As debate heats up online around immigrant labor and the tech industry’s use of the H-1B foreign worker visa, a little-known process that allows student visa holders to transition into the workforce is also being viewed by some as a way for employers to hire cheaper labor.
In this instance, it comes down to taxes and a legal loophole that allows companies taking on STEM workers under a program known as Optional Practical Training (OPT) to avoid paying in to federal programs like Medicare and Social Security, or at least allows those companies to pay less in payroll taxes than they would for U.S. citizens or legal residents.
Like many other tensions around the current immigration system, which has remained largely unchanged for decades, this gray area has left the federal government open to legal challenges amid ever-growing frustrations around Big Tech and its use of foreign labor.
In the OPT program, “there’s no wage obligation in the way that there is in H-1B where we’re very tied to an obligated wage,” Anne Walsh, a partner at the San Francisco-based law firm Corporate Immigration Partners, told Newsweek. “That said, they must be compensated and experience the working conditions that are comparable to other similarly situated U.S. employees.”
How Popular Is STEM-OPT?
The OPT program allows companies to take on student visa holders for a limited term, either during their studies or after their graduation, while their F-1 visa is still valid.
In fiscal year 2024, U.S. companies employed 109,661 people on OPT. Amazon far outpaced other employers, with 10,167 OPT workers on its payroll, followed by the University of California system with 2,916. Google took on 2,454.
The program has expanded since its creation in 1992, with a lobbying effort in the 2000s leading U.S. Citizenship and Immigration Service (USCIS) to raise the cap on participants and extend the length of time allowed.
With over 200 companies making use of the OPT program, immigration critics have warned that is just another way they see American workers being pushed aside for cheaper labor.
“The OPT program is one of the most widely-used guest worker programs despite never being approved by Congress,” Jeremy Beck, co-president of immigration think-tank NumbersUSA, told Newsweek. “Business lobbyists pitched the idea of using OPT to get around the H-1B cap to the Bush Administration, which complied. The Obama and Biden Administrations expanded the program.”
U.S. Immigration and Customs Enforcement (ICE) told Newsweek that it regulates STEM-OPT through a 2016 final rule, which affirmed that student visa holders – who primarily use this program – were not required to pay into Social Security, Medicare or federal unemployment because of their status.
The rule granted employers the ability to save around 7.5 percent compared to the taxes and benefits they would pay for a U.S. resident or citizen worker. Another estimate, reported by Bloomberg in 2021, put the savings closer to 15 percent. Multiplied out, that potentially equals hundreds of millions of dollars staying on corporate balance sheets that would otherwise be paid into the federal tax pool under FICA.
Debate Over American Worker Displacement
In 2020, NAFSA, a non-profit professional organization focused on international education, published a report that said the set up left foreign students without the same benefits and certainties as other employees. It also alleged that the government was not doing enough to address deficiencies in the system itself.
Five years later, those concerns have only grown.
“Employers who hire OPT workers instead of Americans don’t have to pay payroll taxes, essentially giving them a discount for not hiring American workers,” Beck said. “OPT is one of many guestworker programs that displace qualified Americans in favor of exploitable foreign workers.”
ICE has made it clear that DHS does not have the power to change tax rules and laws – that remains the purview of Congress and the IRS. The agency affirmed in its 2016 final rule that it could only administer the program with the rules as they were, and are.
Newsweek reached out to the IRS for comment but did not hear back ahead of publication.
Walsh said that, despite the criticisms of the program, she believed the employers she works with on a regular basis were using STEM-OPT as something of a last resort.
“The obligations on the employer are definitely not as easy as hiring a qualified and willing U.S. worker,” she said. “They’ve got these obligations to fill out forms, to ensure proper supervision, to submit the required reporting at 12 months, and ensure that there’s no material changes that they have to report.”
The idea that employers would be motivated by tax breaks or tax loopholes in hiring is “specious, politically motivated, and without evidence,” said Dr. Fanta Aw, executive director and CEO of NAFSA.
“The real issue is that U.S. innovation requires expertise, especially in STEM fields, and international talent plays a vital role in meeting that need for expertise,” Aw said.
Will Anything Change?
Getty Images
That sits in contrast with the frustration being voiced, primarily on social media, that American workers – specifically highly educated college graduates – are being overlooked for roles they are qualified for while some of the best-paying jobs in the country go to workers on guest visas.
In March, Arizona Republican Representative Paul Gosar reintroduced legislation aimed at tackling the OPT pipeline. He said his Fairness for High-Skilled Americans Act, first filed in President Donald Trump‘s first term, would terminate the program.
“The OPT program completely undercuts American workers, particularly higher-skilled workers and recent college graduates, by giving employers a tax incentive to hire inexpensive, foreign labor under the guise of student training,” Gosar said in a March 25 press release, in which he called employers using the program “greedy”.
Getting Congress to pass such reform like this appears unlikely, with many other immigration bills dying in committee despite calls from both Republicans and Democrats for change.
Beck told Newsweek that NumbersUSA was making Gosar’s bill a priority, to ensure the end of the OPT program.
For Walsh’s clients, they want something different: a clearer pathway for legal status for the foreign students they take on.
“The frustration around having little to no option on the completion of STEM-OPT continues to get louder and louder,” Walsh said. “They want this talent, they don’t want them because they’re foreign workers, they want them because they’re positively contributing to growing their U.S. businesses and enabling the companies to hire more U.S. workers through their talents. So that continues to be a frustration that just gets louder and louder.”
