Immigration and Customs Enforcement’s new crackdown on fraud in the Optional Practical Training program is a welcome development. But even if DHS succeeds in rooting out fraud and abuse, it still will not solve the program’s far more fundamental problems.
OPT allows F-1 visa holders to remain and work in the United States after graduation. Generally, participants can receive 12 months of work authorization, while graduates in certain STEM fields may stay and work for up to three years.
What began as a narrow form of practical training tied to education quickly evolved into a large-scale guest worker program operating outside the framework Congress created for employment-based immigration. The scale of OPT relative to other guestworker programs is shocking. According to DHS data, more than 505,000 foreign nationals participated in OPT in fiscal 2024. By comparison, the government approved about 141,000 initial H-1B petitions, issued roughly 72,000 L-1 visas, and granted about 140,000 H-2B visas that year. While annual approval numbers are not equivalent to the total present population, it is clear nonetheless that OPT rivals or exceeds several congressionally authorized visa programs.
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Unlike those programs, however, OPT was never clearly authorized by statute. It also lacks many of the safeguards Congress imposed on other employment visa categories. Under the H-1B program, for example, employers must attest that they will pay foreign workers at least the prevailing or actual wage for that occupation and that hiring them will not adversely affect similarly employed American workers. Congress also imposed an annual numerical cap. OPT contains none of these protections.
Employers hiring many OPT participants are also generally exempt from paying Social Security and Medicare payroll taxes, reducing labor costs by almost 8% per worker. As a result, employers are incentivized by federal regulations to use OPT as a cheaper alternative to hiring American graduates. At a time when many recent American graduates are struggling to enter the labor market, DHS should not be subsidizing competition against them through regulatory action.
The legal justification for OPT is also shaky. Congress created the F-1 visa category to allow foreign nationals to come to the U.S. “to pursue a full course of study,” and never explicitly authorized employment for these nonimmigrants. DHS has long argued, however, that it possesses inherent discretionary authority to authorize employment to F-1 visa holders, and in 2022, the D.C. Circuit upheld the OPT program in Washington Alliance of Technology Workers v. DHS.
But the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo fundamentally changed the legal landscape and has curtailed judicial deference to agency interpretations of statutes. Courts must now be more skeptical of agencies claiming broad regulatory powers absent clear congressional authorization. OPT may therefore face renewed legal vulnerability.
One of the primary problems with post-graduate OPT is unavoidable: once a foreign student graduates, they are no longer a student “pursuing a full course of study,” and are thus violating the requirements of their immigration status. Despite this conflict, DHS continues to authorize them to remain and work for years after graduation through regulation alone.
Federal immigration law already contains carefully constructed pathways for employment-based immigration, including the H-1B visa and various permanent employment categories. Congress created those systems with explicit rules, caps, and labor protections. OPT, however, effectively bypasses all of them.
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Supporters of OPT often argue that eliminating the program would drive talented graduates out of the U.S. But employers seeking to hire foreign graduates have lawful avenues available through congressionally authorized visa programs. If businesses genuinely need these workers for long-term employment, they should use the programs Congress enacted rather than relying on a regulatory workaround. If these existing programs are truly not enough, businesses should raise wages to reflect demand and encourage more students to enter these fields.
Reducing fraud is important. But the larger issue is not whether OPT is being properly policed. It is whether an immigration program of this economic and political significance should exist without explicit authorization from Congress.
Elizabeth Jacobs is the director of Regulatory Affairs and Policy at the Center for Immigration Studies.