Indians looking to study in the US can cheer as optional practical training stays

In a major relief to foreign students, especially Indians, a US court has denied the demand to declare optional practical training (OPT), which allowed students to work in the US, as unlawful.

There are close to 2 lakh Indians studying in the US, according to a 2020 survey by Open Doors.

Lawsuit against OPT

The Washington Alliance of Technology Workers (WashTech) had filed a lawsuit against the Department of Homeland Security (DHS) in the US District Court of Columbia to declare OPT unlawful.

The OPT had existed for a long time. However, the DHS reformulated the programme twice -- in 2008 and 2016. DHS, in 2016, extended the OPT extension from 17 months to 24 months for STEM graduates. In 2008, it had extended the maximum duration of 12 months to 29 months for STEM graduates.

WashTech had challenged both the changes in the court. In 2014, it challenged the 2008 changes by the DHS, and it was dismissed. It 2017, it filed another lawsuit challenging the 2016 changes, and this was joined by trade organisations. That has been dismissed now.

The OPT programme allowed students to work in the US for a year and additional two years for Science, Technology, Engineering and Mathematics (STEM) graduates. WashTech alleged that these students are taking away jobs from Americans, and, hence, unlawful.

The DHS was joined by the National Association of Manufacturers, along with other trade organisations like the US Chamber of Commerce, against WashTech.

In an order dated November 30, Reggie B Walton, said that WashTech's demand to declare OPT unlawful is denied. However, the order read, “…this Order is not a final Order subject to appeal.”

A relief for Indians and US Universities

For many of these students, a significant majority of them in the STEM curriculum, OPT is an important criterion for choosing US universities.

Anand K (name changed), who is an H-1B visa holder, said that, for students, the opportunity to work in the US is important since it is a gateway to get an H-1B visa. Anand pursued his higher education in the US in early 2010s, and was able to get an H-1B visa in the same company where he was working under the OPT regime.

For US universities, too, without OPT, they would not be able attract foreign students. Joel Yanovich, Immigration Attorney, Murthy Law Firm in the US, said, “The STEM OPT programme is an important tool that helps US universities attract top students from across the globe.”

“The last thing this country should be doing is training the next generation of STEM workers, only to then kick them out of the US to go work for employers overseas,” he added.

Will it help attract more students to the US?

According to the US Department of State report, the Indian student visa enrollment in the US fell down by 64 percent in FY20, primarily owing to COVID-19. The 2020 Open Doors survey has showed that the number of students studying in the US had declined by 4 percent.

Recent regulations, such as H-1B wage hikes, made it difficult to recruit freshers. The Trump administration had also proposed to make the OPT regime tighter in its 2020 Spring Agenda. This does weigh heavily on the decision to pursue higher education in the US for Indians, considering the expensive tuition.

However, with Joe Biden set to take charge as the new President and with the new rules that made it tough to qualify for H-1B visas blocked by the US court, experts believe the numbers could increase.

Biden, in his election agenda, had promised to remove the cap for graduates of PhD programmes and STEM fields.  "...will support first reforming the temporary visa system for high-skill, specialty jobs to protect wages and workers, then expanding the number of visas offered...." the agenda read.

Currently the US issues 85,000 H-1B visas every year.

But these changes would take time to get implemented. Also at the back of COVID-19, some students and parents are likely to be on wait-and-watch mode to see how the job prospects pan out, pointed out experts.

What now?

The judgement is likely to be appealed. “The plaintiffs have already indicated that they will appeal the ruling,” said Yanovich of Murthy Law Firm.

In its 2020 Spring Agenda, the administration had proposed to increase the compliance and supervision to keep the OPT abuse by international students under check. However, the Trump administration is unlikely to come up with new regulations, pointed out immigration experts.

Kellen Powell, an immigration counsel, pointed out: “Only 50 more days until a new administration. So there isn’t enough time to issue the rules and get them on the books.”

Another pointed out that even if the administration pushes the regulation through, they are likely to be blocked by the courts since the administration will have to take shortcuts making them vulnerable for lawsuits.