OPT and CPT for F-1 visa students.
INTRODUCTION
This research work will be addressing the issue on how international students studying in the US under the OPT and CPT F-1 visa program are abusing these programs in order to work for gain in the US, in what is duped as Unauthorized Employment. In order to place everything into context, OPT stands for Optional Practical Training while CPT stands for Curricular Practical Training. The various International Students who study in the US are allowed to do either CPT or OPT under their F-1 student visas to gain work experience. Basically, the CPT and OPT are official work permits and/or authorizations, given by the US governments to International Students since International Students aren’t allowed to work off-campus. In the next two paragraphs, I will venture in giving a detailed explanation of both the CPT and the OPT programs.
What CPT and OPT entails
For CPT that is the Curricular Practical Training, it allows the international students with an F-1 student visa to work for gain and experience through employment training and paid internship which is related to one’s area of study. The DSO that is the Designated School Official usually authorizes CPT in the Student Exchange Visitor Program (SEVIS) and which is printed on the I-20 form which is a conclusive evidence to show that one is eligible for the CPT employment. Under the CPT program, the DSOs must authorize CPT either on a part time or full time basis, in accordance with the school policies. When school is in session, the student must maintain a full course of study even when CPT is authorized.
With CPT, an international student can work full time for 20 hours or more per week, and during part time, the international student can work for 20 hours or fewer per week and once the international student works full time for 12 months with CPT, he/she cannot be eligible for OPT.
For the OPT, it helps those under the program to gain work experience after graduation and it applies for both the bachelor’s degree and a master’s degree. For one to be authorized, one needs to mail a completed Application for Employment Authorization which is known as form I-765, to the USCIS, once the form is approved, the USCIS sends you and Employment Authorization Document (EAD) which is a prerequisite for one to start to work on the date specified by the EAD. That notwithstanding, as an F-1 student, one is eligible for OPT in two broad different ways, that is the Pre-completion OPT where one is eligible after completing one academic year at a Student and Exchange Visitor Program (SEVP) certified academic institution and a Post-Completion OPT, where one can apply after completing the studies.
Further, there is the 24-month (STEM) OPT Extension for those students who major in designated Science, Technology, Engineering and Math degrees approved by DHS, this type of OPT is a 24-month extension of OPT. Also, under OPT, there is the gap-gap OPT Extension for students whose prospective employers filed a qualifying H-1B cap subject petition.
The Differences between CPT and OPT
From the foregoing, I find it necessary for us to know the differences between OPT and CPT, if any, at all. In my research, I came across a myriad of differences between the two, and it is of absolute necessity to anybody, including the International students who are aspiring to come to US on F-1 visa program basis, to know the differences between the two. In the US, the sole reason of working with a top employer is an attractive idea and a reason why many international students always look forward to studying in the US, however, the transition to US can be a tedious work which is further made more challenging by the complex immigration regulations and the rules for international workers while applying for internship.
While it is a common ground on who can make an application for both the CPT and OPT, in that the application is made by international students living in the US, and who are on an F-1 Visa and who have enrolled for at least one full academic year, there are differences. The first one is that, under CPT, you need to have a job lined up before the DSO that is the Designated School Official, in order for the DSO to authorize and/or recommend you for practical training, conversely, under the OPT program, you do not need the DSO’s recommendation. Under the CPT, for eligibility, one needs to fill form I-20 which is provided by the DSO, whilst under the OPT program, one needs to fill the Employment Authorization Document (EAD) that is sent by the USCIS.
Further, under the CPT program, the DSO is the one who authorizes the CPT which is not the case under the OPT program where the government, under the USCIS will authorize the same. Under the CPT program, one can only participate under the program during the course of one’s study program whereas under the OPT program; one can participate before or after ones’ program end date. While CPT is employer specific and part of one’s course curriculum, OPT is not employer specific. Any international student under the CPT program is not eligible for STEM (Science, Technology, Engineering, and Math) extension which is directly opposite when one is under the OPT program where STEM degree graduates can apply for a 24-month OPT extension.
Interchangeability of CPT and OPT
This segment will seek to answer the question whether CPT and OPT are interchangeable, after addressing the differences between the two. It is my informed position that the two programs have a different requirements and purposes, and hence the two training programs are not interchangeable. The rationale for this is that, CPT is not a supplemental training experience, but rather an integral part of an established curriculum, meaning that it is a required part of the degree or program of study. On the other hand, OPT permits students to grow and solidify their learning with the real world experience, often, and as seen, after completion of a student’s study program, hence, the two cannot be interchangeable.
