"U.S. Immigration and Customs Enforcement (ICE) announced Wednesday preliminary results from Operation OPTical Illusion, a law enforcement operation targeting nonimmigrant students who fraudulently used the Optional Practical Training (OPT) program to remain in the United States... The operation, which is ongoing, resulted in the arrest of 15 nonimmigrant students who claimed to be employed by companies that don't exist." See:
- ICE News Release (October 21, 2020)
- DHS Press Conference, DHS, ICE provide update on Operation OPTical Illusion (October 21, 2020)
The DHS press conference seems to have referenced two different initiatives:
- The HSI-CTCEU investigation called OPTical Illusion that resulted in "the arrest of 15 nonimmigrant students who claimed to be employed by companies that don't exist" and the follow-up of that investigation. This is the subject of the 10/21/2020 ICE news release.
- A separate project cited by DHS Acting Deputy Secretary, Ken Cuccinelli that resulted in 3300 students being contacted by ICE, out of which 2200 were able to resolve questions of their status and 1100 were identified by ICE as being "here out of status." Of those 1100, 700 have now been sent letters notifying them that their "work permits are going to be revoked," and 400 of which are so close to the end of their OPT that their EADs will not be revoked. Although we cannot be certain, the specific numbers and processes cited appear to be related to the initiative described in SEVP's Broadcast Message 2008-03: SEVP to Mail Notices to OPT Students Without Employer Information, informing DSOs of its plan to mail notices to OPT students "who have not reported employer information and have exceeded 90 days of unemployment." The message SEVP sent to these students gave them 15 days from the date of the notice to update their SEVIS record with employer information or their records would be terminated. See NAFSA's page on this.
Cuccinelli also injected an assertion that designated school officials (DSOs) "are supposed to... oversee the placement of their students or former students in OPT work. They sign off on this. And what we have seen in this area is what I would call not likely complicity, but a willful ignorance or a level of negligence that leads us down the path of terminating their role as designated school official." It is unclear where that is coming from.
NAFSA Press Release: Acting Deputy Secretary Cuccinelli Threatens to Terminate International Educators (October 21, 2020).
Some basic background on OPT
Eligibility. A student is eligible to apply to U.S. Citizenship and Immigration Services (USCIS) for post-completion optional practical training (OPT) after having been "lawfully enrolled on a full-time basis in a Service-approved college, university, conservatory, or seminary for one full academic year." See 8 CFR 214.2(f)(10). Typically, a student requests OPT following completion of their course of study. A student is limited to 12 months of OPT at the same educational level, but becomes eligible for another 12 months after moving to a higher educational level. All work done for OPT must be "directly related to the student's major area of study." See CFR 214.2(f)(10)(ii).
Process. "A student must have a recommendation from his or her designated school official (DSO) in order to apply for OPT." See 8 CFR 214.2(f)(11)(ii). This recommendation is made through SEVIS. "The DSO will indicate in SEVIS whether the OPT employment is to be full-time or part-time... and note in SEVIS the OPT start and end dates." See 8 CFR 214.2(f)(11)(ii)(B). Before recommending OPT in SEVIS, the DSO "must ensure that the student is eligible for the given type and period of OPT and that the student is aware of his or her responsibilities for maintaining status while on OPT." See 8 CFR 214.2(f)(11)(ii)(A).
Reporting requirements after OPT is approved. The regulations require a student to report "any change of name or address, or interruption of such employment to the DSO for the duration of the authorized training," and for the DSO "to reflect these reported changes for the duration of the time that training is authorized." See 8 CFR 214.2(f)(12)(i). The student may also choose to report these changes directly through the SEVP Portal, which interfaces with and automatically updates SEVIS. SEVP has interpreted this regulation to require that students report all employment changes throughout their approved OPT.
Limit on unemployment. A job offer is not a required element of the DSO's recommendation for standard OPT (it is a requirement for STEM OPT extensions, though), or of USCIS's approval of a standard OPT EAD. However, 8 CFR 214.2(f)(10)(ii)(E) states that "during post-completion OPT, F-1 status is dependent upon employment," and sets an aggregate limit on days of "unemployment" that can be accrued while on post-completion OPT. During standard post-completion OPT, a student may not be unemployed for an aggregate of more than 90 days. DHS can terminate the SEVIS record of students it determines have exceeded the 90-day limit on unemployment.
Key sources that guide DSOs and students in navigating their respective responsibilities during standard OPT include:
- DHS regulations at 8 CFR 214.2(f)(10) - (13)
- SEVP OPT Policy Guidance 1004-03 (2010) (April 23, 2010)
- SEVIS Help Hub - Optional Practical Training
- SEVP Policy Guidance: Practical Training-Determining a Direct Relationship Between Employment and a Student's Major Area of Study (September 27, 2019)
- SEVP Broadcast Message 2101-01: Enforcement of the Post-Completion OPT and Employer Information Requirement in SEVIS (January 4, 2021)