June 7, 2017
Optional Practical Training (OPT) workers are becoming an indispensable part of the American workforce. Small and mid-sized companies are the largest beneficiaries, as just 4 percent of all OPTs work at the 10 largest tech companies in the Fortune 500.
So what are OPT workers? What are the challenges and benefits of this visa category?
OPT is a program that allows foreign students who have recently graduated from U.S. universities to work in the country on a temporary basis. According to a recent study by the Pew Research Center, highly skilled foreign workers are finding jobs under OPT more than ever. The number of graduates working on OPT grew from 28,497 in 2008 to 136,617 in 2014. Nearly half were graduates with STEM – science, technology, engineering, or math – degrees.
OPT is not a permanent solution for highly skilled workers. OPT for non-STEM degrees is typically granted for a maximum of 12 months; OPT for STEM degrees is granted for up to 36 months. Employers who want to retain an OPT worker thereafter need a plan to transition the worker from his or her student visa and OPT work authorization to a more permanent solution.
Typically, the best (and often only) pathway toward a more permanent solution is gaining an H-1B visa. These are limited in number annually by Congress, and therefore in recent years there has been a lottery system in place for H-1B petitions. The U.S. Citizenship and Immigration Services accepts petitions for each fiscal year on April 1; this year, it received about 199,000 petitions before the filing window closed for the 65,000 general-category limit and the 20,000 limit for holders of advanced degrees.
Given the growth of the OPT workforce, it is important for human resources professionals to recognize that an increasing number of job hunters will be seeking employment under the program.
The following is a simple checklist of items to discuss with an employment immigration attorney when onboarding OPT workers:
- Completing the Form I-9, and when to update/re-verify
- Limitations on international travel, if any
- Working with the student on a training plan
- Technology control plans, if needed
- Workable job descriptions for H-1B visa purposes and beyond
- Planning for H-1B petitions (when to get started, and how many lottery chances are available)
- What happens if the H-1B lottery isn’t successful (what backup plans to consider)
Many of our clients have found OPT workers to be among their most valuable and vibrant workers. A strong partnership with immigration counsel and a proactive hiring plan is key to onboarding and retaining these workers to maximum benefit.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.