Documents released by the White House in recent weeks suggest that the Trump administration is planning significant restrictions to the F-1 STEM OPT program in 2018.

While details have yet to be released, the Department of Homeland Security’s regulatory agenda and a national security strategy released by the White House this week shed light on the types of changes that are under consideration:

  • The national security strategy states that the administration “will consider restrictions on foreign STEM students from designated countries to ensure that intellectual property is not transferred to our competitors, while acknowledging the importance of recruiting the most advanced technical workforce to the United States.”
  • The DHS regulatory agenda indicates that Immigration and Customs Enforcement will issue a proposed rule that comprehensively reforms the OPT program for foreign students. The rule will aim to reduce fraud and abuse and improve the protection of U.S. workers who may be negatively impacted by employment of foreign students.

Background: The Optional Practical Training (OPT) program allows eligible F-1 students to apply for temporary employment authorization for a 12-month period. Students with degrees in science, technology, engineering or mathematics may apply for a 24-month “STEM OPT extension.” The Obama administration expanded the STEM OPT extension from 17 months to 24 months.

To be eligible for the STEM OPT extension, a student must have already been granted a 12-month OPT and hold a bachelor’s degree or higher in a STEM field from an accredited university verified by the Student and Exchange Visitor Program. Employers must meet all regulatory requirements, including enrollment in E-Verify. In fiscal year 2017, more than 33,000 students were granted employment authorization under the STEM OPT program.

Opponents of high-skilled foreign workers have repeatedly challenged the regulation in court. Washington Alliance of Technology Workers (WashTech) filed multiple lawsuits against DHS challenging the regulations, but the Obama administration successfully defended the regulation. The litigation remains ongoing in the U.S. Court of Appeals for the D.C. Circuit.

BAL Analysis: OPT and the STEM extension employment authorization both remain available until any changes are implemented. It is notable that both the national security strategy and the DHS regulatory agenda contemplate reforming and restricting OPT, as opposed to terminating the program outright. To achieve the goals outlined in the “Buy American, Hire American” Executive Order, Immigration and Customs Enforcement could seek to tighten OPT rules by imposing new wage restrictions or making other changes to better protect U.S. workers. The administration has not yet indicated how it would make the changes proposed by the national security strategy. The reforms to the OPT program proposed in the DHS regulatory agenda would be accomplished through proposed regulations, which means companies will have an opportunity to comment on the changes before they become effective.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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