Do the "Best and Brightest" Foreign Students Actually Have to Finish Their Homework?

By David North on October 23, 2013

The administration and the mas migration people are always hectoring us that we must open our doors still wider to foreign graduates of U.S. universities, "given the nation's interest in attracting and retaining the world's best and brightest individuals", as this USCIS document argues.

Ah, but do the B&Bs also have to finish their homework before they can qualify for a U.S. job that might otherwise be filled by a citizen or a green-card holder?

No, of course, not!

First, some background: there is a widely used, relatively new wrinkle to the F-1 foreign student program, a wrinkle for former university students, notably those in the fields of science, technology, engineering and mathematics (STEM). Once they complete their educations they can continue to work in the U.S., usually off campus, as if they were still active foreign students. It is called the Optional Practical Training program or OPT.

They can legally work with a background in any discipline for 12 months, and can obtain another 17 months of legal status if their studies had been in one of the STEM fields. The total period is 29 months. (Many move from there into H-1B jobs.)

During the OPT time these workers are particularly attractive to U.S. employers because the employer does not have to pay FICA and other payroll taxes. That means the hiring corporation can save as much as $10,000 by choosing the F-1 OPT worker rather than a citizen, even though both are paid the same basic salary, something we noted in an earlier report.

The provisions of the OPT program would seem to be controversial enough as they stand, but recently USCIS apparently encountered a problem. Someone or someones who had completed most of their studies, but not their bachelor's, master's, or doctoral thesis, apparently wanted to obtain OPT status, despite the lack of that key document. Such persons are sometimes called ABDs, for all-but-dissertation.

Should such a person be allowed the 29 months of OPT (and no-payroll-tax status) just like the other foreign students who had finished all their scholarly requirements?

I suspect that the numbers are not large, but USCIS decided, as it nearly always does, that the definition of a legal foreign worker, an OPT in this case, should be expanded to cover the ABDs. I recognize that a thesis, particularly at the PhD level, is a major challenge, and usually a major accomplishment, but I had thought that the post-degree OPT status was only for people who had, in fact, completed their educations. I was wrong.

The USCIS interim policy memorandum is bad public policy for two reasons: 1) within the labor market, it makes it easier for a larger population of foreign graduates to take jobs that should be open to citizens, and 2) within academia it will just tend to stretch out the already slow process of completing one's graduate work.

While grad school deans at universities (who are routinely pro-foreign students) will presumably publicly accept this decision, I am sure that at least some of them will privately deplore it.

The public has just a few days to comment on this proposed rule. It is dated October 6, was first seen on the net on the afternoon of October 22, and has a comment deadline of November 1. Go here for information about how to submit a comment.