Introduction
Optical Practical Training
Optical Practical Training (Opt) is an opportunity presented to International students with an F-1 visa to study in the U.S., where they get to work at jobs relating to their area of specialization. Jim Hicks, a division chief dealing with international students, opined that OPT is an opportunity for international students to be productive in a realistic environment that is also beneficial to their academics. OPT is temporary employment that lasts for a maximum of 12 months. OPT is available to two groups of eligible students for 12 months during the prescribed period. The first group is the pre-completion students who get temporary employment before completing school. The other group is the post-completion group eligible for temporary work in their academic areas for 12 months after completing their studies. Both a bachelor’s degree student and a master’s degree student can apply for OPT.
The international student that wishes to enroll for the temporary opportunity to work as a student in the U.S. under the OPT program is required to fill Form 1-765 ‘Application for Employment Authorization’ through the mail to the forum in charge known as U.S. Citizenship and Immigration Services (USCIS). The U. S law categorically provides that the international student must not begin to work in the country until they have been issued the Employment Authorization Document (EAD). Following the issuance of the EAD, the student can start to work.
Qualifications for the eligibility of international students into the OPT
As earlier introduced, this program presents an opportunity for international students to gain academic prowess and practical prowess in their academic-related fields. The prescribed qualifications for eligibility include;
First, the student must not be taking English as a second language.
Secondly, the student’s practical employment area chosen must conform and directly relate to their academic areas of study.
Third, the student must have been a full-time student for one academic year in an academic institution certified by the SEVP. These institutions include colleges, universities, conservatories, and seminaries.
Fourth, when making an application for OPT, the student must not be authorized 12 months or full time to take part in the Curriculum Practical Training (CPT) program.
Fifth, at the time of the application, the respective student must not have used all the available practical options for their current academic area/ field.
Types of Optional Practical Training programs
There are different types of OPT programs created to accommodate the needs and demands of the various groups of international students that might be eligible for the program. These include;
- Pre-completion OPT program
This program is available to students after they have been successfully issued with a lawful enrolment on a full time or for one full academic year in an institution that has been certified by the Student Exchange Visitor Programme. Essentially this means that the college, university, seminary, and conservatory that the student attends must be dully certified. Under this program, the student can work for 20 hours or less when school is in session and full time when school is not in session.
- Post-completion OPT programme
This program is available for international students who have completed their studies. The students under this program work 20 hours or less per week or full time, depending on case to case basis. The OPT program is available for students for a maximum period of 12 months. Consequently, for a student who participated in the pre-completion program, the time spent in pre-completion and post-completion must ultimately amount to 12 months.
Imperatively, students pursuing the science, technology, engineering, and math-related fields are eligible to apply for a 24-months extension after the prescribed 12 months period in the post-completion OPT program. To pass the eligibility test, the student must prove that they have received a STEM degree from one of the STEM Designated Degree lists, must demonstrate that they are employed. Their respective employer is an enrolled user of the E-Verify. The student must demonstrate that they have received an initial employment grant following the post-completion of the OPT program specifically based on the student’s STEM degree. Additionally, for a student to qualify for the 24 months post-completion of OPT program extension, they must demonstrate that they and their employer have duly signed Form I-983 that prescribes for Training Plan for STEM OPT Students.
Curricular Practical Training (CPT)
The curricular practical training program allows international students who have F-1 student visas to get work experience and paid internships in the U.S. This program seeks to provide employment opportunities for international students studying in the U.S. The CPT program is governed and must comply with the U.S. Federal regulations and the policies provided by schools regarding internships and experiential learning. CPT programs support students and provide them opportunities to work as early as their first year. The students can work for 20hours a week or more, 20 hours or less, or part-time. The students are paid in dollars for working and gaining experience in areas of their interest. A student under this program is issued with an authorized CPT in the respective Student and Exchange Visit Programme, which will prove the student’s employment.
Qualifications for eligibility of a CPT program
The F-1 student visa holders are not eligible if they are enrolled in only an English school.
The student must be legally enrolled on a full academic year basis for eligibility. This requirement does not extend to students in programs that demand their direct participation in an internship or any other employment provided.
At the time of application and before completing the program, the student must be an international student with the F-1 status.
Under this CPT program, if a student violates the status or happens to have a gap in their study will automatically have their time recalculated.
Types of Curricular Optional Training programs
- On-Campus employment
This refers to an opportunity according to an international student to work while they are still students. This means that whenever the students are not at school, they work in their areas of interest for a specified period.
- Off-Campus Employment
This refers to an opportunity granted in internships or employment to an international student who is off-campus. Under this program, the students can work for a minimum of 40 hours a week.
Differences between Optional Practical Training and Curricular Practical Training
From the discussion about the two types of optional training programs, it is critical to draw some distinctions between the two categories.
Firstly, the eligibility to qualify for the CPT dictates that the student completes before they graduate from their program. Regarding the OPT, the eligibility qualifications express that the student can complete the OPT before or after graduation from their respective programs.
