visa work sponsorship. On the tuiton issue, you saying that tuiton will come in either way, the universities choose to admit international students because they can pay tuiton 3 or 4 times more than American students do. And they need this money to run the institutions.

          • CitizenOfACorruptNation

            Available statistics for 2017: 2017 Top 200 Employers for Pre‐ and Post‐Completion Optional Practical Training (OPT) Students

            https://disq.us/url?url=https%3A%2F%2Fwww.ice.gov%2Fdoclib%2Fsevis%2Fpdf%2Fdata_Top200_EmployersPrePostCompletion_OPT_Students2017.pdf%3ATlqrWo8RMfZYFzcT_3OAlka4dj0&cuid=1497270

            In 2017 alone, Amazon employed 3,655 foreign workers on OPT. From various sources, Amazon’s average starting salary is approximately $108,000. Social Security and medicare tax rates for employers is 7.65% combined (6.2% and 1.45%, respectively). Do the math. On one worker alone, Amazon saved $8,262 by preferring an OPT worker instead of an American worker. On 3,655 OPT workers, Amazon saved $30,197,610 by preferring an OPT workers instead of an American workers.

    • Vaishnavi Ramesh

      I’m on my OPT and I pay Federal and State taxes just like others.

      • CitizenOfACorruptNation

        I wasn’t referring to the employEE, but to the employER. Moreover, I wasn’t referring to state taxes, but to FICA taxes. Please read more carefully.

        • Vaishnavi Ramesh

          That sounds insensible. Why would temporary non resident aliens like students on F1 Visa have to pay FICA taxes when they don’t get to use the Medicare and Social Security Benefits that’s administered by FICA? If you’re on F1 Visa, you can’t be covered by Medicare and don’t get SS. If you move to a employment Visa like H1, yes, you start paying your FICA. The system is set up the way it is for a reason.

          • CitizenOfACorruptNation

            Well, if the employEE IS exempt from paying his share of FICA, then so is the employER exempt from paying their share of FICA. Read all about it here.

            But, again, the argument isn’t whether the foreign student/graduate should or should not be paying into social security and medicare. Personally, I don’t care whether foreign students/graduates pay taxes. The argument is that the employer has a financial incentive to hire a foreign worker instead of an American worker or permanent resident. Please stop making this argument about the employEE, when it’s clearly about the employER.

          • CitizenOfACorruptNation

            That sounds insensible. Why would temporary non resident aliens like students on F1 Visa have to pay FICA taxes when they don’t get to use the Medicare and Social Security Benefits that’s administered by FICA? If you’re on F1 Visa, you can’t be covered by Medicare and don’t get SS. If you move to a employment Visa like H1, yes, you start paying your FICA.

            Again, you’re making the argument about the employEE, when the argument is about the employER. Personally, I don’t care if a foreign student/graduate is paying into social security/medicare or not.

            …if you want to argue that the employer doesn’t have to pay FICA the tmatch foremporary F1 students, That doesn’t justify enough as an incentive for the employer because employers employ people with the intent to keep them long.

            This argument baffles me.

            Having to then consider employment Visa sponsorships, that are governed by huge filing fees, lawyer fees, waiting time on request for additional documents right after just one year (in case of OPT) and within 3 years (in case of STEM) is a burden on the employer. The amount of time and money spent on this doesn’t equate to the meager 7.65% match that employers are required to do on FICA.”

            No doubt, when you refer to “employment visa”, you’re referring to the H-1B visa. You claim that the employer has to bear a financial burden when hiring someone on an H-1B visa. Whatever “burden” there may be is more than offset. The underpayment of H-1B workers is well-established fact, not rumor, anecdote or ideology. It has been confirmed by two congressionally-commissioned reports, and a number of academic studies, in both statistical and qualitative analyses. Underpayment of H-1B workers leads to depressed wages overall in the STEM fields that use these destructive visas, hurting domestic workers

            An employer survey conducted by the GAO (GAO, 2003) found that some employers readily admitted to paying H-1B foreign workers less than comparable Americans, but noted that they were nevertheless paying the legally required wage (i.e., the “prevailing wage”), thereby illustrating that the latter is indeed below the market wage.

