On May 12, 2026, U.S. Immigration and Customs Enforcement (ICE) announced at a press conference that agency leadership would launch a nationwide crackdown on fraud within the Optional Practical Training (OPT) program for F-1 visa holders after audits of the program’s 25 largest employers allegedly uncovered widespread abuse.
OPT is a program administered by DHS that allows certain F-1 visa holders to work in the United States in employment related to their field of study. OPT participants can receive up to 12 months of work authorization, while graduates with qualifying STEM degrees may receive an additional 24-month extension, for a total of up to 36 months of employment authorization after graduation. This program has never been expressly authorized by Congress.
Addressing fraud within the OPT program is important, but fraud prevention alone does not resolve the program’s broader policy and legal deficiencies. Even a perfectly administered OPT program would still raise serious concerns regarding its lack of clear statutory authorization, its expansion far beyond the requirements of the F-1 student visa category, and its effect on the domestic labor market.
OPT was originally advertised to the public as a mechanism to provide short-term professional experience for foreign students in their field of study in the United States. Quickly, however, the program was expanded into a de facto guestworker program operating outside the framework Congress established for employment-based immigration.
In fact, OPT is now extraordinarily large relative to guestworker programs created by Congress. According to DHS data, more than 505,000 foreign nationals were participating in OPT in FY 2024. By comparison, the U.S. government approved H-1B petitions for initial employment of just 141,205 aliens (some petitions are not subject to the numerical cap), issued about 71,799 L-1 visas, and 139,541 H-2B visas in that year. While methodologies differ between “population” and “annual approvals”, it is clear the OPT numbers rival, and in some cases exceed, the populations of statutorily authorized programs.
With STEM OPT workers eligible to work in the United States for up to three years after graduation (the same duration of authorized stay as an initial H-1B visa, which can be renewed for an additional three years), it’s hard not to view the OPT as a work-around to allow corporations to bypass the legal requirements that participation in a congressionally authorized guestworker program would impose. For example, unlike the H-1B program for “high-skilled” labor, OPT does not contain a numerical cap enacted by Congress. Federal law limits the H-1B program to 85,000 new workers per year.
As CIS has discussed repeatedly, employers hiring OPT participants are also generally exempt from payroll taxes for Social Security and Medicare. This exemption can reduce employer labor costs by more than 7 percent per employee, creating a direct financial incentive to prefer OPT workers over U.S. graduates.
OPT also lacks many of the labor protections that Congress requires elsewhere in immigration law. Statute requires that employers pay H-1B workers the higher of the actual or prevailing wage of workers in their occupations. Employers must also attest to the Department of Labor that, among other things, the employment of the H-1B worker will not undermine the working conditions of similarly employed U.S. workers before they can petition for an H-1B worker. These systems are flawed, but they at least operate within a statutory framework enacted by Congress and designed to balance economic interests with protections for American workers.
There are no reciprocal requirements for OPT employers. As a result, employers have been encouraged by executive action to rely on a cheaper foreign labor while recent American graduates face increased competition in entry-level positions.
Conflicts with the Statutory Scheme
Congress created the foreign student visa program to facilitate temporary international educational exchange. Under the F-1 visa statute, foreign nationals may only be admitted “to pursue a full course of study” in the United States. Congress, however, never expressly authorized foreign students to be authorized to work, but the Immigration and Naturalization Service (now DHS) has argued that it has inherent statutory authority to provide employment authorization to students on an incidental and limited basis.
In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security (WashTech v. DHS), the Court of Appeals for the District of Columbia Circuit in 2022 agreed with DHS that it had the authority to authorize post-completion OPT and STEM OPT for F-1 visa holders. Although the U.S. Supreme Court denied the Washington Alliance of Technology Workers’ request for review of that decision, the D.C.C. decision did not place the program on unassailable legal footing.
The Supreme Court’s subsequent ruling in Loper Bright Enterprises v. Raimondo (2024) has moved jurisprudence away from broad judicial deference to administrative agencies’ interpretations of statutes. Courts’ increasing skepticism of agencies asserting broad regulatory authority absent clear congressional authorization should place OPT at risk again.
One of the most significant legal issues with OPT is that Congress never clearly authorized the program. The INA permits foreign students to enter the United States temporarily to study. It does not expressly authorize DHS to create a broad post-graduation employment program untethered from classroom instruction. Yet, through regulation, DHS transformed a limited practical training concept into a multi-year work authorization system encompassing hundreds of thousands of foreign workers.
Moreover, once an F-1 visa holder graduates, they cannot be considered to be maintaining the requirements of their immigration status because they are no longer pursuing a full course of study. Issuing work authorization, therefore, to a class of aliens that should be accruing unlawful status is an abuse of the immigration system.
Conclusion
Federal immigration law carefully delineates employment-based visa categories, numerical caps, wage protections, and employer obligations. Congress created specific statutory pathways for foreign labor when it intended to do so. OPT effectively circumvents those statutory schemes through executive action alone. If a program of this economic and political significance is to exist, CIS believes that Congress, not executive agencies, should authorize and define it explicitly.
Eliminating OPT would not prevent talented foreign graduates from working in the United States. Congress has already established employment-based immigration categories for that purpose, including the H-1B visa and various permanent employment pathways.
If employers truly need to hire foreign graduates for long-term positions, DHS should require employers to use the lawful visa categories Congress created rather than relying on an unauthorized regulatory workaround. Eliminating OPT would restore the original purpose of student visas, reinforce congressional authority over immigration policy, and ensure that employment-based immigration occurs through lawful channels established by statute rather than administrative whim. Reforms focused solely on fraud detection and compliance, while worthwhile, fail to address the more fundamental question of whether the program itself is consistent with the INA and the interests of the general American public.