Also, another issue to address under this part is whether an international student can apply for CPT and OPT at the same time. The immigration experts are of the view that the international student can apply for both, however, it will be incumbent upon him/her that if he/she works for 12 months full-time CPT, he/she will not be able to apply for OPT, and part-time CPT will not affect his/her eligibility for OPT, even in cases where he/she works for more than 12 months.
ABUSE OF THESE PROGRAMS BY STUDENTS
With the foregoing, the CPT and OPT programs have been susceptible to abuse. Most international students have engaged themselves in actions that depict or show clearly that they are blatantly violating and abusing the terms of both the CPT and OPT. Under this subheading, I will proffer the various ways the students have abused both the CPT and OPT study programs.
CPT abuse
It is axiomatic that CPT was not designed to offer employment for students to make a living, but rather, it was intended to provide work experience for International Students studying in the U.S, hence the purpose of the CPT for F-1 visa holders is not actually to give a work permit to them to be able to support themselves in the process, but the purpose is to offer work experience to them. Further, it has come to the attention of the USCIS that the root of the problem is that some universities are offering the CPT from day one yet the regulations are clear that a CPT can only be given at the lapse of one academic year, they do this in order to lure more international student to their institutions.
The consequences of violating the terms of the CPT are grave, previously, the USCIS have moved in a manner likely to suggest that they are sparing the students, but lately, we have seen an increase in request for evidence (RFEs), notice of intent to deny (NOID) and also H-1B applications based on CPT abuses and a revisit of the previous cases of abuse of the CPT terms which is distressful to students who have used the CPT.
OPT abuse
OPT is also susceptible to abuse, still there are various international students who engage in actions which violate the OPT, for instance, instances where a particular employer is using the program to hire only foreign nationals or certain nationalities to the exclusion of others. OPT abuse can manifest itself in various broad ways.
The first one is where after the student successfully applies for an OTP, they scamper into illegal status and some even drift into the underground labor market as opposed to where a student should only concentrate in his/her area of study. The other way through which a student abuses the OPT is where an institution admits a large group of international students who after the payment of the tuition fees, and after the completion of the first year of study which is a requirement for one to be under the OPT program, the student disappears into the illegal alien population, they enroll in what is known as visa mills where they purport to be engaging in small and legitimate study program studying high-tech subjects in order to fit in the STEM prerequisite.
Further, there is the institutional distortion, this exists where in some institutions, they hold classes only on weekends and they only offer degrees only, and since they are learning institutions, the students enroll in the OPT program and engage on full time, Monday to Friday jobs as opposed to what is required of those international students under the OPT program.
Further, since the OPT enables the international students to work in the United States in positions related to their field of study for up to one year, with an additional 24 months if the students participates in STEM optional practical program, some students always opts to remain in the US illegally and in violation of their OPT program.
In addition to the above, engaging in unauthorized employment can be perilous to an international student. As an international student, the right to work is highly restricted. When an international student works without authorization in the US, it would seriously harm the ability of the student to live in, work in or eventually reenter the United States, once the employment violation exacerbates to unauthorized or illegal employment, the international student will have exhausted his options for reinstatement to OPT F-1 status.
Another issue and abuse arises where an international student is seeking for an extension of stay, which under the OPT is up to 24 months if one is undertaking a STEM related course, and a student submits fraudulent financial documents belonging to someone else, or distorted in order to conceal some information, or misrepresent facts which is a criminal offence and for an international if one is convicted of the offence, one can be deported. When an international student has made an application for the extension of time period under the OPT program, his/her DSO must at all material times determine whether the student has been maintaining proper student status before granting the extension, and once the DSO discovers any misrepresentation or fraud, may report the same to the SEVP by terminating the international student’s status in the Student and Exchange Visitor’s Information System (SEVIS).
The other way through which international students abuse their OPT F-1 visa status is through attempting marriage fraud. This takes place where, once an international student discovers that they are almost through with their studies and luckily, they had been granted extension of time under the OPT STEM status, they conspire with their mutual U.S. citizen friend to marry them. it is a common ground in the US that once anybody in general and an international student in particular engages or enters a marriage in bad faith in order to obtain a green card, that amounts to marriage fraud. Once the international student DSO discovers that the international student had engaged and/or entered into a marriage fraud, the DSO has a duty of reporting the international student’s actions to SEVP which can lead to the termination of the student visa.
