The US Government Accountability Office is Looking More Closely at F1 Students on OPT

Optional Practical Training (OPT) is a period when foreign students who have completed their degrees are permitted to work, in order to get practical training in their field of studies. The student must show that the work is related to the field of study.

Many foreign students apply for OPT and use this time of OPT employment to also apply for an H1B visa. Unfortunately, not many H1B visas are available each year.

The U.S. Government Accountability Office (GAO) has studied the OPT program and has decided that there is a need for additional risk assessment and oversight in connection with the OPT program. The GAO report looks at whether there are sufficient ways to ensure that foreign students in the United States are following the rules of the OPT program.

Ever since the events of September 11, 2001, there has been a heavy security focus on foreign students. That is why the F-1 student programs are under the jurisdiction of Immigration and Customs Enforcement (ICE), and ICE's program called the Student and Exchange Visitor Program (SEVP). The US government is concerned about foreign students who might use OPT in order to remain in the US and plan activities that are against national security.

Some senior officials feel that the OPT program is low risk in terms of national security. However, some ICE officials are concerned about the potential for fraud and non-compliance within the OPT program.

The past few years have brought scrutiny on certain schools that participate heavily in the F-1 student program. Further, USCIS is examining OPT compliance issues far more closely than what was done in the past.

Why are OPT program students interested in applying for an H1B visa after their OPT has expired? With an H1B, the student can work in any field, not just in a field related to his major field. The H1B is good for three years, extendable for another three years. And there is the possibility of the student qualifying for a work-related Green Card.

USCIS accepts H1B applications during the first week of April each year, for employment to start on 01 October of the same year. There are 40,000 visas available for most applicants but CIS receives far more than that number. Therefore, CIS conducts a computerized lottery to determine which applications that will be accepted.

The preparation for the H1B application must begin at least nine to twelve months before the April application period. It takes that much time to obtain a Prevailing Wage Determination and submit it to the Department of Labor.

There are two types of H-1B's. Twenty thousand visas are reserved for jobs at certain research institutions that have been approved by the US government. These are called “cap exempt” H1B’s and usually require a master’s degree. The remainder of the 65,000 H1B visas are called “capped” and are for employment with profit-making businesses.

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Q.1. Why does CIS require a Prevailing Wage Determination for H1B applicants?
A.1. CIS wants to make sure that the H1B employer will not try to hire a foreign worker for less than he would need to pay an American worker. The wage determination is the government’s estimate of the usual salary for each type of job in each location in the US. If the wage determination says the job usually pays $80,000 per year, then the employer must pay at least that amount.

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Q.2. After someone obtains an H1B visa, can he change jobs if he doesn’t like the employment conditions?
A.2. It is possible to change employers while in the H1B classification, but it requires a new application to CIS.

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Q.3. CIS offers premium processing of H1B applications for a fee of $1,225. Does this fee guarantee that the application will be chosen in the H1B lottery in April?
A.3. The premium processing fee does not guarantee that CIS will accept the petition. It only guarantees that if the petition is among the 40,000 chosen by lottery, then CIS will complete processing of the petition within 15 working days.