As debate heats up online around immigrant labor and the tech industry’s use of the H-1B foreign worker visa, a little-known process that allows student visa holders to transition into the workforce is also being viewed by some as a way for employers to hire cheaper labor.
In this instance, it comes down to taxes and a legal loophole that allows companies taking on STEM workers under a program known as Optional Practical Training (OPT) to avoid paying in to federal programs like Medicare and Social Security, or at least allows those companies to pay less in payroll taxes than they would for U.S. citizens or legal residents.
Like many other tensions around the current immigration system, which has remained largely unchanged for decades, this gray area has left the federal government open to legal challenges amid ever-growing frustrations around Big Tech and its use of foreign labor.
In the OPT program, “there’s no wage obligation in the way that there is in H-1B where we’re very tied to an obligated wage,” Anne Walsh, a partner at the San Francisco-based law firm Corporate Immigration Partners, told Newsweek. “That said, they must be compensated and experience the working conditions that are comparable to other similarly situated U.S. employees.”
How Popular Is STEM-OPT?
The OPT program allows companies to take on student visa holders for a limited term, either during their studies or after their graduation, while their F-1 visa is still valid.
In fiscal year 2024, U.S. companies employed 109,661 people on OPT. Amazon far outpaced other employers, with 10,167 OPT workers on its payroll, followed by the University of California system with 2,916. Google took on 2,454.
The program has expanded since its creation in 1992, with a lobbying effort in the 2000s leading U.S. Citizenship and Immigration Service (USCIS) to raise the cap on participants and extend the length of time allowed.
With over 200 companies making use of the OPT program, immigration critics have warned that is just another way they see American workers being pushed aside for cheaper labor.
“The OPT program is one of the most widely-used guest worker programs despite never being approved by Congress,” Jeremy Beck, co-president of immigration think-tank NumbersUSA, told Newsweek. “Business lobbyists pitched the idea of using OPT to get around the H-1B cap to the Bush Administration, which complied. The Obama and Biden Administrations expanded the program.”
U.S. Immigration and Customs Enforcement (ICE) told Newsweek that it regulates STEM-OPT through a 2016 final rule, which affirmed that student visa holders – who primarily use this program – were not required to pay into Social Security, Medicare or federal unemployment because of their status.
The rule granted employers the ability to save around 7.5 percent compared to the taxes and benefits they would pay for a U.S. resident or citizen worker. Another estimate, reported by Bloomberg in 2021, put the savings closer to 15 percent. Multiplied out, that potentially equals hundreds of millions of dollars staying on corporate balance sheets that would otherwise be paid into the federal tax pool under FICA.
Debate Over American Worker Displacement
In 2020, NAFSA, a non-profit professional organization focused on international education, published a report that said the set up left foreign students without the same benefits and certainties as other employees. It also alleged that the government was not doing enough to address deficiencies in the system itself.
Five years later, those concerns have only grown.
“Employers who hire OPT workers instead of Americans don’t have to pay payroll taxes, essentially giving them a discount for not hiring American workers,” Beck said. “OPT is one of many guestworker programs that displace qualified Americans in favor of exploitable foreign workers.”
ICE has made it clear that DHS does not have the power to change tax rules and laws – that remains the purview of Congress and the IRS. The agency affirmed in its 2016 final rule that it could only administer the program with the rules as they were, and are.
Newsweek reached out to the IRS for comment but did not hear back ahead of publication.
Walsh said that, despite the criticisms of the program, she believed the employers she works with on a regular basis were using STEM-OPT as something of a last resort.
“The obligations on the employer are definitely not as easy as hiring a qualified and willing U.S. worker,” she said. “They’ve got these obligations to fill out forms, to ensure proper supervision, to submit the required reporting at 12 months, and ensure that there’s no material changes that they have to report.”
The idea that employers would be motivated by tax breaks or tax loopholes in hiring is “specious, politically motivated, and without evidence,” said Dr. Fanta Aw, executive director and CEO of NAFSA.
“The real issue is that U.S. innovation requires expertise, especially in STEM fields, and international talent plays a vital role in meeting that need for expertise,” Aw said.
Will Anything Change?
Getty Images
That sits in contrast with the frustration being voiced, primarily on social media, that American workers – specifically highly educated college graduates – are being overlooked for roles they are qualified for while some of the best-paying jobs in the country go to workers on guest visas.
In March, Arizona Republican Representative Paul Gosar reintroduced legislation aimed at tackling the OPT pipeline. He said his Fairness for High-Skilled Americans Act, first filed in President Donald Trump‘s first term, would terminate the program.
“The OPT program completely undercuts American workers, particularly higher-skilled workers and recent college graduates, by giving employers a tax incentive to hire inexpensive, foreign labor under the guise of student training,” Gosar said in a March 25 press release, in which he called employers using the program “greedy”.
Getting Congress to pass such reform like this appears unlikely, with many other immigration bills dying in committee despite calls from both Republicans and Democrats for change.
Beck told Newsweek that NumbersUSA was making Gosar’s bill a priority, to ensure the end of the OPT program.
For Walsh’s clients, they want something different: a clearer pathway for legal status for the foreign students they take on.
“The frustration around having little to no option on the completion of STEM-OPT continues to get louder and louder,” Walsh said. “They want this talent, they don’t want them because they’re foreign workers, they want them because they’re positively contributing to growing their U.S. businesses and enabling the companies to hire more U.S. workers through their talents. So that continues to be a frustration that just gets louder and louder.”
