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 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 with 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.
Before completing the program, the student must be an international student with the F-1 status at application.
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 participating 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 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 those 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 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 secure employment related to their field of study. It has also addressed the various sets and types of programs 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 U.S., 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.
Cases
Case one
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 two
Jie Fang v Dir. U.S. Immigration & Customs Enf’t
The background of the case provides that the F-1 visas given to international students by the United States government are meant to allow the students to study in the U.S. and apply for internships and job opportunities. Each school with international students under the F-1 Visa has an official assigned to manage the students’ affairs. The qualifications to apply eligibility under the CPT or the OPT are that the student must take a course offered in an accredited institution that is authorized to offer the course. The claimants, in this case, were students at the UNNJ, which was later closed, confusing the students who had obtained or were in the process of obtaining f-1 visas to work in the U.S. while studying at UNNJ. The U.S. government consequently terminated the students’ visas, and they filed a claim stating that the government’s move to terminate their Visas. Additionally, the court believed that the students had indeed been the victims who suffered a loss after the closure of UNNJ.
The court held that the students affected by the closure of the UNNJ needed not to wait until removal proceedings were instituted to terminate their visas. They have contested the termination in court as soon as the UNNJ was closed, which also primarily disadvantaged other students who were set to join.
Case Three
Gani v State
The claimant, in this case, commenced his suit, stating that he came to the United States as a student who would begin his studies in the SUNY Maritime College. The claimant argues that his application to become a student in the U.S. was rejected by USCIS, the body in charge of authorizing and approving the requests of international students to study and work in the U.S. on erroneous grounds committed by the school’s officials to his detriment. Gani was a national of Turkey. While he was in the U.S., he visited SUNY Maritime College and interacted with one of the officials helping international students with their affairs. The official advised Gani that he had two options: to go to Turkey and apply for the F-1 Visa from the U.S. Consulate or remain in the U.S. and file for a 1-539. The claimant’s qualification to get the F-1 Visa would enable him to apply to the Curricular Practical Training program or the Optional Practical Training Program. The USCIS did not receive any letter from Gani regarding his F-1 Visa application, and he was considered an illegal visitor. The issue for consideration in the case was whether SUNY Maritime acting in government capacity led Gani to think that he could continue with his classes pending the approval of his F-1 Visa.
The court held that the claimant had failed to establish a proximate cause of how the erroneous acts of the defendant caused him to miss the employment opportunity he was being offered to work in the U.S. as a student. The court added that Gani could also not have qualified for F-1 because he had already begun his studies at SUNY Maritime College at the time of application.
Case four
Saraswat v Bus. Integra Inc
The plaintiff, in this case, attended Vaughn College of Aeronautics, where he graduated after attaining a B.S. in Aviation Maintenance and an associates’ degree in aeronautical engineering. After completing his B.S., the plaintiff pursued a Master’s degree in mechanical engineering. The plaintiff and his family lived in New Delhi before he moved to the U.S. Subsequently, the plaintiff acquired an Optional Practical Training Visa which he would use to secure employment. However, the plaintiff only worked for a month with his employers and quit citing that the work was not something he was interested in doing. The defendant later employed him, but because he did not have an OPT or CPT program visa, the employer employed him on an H-1B work visa. According to the claimant, he experienced forced labor from the defendant.
In determining the case, the court held that a student might apply for an OPT when engaged in temporary employment for the OPT program. The program must be directly related to the student’s field. The claimant, in this case, failed to provide sufficient evidence to demonstrate that indeed he had been forced to work.
Bibliography
List of Cases
Spencer Enterprises, Inc v U.S. (2003)345 F.3d 683.
Saraswat v Bus. Integra, Inc (2019) 15-CV-4680.
Gani v State (2014) 44 Misc. 3d 740.
Articles
Kelly Mae Ross and Josh Moody, What to Know About Optional Practical Training, last modified November 27, 2019, Last accessed on November 22, 2021.
Optional Practical Training (OPT) for F-1 Students last modified November 21, 2021, Last accessed on November 22, 2021.
Sevis Help Hub, Curricular Practical Training (CPT) last modified October 19, 2021, Last accessed on November 22, 2021.
Shah Peerally Law Group, Consequences of Abusing the Curriculum Practical Training by Students on the student visa, Last accessed on November 22, 2021.
< 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, Last accessed on November 22, 2021.
< https://shorelight.com/student-stories/how-do-international-students-apply-for-cpt-and-opt-status/>.
Priyanka Sangani, US, set up a new Unit to probe possible misuse of student work permits, last updated January 18, 2021, Last accessed on November 22, 2021.
Websites
https://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2012/Feb062012_04D2101.pdf. February 6, 2021. , Last accessed on November 22, 2021.
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