Expect Stricter Scrutiny of Foreign Student Enrollment and Work Authorization Programs in 2014

In light of both a recent Government Accountability Office report on the Department of Homeland Security’s (DHS) Optional Practical Training (OPT) program as well as the newly-launched Student and Exchange Visitor Program (SEVP) Field Representative Unit (FRU), institutions of higher education and the foreign students they enroll face increased scrutiny and government oversight.

GAO Report Urges DHS to Assess Risks and Strengthen Oversight of Foreign Students with Work Authorization

Last year, we reported that DHS was taking steps to tighten its screening of international students by ordering border agents to verify the visa validity of F-1 and M-1 foreign students entering the United States, a directive issued in the wake of the Boston Marathon bombing. According to a February investigative report by the Government Accountability Office (GAO), Congress’ investigative arm, the increase in domestic terrorist attacks has drawn attention to the government’s monitoring of foreign students. As a result, beginning September 2014, institutions of higher learning that recommend OPT for foreign students should anticipate increased scrutiny of foreign student work authorization programs.

Heeding “concerns that employers were targeting foreign students with OPT status and learning that there was an atypical upward trend in participation,” Senator Chuck Grassley (R-IA) requested a review of the management of the OPT program by the GAO. The OPT program allows a foreign student, currently on an F-1 visa, to obtain temporary employment that is directly related to his or her major area of study during and after completing an academic program in the United States. With about 100,000 of the approximately one million foreign students in the United States approved to participate in OPT, the GAO report highlights the failure by DHS’ U.S. Immigration and Customs Enforcement (ICE) division to adequately assess the risks of the OPT program.

While “ICE has taken initial actions to identify risks” across Student and Exchange Visitor Program (SEVP)-certified schools, the agency “has not analyzed available information to identify and assess potential risks specific to OPT posed by schools and foreign students.” The report finds that ICE’s SEVP officials consider OPT to be a “low-risk employment benefit” for foreign students partly because they are under the impression that foreign students approved under the program have little incentive to jeopardize their legal status in the United States. In light of these findings, GAO urges the federal government to strengthen its oversight of work authorization programs, including collecting and monitoring complete information on foreign students approved for OPT to ensure they are maintaining legal status.

Some of the deficiencies highlighted in the report include:

• Foreign students, sometimes aided by designated school officials (DSOs), fail to comply with OPT requirements, including working in jobs that are unrelated to their major areas of study.

• ICE does not have complete information as to which OPT-approved foreign students are actively working and whether employment is study-related. ICE regulations do not specifically require the collection of information on foreign students’ places and dates of employment. As a result, the agency does not consistently collect information needed to oversee OPT requirements related to the type and timing of foreign students’ employment and to ensure that foreign students are working in jobs related to their studies, are not exceeding regulatory limits on unemployment, and are maintaining their legal status in the United States. “Without information on employers or employment start and end dates, ICE’s ability to oversee requirements for OPT is limited.”

• There is a lack of coordination within ICE’s subdivisions and inadequate monitoring mechanisms in place by ICE to ensure program compliance. “Proper monitoring is important to ensure that . . . foreign students who complete an academic program and any authorized OPT leave the United States as required or take steps to legally extend their stay in the country to avoid becoming overstays.”

In a March 5^th letter to the Secretary of Homeland Security, Senator Grassley highlighted the popularity of the OPT program, noting that the number of students approved annually for OPT has more than quadrupled in the last six years. In the letter, Grassley urged the Secretary to place a moratorium on the program until the “serious program integrity issues” are fixed, stating that the report “not only calls into question the department’s oversight of the program, but also whether such lack of oversight is a serious national security risk.”

To ensure compliance with OPT requirements by DSOs and students and to enhance efforts to identify and assess potential risks in the program, the GAO report recommends that ICE take the following five actions:

1. require that foreign students working pursuant to OPT report to a DSO so that their employer information, including the employer’s name and    address, can be recorded;

2. develop and distribute guidance to DSOs on how to determine whether a foreign student’s job is related to the area of study and require DSOs to provide information demonstrating the steps taken to establish the correlation between the job and the area of study;

3. require the reporting and recording of foreign students’ initial date of employment and any periods of unemployment;

4. develop and provide guidance to DSOs and the U.S. Citizenship and Immigration Services on the amount of time that constitutes “one full academic year” for the purposes of recommending and authorizing OPT; and

5. develop and implement a mechanism to monitor available information in the Student and Exchange Visitor Information System (SEVIS) to determine if foreign students are accruing more OPT than allowable under ICE regulations.

DHS concurred with all recommendations in the report, noting that it will work with ICE’s investigative unit to develop factors to identify risks for schools and students associated with the OPT program, and describing steps that are either under way or planned in order to address each of the GAO’s recommendations. DSOs and students should anticipate increased scrutiny of foreign student employment authorization programs and be prepared to comply as early as this year, since DHS indicated that the estimated completion dates for recommendations 2, 4, and 5 is September 30, 2014. Recommendations 1 and 3 will be implemented by January 31, 2015.

SEVP Launches Field Representative Unit

In addition to enhanced oversight of foreign student work authorization programs, SEVP, a division of ICE, recently announced that it has deployed 15 field representatives as part of its new FRU. The field representatives will serve as direct day-to-day liaisons between SEVP and schools certified to enroll foreign students in F or M status or schools seeking initial certification. According to DHS, the field representatives will also serve to enhance national security by fostering regulatory adherence and SEVIS data integrity.

SEVP field representatives will serve the following purposes:

• ensure that SEVP-certified schools understand SEVP rules and regulations;

• address questions related to the nonimmigrant student process;

• train and assist principal designated school officials and designated school officials;

• meet in-person with each SEVP-certified school in their geographical area at least twice per year;

• conduct scheduled school site visits to assist school officials with the SEVP certification and re-certification process; and

• attend conferences and meetings in their areas pertaining to nonimmigrant students.

The first group of 15 representatives is part of the 60 total field representatives SEVP plans to deploy nationwide to three regions (eastern, central, and western), each of which will be comprised of 20 field representatives. Schools that fall within one of the areas covered by the first 15 field representatives were contacted directly by the first week of May 2014.

At an April 3, 2014 webinar, Steve Acton, Unit Chief of the SEVP FRU, noting that field representatives are not investigators or agents but rather customer service personnel, stressed that the FRU has no role in law enforcement other than in cases of fraud and gross negligence. Should field representatives encounter these types of violations, the FRU’s role at that point will be limited to referral to law enforcement.

Ogletree Deakins is continuing to monitor developments with regard to these new initiatives, and we will provide updates as more information becomes available.