            The GAO found that, “some employers said that they hired H-1B workers in part because these workers would often accept lower salaries than similarly qualified U.S. workers; however, these employers said they never paid H-1B workers less than the required wage.”[1]

            This jibes with a previous employer survey[2], commissioned by Congress, that found, “…H-1B workers in jobs requiring lower levels of IT skill received lower wages, less senior job titles, smaller signing bonuses, and smaller pay and compensation increases than would be typical for the work they actually did.”

            So two employer surveys, one by the government and the other commissioned by the government, had employers actually admitting to underpaying their H-1B foreign workers. And the GAO shows that the employers admit that the prevailing wage, the legal wage floor for H-1Bs, is a joke. The data in the paper shows the underpayment statistically as well.

            So either you’re misinformed or are just prejudiced towards people who utilize opportunities available to them in a legal way. Let me give you some time to mull over how much of an incentive employers have to employ students on F1 Visa based on all the talking points above.

            You shouldn’t be so condescending. I’ve been studying these issues for a long time, and I know very well of what I speak. And to suggest that I’m prejudiced towards people is completely unfounded and uncalled for.

            [1] H-1B Foreign Workers: Better Tracking Needed to Help Determine H-1B Program’s Effects on U.S. Workforce
            GAO-03-883, US General Accounting Office, Sept. 2003

            [2] Building a Workforce for the Information Economy.
            National Research Council. 2001.

          • Vaishnavi Ramesh

            My apologies to have offended you. I don’t think any of your talking points still addressed your base argument that employers have an incentive to hire f1 students based on how meager they can then dodge 7.5% FICA match. The truth is, they don’t prefer F1 students as their first option unless they can’t find an appropriate candidate. There is a huge burden on the employer to have to settle with an F1 student because they’re likely to hire someone again for the position within three years, if F1 student is not be lucky enough to have a lottery selected employment Visa. All my points on the legal and filing fees and uncertainty in timeline, rejections are all a huge turn off for the employer. I’d appreciate if you moved away from the h1b argument for the sake of winning our discussion and instead address your claim that there is an incentive for employers to hire f1 students. So are you saying that employers have the incentive to hire f1 students so that then they can sponsor them through a really complicated approcah with 1/5 chance of selection and spend thousands on the same, just so that they can low-ball their salary? I’m still trying to understand why you say employers have a big incentive to hire f1 students when clearly they don’t.

          • CitizenOfACorruptNation

            “The truth is, they don’t prefer F1 students as their first option unless they can’t find an appropriate candidate.”

            Because YOU said so, it’s the truth? Do you have some kind of source you can cite to prove that it’s “the truth”?

            “All my points on the legal and filing fees and uncertainty in timeline, rejections are all a huge turn off for the employer.”

            Again, because YOU say so? Please cite a source.

            “I’d appreciate if you moved away from the h1b argument for the sake of winning our discussion”

            You’re the one who brought it up.

            “…and instead address your claim that there is an incentive for employers to hire f1 students”

            I think I more than adequately did so. It’s not a matter of just my opinion. It’s part of the basis for the lawsuit brought against the DHS.

            I’m done. I wish you well.

          • Vaishnavi Ramesh

            Nice. You addressed nothing and didn’t provide source for your claim on employers having a preference/ incentive to employ f1 students either.

            Let me cite the requirements that employers have to follow so that you could use your common sense to understand all that they don’t have to do if they employ a US citizen and how that’s incentive enough for them to NOT hire f1 students.

            1) For an F1 student to utilize their STEM they need to be employed by an everified employer.

            https://www.e-verify.gov/faq/studentsuniversitiesinterns/am-i-required-to-participate-in-e-verify-in-order-to-hire-f-1
            If not, they can only work for the employer for 1 year of OPT before which they have to stop. How many employers do you know go through the painstaking process of hiring someone just to keep them for a year?

