The library and McGraw clock tower on the Cornell University campus. (Photo by John Greim / LightRocket … [+]
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Attacks on the optional internship (OPT) show that immigration opponents are also generally against the admission of international students to the USA. In order to gain experience in a chosen subject, international students can complete an optional internship for 12 months, usually after graduation, or up to 36 months in a field of science, technology, engineering and mathematics (MINT). International students, especially in STEM areas, are among the most sought-after prospective immigrants in the world, and without OPT, America would almost certainly lose more international students to Canada and elsewhere.
No Evidence of International Students at OPT “Taking” US Student Jobs: At a recent House hearing (July 13, 2021), MP Tom McClintock (R-CA) argued that the optional hands-on training was preventing U.S. students from finding jobs. He did not provide any evidence to support this claim, and for good reason: the evidence does not exist.
Madeline Zavodny, an economics professor at the University of North Florida and a former economist at the Federal Reserve Bank of Atlanta, examined the data on the optional hands-on program spanning nearly a decade and found no negative effects on US workers. “There is no evidence that foreign students enrolling in the OPT program reduce employment opportunities for US workers,” concluded Zavodny in a study for the National Foundation for American Policy. “The relative number of foreign students admitted to OPT is negatively related to various measures of the unemployment rate among US STEM workers. A greater number of foreign students admitted to OPT, relative to the number of US workers, is associated with lower unemployment rates among those US workers. “
An economic analysis published by the Business Roundtable (BRT) also examined the optional internship. The analysis found that limiting the OPT would reduce the number of jobs available in the United States. The BRT report concluded that a 60 percent reduction in international students on optional internship would result in a loss of 443,000 over a decade, “including 255,000 jobs held by native-born workers.”
Rep. McClintock argued that international students are preventing US students from finding employment because employers do not pay social security taxes for OPT attendees. Anti-immigrant organizations often use this argument against the optional hands-on training. However, there is no evidence that OPT prevents US students from being hired by US companies. OPT only lasts 12 months, which means that these “jobs” are essentially internships.
There is no guarantee that a person with OPT can receive an H-1B petition for long-term employment. The additional 24 months at STEM OPT are also not a permanent position, but a short-term posting. STEM OPT requires employers to make obligations similar to those that apply to H-1B visa holders. International students are not eligible for the Social Security program unless they are employed in the United States and are outside of a 5 year exemption under US law.
US tax law exempts F-1 students from the Federal Insurance Contributions Act (FICA) for the first 5 calendar years that they are in the United States. This is not a conspiracy to help employers as suggested by some immigration critics.
“My experience with filing tax returns for individuals in STEM OPT is that many of them become US tax residents (and subject to FICA) as they exceed the 5 year exemption from counting the days of US presence, and they have taken steps to remain in the US after their status has expired, “said Arthur R. Kerr II, an international and domestic tax lawyer with Vacovec, Mayotte & Singer LLP, in an interview. “Once an F-1 student becomes a tax resident and subject to FICA, he or she can also take advantage of the standard allowance and lower his or her income tax. The discontinuation of the FICA tax exemption is often offset by a cheaper income tax deduction. “
With data showing the massive number of computer job openings in the United States, the argument that foreign nationals prevented skilled US workers from getting technology-related jobs is even less valid today. The math and computing job unemployment rate was 2.2% in June 2021, according to the Bureau of Labor Statistics, and there are more than 1 million computer job postings in the U.S., roughly 20 times the number of new H-1B petitions Approved annually in corporate computing professions. (The labor market is not a zero sum. Highly skilled professionals are likely to make it easier for other professionals to be employed.)
Canada and other countries have more generous programs for international students: According to Peter Rekai of Toronto-based law firm Rekai LLP, Canada’s international student graduation program is more generous than the United States. This means that new restrictions will make it even more likely that international students will choose Canada (or other countries) over the United States. The number of Indian students at Canadian universities more than doubled between 2016 and 2018, while Indian students at US universities decreased.
Upon graduation, international students in Canada are entitled to a three year post graduation work permit. (For more background information, see my testimony at a recent House hearing.) After having qualified employment in Canada for at least one year, the point system gives international students a significant benefit in gaining permanent residence. Some provinces have programs (with numerical restrictions) that allow foreigners with a Masters or Ph.D. from a Canadian university for permanent residence, in many cases without a job offer.
In contrast, in the United States, more than 70% of H-1B registrations for FY2022 were denied due to low annual limits under US law for H-1B petitions. The wait for an employment-related green card (permanent residence) can be decades or more for many new applicants in America.
The UK has reformed its system along the lines of the Canadian student work visa. The UK grants graduates from UK universities a two or three year visa. “The Graduate Route was heralded as an immigration route to attract talent in the STEM sector,” notes law firm Fragomen. The policy change follows the announcement of a new Global Talent Visa, which also aims to recruit the ‘brightest and best’ talent worldwide in the STEM sector in response to growing concerns that this sector would be disproportionately affected after Brexit. ”
OPT and STEM OPT are lawful: Another common argument from immigration opponents is that optional internship and MINT-OPT are illegal. However, by order of November 30, 2020, US District Judge Reggie B. Walton ruled against WashTech (Washington Association of Technology Workers) in his lawsuit in which OPT and STEM OPT (the ordinance issued in 2016) were to be made illegal. (WashTech has appealed the final judgment to the U.S. Court of Appeals for the District of Columbia.)
In a report dated January 28, 2021, Judge Walton wrote: “Not only DHS D [Department of Homeland Security] enjoy broad, delegated powers to enforce the INA [Immigration and Nationality Act] and have issued rules for nonimmigrants, but “the DHS’s interpretation of F-1 – insofar as it allows employment for training purposes without the need for constant schooling – is“ longstanding ”and justifies deference. “Since at least 1947, [the Immigration and Naturalization Service (‘INS’)] and DHS designed immigration laws to allow foreign students to take up employment for practical training purposes. ‘”(See here for a more detailed discussion of the legal issues related to OPT and STEM OPT.)
Restrictionists are best known for criticizing “low-skilled” immigrants. However, the same individuals and organizations are also refusing entry to the United States for highly skilled individuals in high-demand fields such as electrical engineering and computer and information sciences. There are unlikely to be any political concessions that would win their support and allow US universities to remain competitive in attracting international students. In this context, one should understand the continued opposition to the optional internship and the many actions against international students during the Trump administration.