Secondly, a student applying to qualify for the CPT must demonstrate that they have a job lined out for them, which they will undertake after the DSO authorizes their application and recommends them to participate in the respective training. However, for the OPT, the student does not need to prove that they have a job for the DSO to recommend practical training for them.
Thirdly, the student must fill for 1-20, which the DSO provides regarding the CPT. In contrast, with OPT, the student must fill an Employment Authorization that is issued to them by the U.S. Citizenship and Immigration Services (USCIS).
Fourthly, the CPT is employer-specific, and it forms an integral part of the student’s training and curriculum. The OPT program is not employer-specific, and at the time of application and authorization, the student does not necessarily have to specify their employer at the time.
Fifth, the CPT program does not provide an extension to the time provided. If the timespan expires, then the program cannot be extended. For OPT, the period can be extended for another 24 months provided that the student is enrolled in the science, technology, engineering, and maths degrees.
Sixth, regarding CPT, the student can only participate during the subsistence of their curriculum period. For OPT, the student can either participate in the program before or after the program’s end date.
Seventh, the DSO is in charge of authorizing a student’s CPT while in an OPT program; the U.S. Citizenship and Immigration Services (USCIS) authorizes the OPT following the DSO’s recommendation.
How Students are abusing the practical programs
The Curricular Practical Training program offered by the United States government is not meant to provide work visas for international students. Instead, they provide a means upon which students can support themselves during their studies. Consequently, strict rules have been set to allow international students to work in the United States without obtaining further benefits other than the ones they are already entitled to through the CPT. Therefore, the CPT can prevent students under the CPT from benefiting from the OPT and the H1B visa programs. Additionally, these programs are supervised by the Student and Exchange Visitor Program, and these training programs are not interchangeable. The intention to use the two programs interchangeably defeats the intended purposes and amounts to an abuse of the practical programs.
International students under the practical training programs are not offered paid internships and employment opportunities to make a living; instead, they are supposed and required to improve their expertise in the related areas. Therefore, where students use the CPT and OPT opportunities accorded to them by the government, they violate the intent and purposes of the practical training programs.
Holders of the H4 visas also abuse the CPT programs. These visa holders change their visas from H4 to CPT to be allowed to work in the United States. The spouses of the H4 visa holders are not allowed to work, which induces them to take the student internship and employment route, which, as declared by the government, has adverse effects on them should they be caught.
Some employers perform unlawful practices whereby they only hire international students and foreign nationals at the expense of other qualified citizens.
How to prevent the abuse
As illustrated above, the practical programs provided by the government to international students studying the United States are at times abused or prone to abuse by the students, therefore, defeating the programs’ intents and purposes. Following the increased abuse rates, the United States Immigration and Customs Enforcement announced that it would set up a specialized unit to look into the potential abuse of the OPT programs accorded to international students. This Unit is tasked to check for students who used their OPT opportunities to turn their F-1 Visa into an H-1B non-immigrant visa 12 months after graduation.
The Unit established will also look into employers’ who only employ foreign nationals at the expense of others.
Many students have suffered where the government is seen to re-visit their cases concerning their CPT arrangements. Therefore to avoid and prevent the abuse of the intended intents and purposes of the practical programs, international students are urged to communicate with an attorney before they secure the CPT. Should there be any diversion from the intended purposes, the student will suffer more harm than good.
Summary and conclusions
This work has primarily focused on the Optional Practical Training programs and the Curricular Training Programs that offer international students opportunities to work in the U.S. under internship programs or to secure employment related to their field of study. It has also addressed the various sets and types of programs under each program and what each program addresses and represents. It has also addressed how despite being set aside to help students, some are abusing the programs, thus impeding the realization of the set objectives and goals of the programs.
This paper concludes thus; these programs are beneficial to the students because they allow them to get the knowledge in class and focus on the practical aspects of the various courses performed by the students. The Unit set aside by the United States Immigration and Customs Enforcement should probe and investigate the cases abusing these programs to uphold the positive role the programs play in molding the students both in school and practice.
Additionally, to understand the issues revolving around immigrants and the employment opportunities and qualifications for the employment opportunities in the US, this paper also discusses various cases to this effect. These cases establish who bears the burden of proving the eligibility of a beneficiary into the United States. This is owed to the fact that allowing an alien into the United States is not mandatory. Instead, it is a favor extended to the beneficiaries who qualify for the opportunities provided by the government.
Cases
Case one
Spencer Enterprises, Inc v the U.S
The appellants in the case challenged the District’s Court denial of an immigrant investor visa. Chang and Spencer had earlier on worked on a business plan which they submitted together. After that, the Immigration and Naturalization Service stated that the petition lacked credibility. Beezer J held that the decision to grant a visa to an immigrant. This position is advanced by the fact that an investor’s visa is an employment-based preference visa. The court denied the application and affirmed the District’s Court decision that the admission and authorization of an alien to work in the US is not a right but a privilege accorded to the parties.