            2) H1B filing info- Expenses, Lottery process. About 80,000 people every year are granted a visa against upto 5 times the number of applications filed. I’m not as experienced as you are on this field, but I know that it’s not a layman’s job or within HR’s capabilities to have to understand these nuances and file these, and companies need lawyers to file these applications. My employer used one. Majority of employers use them too.

            https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker

            Maybe if you were looking at this with a practical thinking angle instead of with an intention to win the argument, while making no case for it, this would be a productive conversation. If not, well I’m wasting my time here. Hopefully you’ll cite your sources for your claim, or you’ll continue trying to sway people your way being misinformed or intentionally not addressing your claims while making them. Goodbye.

          • CitizenOfACorruptNation

            Again, with the condescension.

            Here’s a source from Wichita State University: https://www.wichita.edu/admissions/international/current_students/opt_facts_for_employers.php

            From the link: “The only cost to the employer hiring international students is the time and effort to interview and select the best candidate for the job. The student and institution handle all paperwork involved in securing post-completion Optional Practical Training authorization and most of the paperwork for the STEM OPT Extension. In fact, a company may save money by hiring international students because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.

            Goodbye.

          • Vaishnavi Ramesh

            7.5% incentive for an average 1000-2000$ social security taxes is $140$ benefit for the employer per employee. That is not an incentive. My apologies for being blunt about this and for you thinking I was condescending, I wasn’t, I was taken aback by how much I had to reiterate explanation regardless of how much case specific I went to try to make you understand, and your claim that just because I say so, it’s true. I never said it’s a fact just because I said so, you said you had been working on this too long and you know what you’re talking about, so my presumption was that you knew enough about the f1 process, so I didn’t cite sources for my argument, and you said you did regardless of you doing so just in your last comment, the argument in the article which I think is bogus, but I’m happy to agree to disagree. I never contested you about H1B and accepted that but pointed out that companies game them just as much as companies that use them correctly and benefit from them. I wish you well, and apologies once again for making you feel bad, but I think we all can learn from each other.

          • CitizenOfACorruptNation

            Sorry to be so blunt, but you don’t know what you’re talking about. It’s 7.65%, not 7.5%. Furthermore, that’s the percentage of the employees gross salary.

            In 2017 alone, Amazon employed 3,655 foreign workers on OPT[1]. Amazon’s average starting salary is approximately $108,000[2]. Social Security and medicare tax rates for employers is 7.65% combined (6.2% and 1.45%, respectively)[3].

            Do the math. On one worker alone, Amazon saved $8,262 by preferring an OPT worker instead of an American worker. On 3,655 OPT workers, Amazon saved $30,197,610 in one year by preferring OPT workers instead of American workers. Do you really think that’s “meager”?

            [1] https://www.ice.gov/doclib/sevis/pdf/data_Top200_EmployersPrePostCompletion_OPT_Students2017.pdf

            [2] https://news.efinancialcareers.com/us-en/3000793/comparing-salaries-and-bonuses-at-facebook-amazon-and-google

            [3] https://gusto.com/blog/payroll/fica-tax-social-security-medicare

  • Lance

    Sadly, Trump’s contentious issue is yet one more thing that makes being an international student away from home difficult, compounded by our complex culture and language problems. Welcoming and assimilation assistance must come from numerous sources, including the White House, to aid these young people embarking on life’s journey.
    Most struggle in their efforts and need guidance from schools’ international departments, immigration protection, host families, concerned neighbors and fellow students, and even informative books to extend a cultural helping hand.
    Something that might help anyone coming to the US is the award-winning worldwide book/ebook “What Foreigners Need To Know About America From A To Z: How to Understand Crazy American Culture, People, Government, Business, Language and More.”
    Used in foreign Fulbright student programs and endorsed worldwide by ambassadors, educators, and editors, it identifies how “foreigners” have become successful in the US, including students.
    It explains how to cope with a confusing new culture and friendship process, and daunting classroom differences. It explains how US businesses operate and how to get a job (which differs from most countries), a must for those who want to work with/for an American firm here or overseas.
    It also identifies the most common English grammar and speech problems foreigners have and tips for easily overcoming them, the number one stumbling block they say they have to succeeding here.
    Good luck to all wherever you study or wherever you come from, because that is the TRUE spirit of the American PEOPLE, not a few in government who shout the loudest! Supporters of int’l students must shout louder.