COURT CASES
Guilford College, Guilford College International Club, The New School, Foothills-De Anza Community College District, Haverford College, The American Federation of Teachers, JIA YE, and SEN LI v Chad Wolf, US Department of Homeland Security, Ken Cuccinelli, and US Citizenship and Immigration Services
Statement of facts
The plaintiffs had challenged the USCIS issuance of the 2018 policy memorandum titled “Accrual of Unlawful Presence and F,J, and M Nonimmigrant” which had among its policy guidelines, had introduced the concept of unlawfully present which under the policy guidelines, was meant to reduce the number of visa overstays and improve how the USCIS implemented the unlawful presence ground of inadmissibility under the 1996 Immigration and Nationality Act (INA). According to the plaintiffs, this policy would cause unintentional errors which would result in life-altering consequences because unlawful presence time under the August 2018 policy began to accrue from the day after an F,J, or M visa holder engages in an unauthorized activity, and for the OPT or CPT F-1 visa holders program, where international students engages in unauthorized employment and minor violations like failing to update an address, or working a single extra hour in a week. The plaintiffs initiated the suit seeking an injunction of the court in order to order the USCIS halt the implementation of the August 2018 policy, and argued that it was substantively arbitrary and capricious.
Decision of the court
The court was of the position that, the USCIS as an agent of the United States government on matters immigration, had engaged in actions beyond the purview of the INA, and the court held that:
“The first is a broad-brush assertion that Congress has, in other sections of the INA, “statutorily affirmed” a general intent “that the Executive branch must carefully scrutinize F, J, and M nonimmigrants. But the agency cannot rewrite a statute just to serve a perceived statutory spirit.”
It was for that reason that the court concluded that the August 2018 policy impermissibly conflicted with the text of the INA, pursuant to which a nonimmigrant is not deemed to be unlawfully present until after the expiration of the period of stay authorized by the Attorney General and held that the August 2018 Policy by the USCIS was beyond and in excess of statutory jurisdiction, authority, limitations and short of statutory right. And ultimately, the court declared that the August 2018 memorandum entitled “Accrual of Unlawful Presence and F.J, and M Nonimmigrant’s as well as the corresponding memorandum with the same title issued on May 10, 2018 were invalid.
Following the court order as pointed to above, the USCIS extended the flexibilities to include applications received from October 1, 2020, through October 31, 2021, and it favors the applicants who timely filed form I-765 for OPT and STEM OPT and whose applications were later rejected.
WashTech (Washington Alliance of Technology Workers) v Department of Homeland Security (DHS)
Statement of Facts
The lawsuit had been brought in part by the Immigration Reform Law Institute, whereby the plaintiffs were arguing that the actions of Department of Homeland Security of promulgating an interim final rule in 2008 which extended, for eligible STEM OPT students, the duration of optional practical training, which allowed the non-immigrant foreign students on an F-1 student visa to engage in employment during and after completing a study. The interim final rule extended the period of OPT by 17 months and expanded the Gap-Gap relief for all F-1 students with pending H-1B petitions arguing that it was greatly oversubscribed with visa applications.
The plaintiffs alleged that the OPT program exceeds DHS’s statutory authority and conflicts with other statutory requirements, including labour certifications. Further, they argued that its members had been injured by DHS’s OPT program because that program increased the number of economic competitors and exposed Washtech members to unfair competition by allowing aliens to work under the rules in which they are inherently less expensive to employ.
The decision of the court
The court rejected Washtech’s claim that those who had graduated could not be F-1 students. And since in the petition, the plaintiffs had requested the court to interpret the word student, the court held that Congress acquiesced in DHS’s interpretation of the word student to encompass a person who has completed the academic degree program. The court also found that the DHS had a broad delegation of authority from Congress, which included the authority to establish terms and conditions under which F-1 students can be employed.
CONCLUSION
From the forgoing, it is now clear to any international student studying in the US either under the OPT or CPT program what these two entails and the various conditions for eligibility. Also, the various ways through which both the OPT and the CPT have been abused by students which have led to the unauthorized employment, and the various repercussions of violation of the terms of both the CPT and the OPT. further, I have ventured and looked at the various case laws and interrogated the jurisprudence emanating from the court. I now come to the conclusion that, though there are a myriads of temptations, tempting one to violate and abuse the terms of the F-1 visa program, one should be wary of the fact that the end results are abrasive.
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