Unprecedented cases
Case two
Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
In this case, the director denied the application for a non-immigrant visa petition. The matter was later forwarded to the Administrative Appeals Office, appealing the denial. The petitioner applied to employ a beneficiary in a Medical and Health Services Manager position. To achieve this aim of employing the beneficiary, the petitioner made an application to change the beneficiary’s status to classify her as a non-immigrant worker. They relied on the rules that the petitioner seeking the status change must demonstrate that they will employ the beneficiary in their specialty occupation. On appeal to the AAO, the petitioner argued that the decision made by the director to deny the application was erroneous. According to the director, one of the grounds for denying the application was based on the fact that the evidence provided by the petitioner failed to illustrate the position offered to the alien or the specific area of occupation prescribed to accommodate the beneficiary.
The AAO argued that the burden of proving the beneficiary’s eligibility solely lies with the petitioner as they are required to demonstrate that they will employ the beneficiary. It further added that when determining whether a job qualifies as a specialty occupation, the USCIS must assess the preferred position for the beneficiary, the nature of operations carried out by the business entity, the ultimate employment of the beneficiary, and whether the beneficiary or alien sufficiently qualifies for the said position. The AAO affirmed the director’s decision.
Case three
Petition for Nonimmigration Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.c. § 1l01(a)(15)(H)(i)(b)
The case at hand involves the determination of two issues. The first issue determines the eligibility of the petitioners’ qualification for the visa requested in the application. The second issue focused on the eligibility of the respective beneficiary to change status to the non-immigrant classification. The case categorically demonstrated that the mandate to change the application status mainly rests with the director, and some questions relating to such changes are remanded to the director. The general rules relating to the employment of non-immigrants require that a non-immigrant who has been authorized to work may only engage in the employment as directed, required, or authorized. In this case, the director denied the beneficiary’s application to optional practical training. Upon review of the issue, the petitioner was authorized a full-time Curricular Practical Training. This essentially means that the beneficiary would get an opportunity to work as an intern or in their area of study for 20 or more hours a week. The court later reviewed this authorization, and on appeal, the court held that the burden of proving the eligibility for benefit solely and ultimately lies with the beneficiary. In this case, the beneficiary failed to prove his eligibility, and his request was denied.
Case four
Immigrant Petition for Alien Worker as a Skilled Worker or Professional under Section 203(b)(3) of the Immigration and Nationality Act, 8 USC § 1153(b)(3)
The petitioner, in this case, is a distributor of imported rugs. The distributor seeks to employ a beneficiary in the US as a Quality Control Manager in their distribution business. The director denied the application, and the petitioner appealed to the AAO. The petitioner sought clarification on several issues, including the classification of a beneficiary as a professional or skilled worker. Citing the Act, the petitioner argued that beneficiaries could also be granted the status of qualified immigrants if they hold baccalaureate degrees. The AAO dismissed the petition because it failed to demonstrate how it would continuously pay the beneficiary the proffered wage for the services rendered.
Regarding the payment of proffered wage, the Act provides that any petition filed by the petitioner on employment of a beneficiary must be accompanied by evidence proving the ability of the petitioner to advance the wages or payment to the beneficiary. Additionally, the petitioner must also demonstrate to the director or the AAO upon appeal that the offered job opportunity to the beneficiary is realistic. To ascertain the veracity and the realistic nature of the job presented by the petitioner, the petitioner must demonstrate that they have sufficient resources to make payment to the beneficiary. Additionally, to ascertain the ability of the petitioner to pay the beneficiary, the petitioner will be required to provide evidence that they indeed made payment to the beneficiary after working for a given period.
On the other hand, the beneficiary’s qualification for the specific position offered is also assessed. In this case, the director stated that one of the reasons for the denial of the petitioner’s application was that the petitioner failed to prove that the beneficiary indeed possessed the necessary skills and qualifications for the job offered as a Quality Control Manager. The petitioner must prove that the beneficiary passed through the necessary education, training, and experience to fulfill this burden.
References
Articles
Kelly Mae Ross and Josh Moody, What to Know About Optional Practical Training, last modified November 27, 2019, https://www.usnews.com/education/best-colleges/articles/2018-07-02/what-to-know-about-optional-practical-training-work-authorization.
Optional Practical Training (OPT) for F-1 Students last modified November 21, 2021, https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/optional-practical-training-opt-for-f-1-students.
Sevis Help Hub, Curricular Practical Training (CPT) last modified October 19, 2021, https://studyinthestates.dhs.gov/sevis-help-hub/student-records/fm-student-employment/f-1-curricular-practical-training-cpt.
Shah Peerally Law Group, Consequences of Abusing the Curriculum Practical Training by Students on the student visa < https://www.peerallylaw.com/abusing-the-cpt-the-curriculum-practical-training-for-the-student-visa/>.
Shorelight Team, CPT vs. OPT: What Is the Difference and How to Apply Last modified April 15, 2021, < https://shorelight.com/student-stories/how-do-international-students-apply-for-cpt-and-opt-status/>.
Priyanka Sangani, US to set up new Unit to probe possible misuse of student work permits, last updated January 18, 2021, < https://economictimes.indiatimes.com/nri/migrate/us-to-set-up-new-unit-to-probe-possible-misuse-of-student-work-permits/articleshow/80328220.cms>.
Spencer Enterprises, Inc v US (2003)345 F.3d 683.
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