Student and Exchange Visitor Program: DHS Needs to Assess Risks and Strengthen Oversight of Foreign Students with Employment Authorization
Released: 2014-03-07T00:00:00

Letter

Background

Federal Agencies’ and School Officials’ Roles and Responsibilities Regarding Foreign Students Approved for OPT

Foreign students interested in studying in the United States must first be admitted to a school or university before applying for a visa at a U.S. embassy or consulate overseas. DSOs use SEVIS to issue Form I-20s to students, which enable them to apply for nonimmigrant student visas.The Department of State (State) issues nonimmigrant visas to eligible foreign students. The process for determining who will be issued or refused a visa, including F and M visas, contains various steps, including documentation reviews, in-person interviews, collection of applicants’ fingerprints, and cross-references against State’s name check database.

F visas are for academic study at 2- and 4-year colleges and universities and other academic institutions. M visas are for nonacademic study at institutions such as vocational and technical schools. Nonimmigrants who wish to work temporarily in the United States typically need to obtain a visa that allows them to work in the United States; F and M visas allow for limited employment authorization and may not be used in place of visa classifications designated for temporary employees. F and M visa holders are not allowed to work in the United States after completing their program of study unless they receive employment authorization through OPT.

A visa allows a foreign citizen to travel to a U.S. port of entry and request permission from an officer with DHS’s U.S. Customs and Border Protection (CBP) to enter the United States. However, a visa does not guarantee entry into the country. By interviewing individuals and examining the validity of their required documentation, CBP officers determine whether to admit individuals into the United States. Foreign nationals traveling on student visas are not generally issued specific dates until which they are authorized to remain in the United States, but instead are admitted for what is referred to as duration of status. This means that they may remain in the country so long as they maintain their student status (such as by enrolling full-time in an academic program or being approved for OPT after completing their program of study). USCIS adjudicates, among other things, change-of-status requests from other classes of nonimmigrants in the United States who wish to become F or M students. With regard to OPT, in particular, USCIS is responsible for adjudicating employment authorization requests from the foreign students who have obtained DSOs’ recommendations to participate in OPT.

Within ICE, SEVP, in conjunction with DSOs, is responsible for overseeing foreign students approved for OPT and maintaining information on these students in SEVIS. Also within ICE, CTCEU is responsible for (1) investigating foreign students who fail to enroll in or maintain status at their schools, including those foreign students approved for OPT, and (2) conducting criminal investigations of certified schools that do not remain in compliance with regulatory requirements. For example, CTCEU pursues criminal investigations against school officials who have exploited the system by operating sham institutions, which are operated solely to admit foreign nationals into the country without participation in educational programs. CTCEU assigns school and foreign student fraud-related investigations to ICE field offices; the offices can also open their own fraud investigations.

Requirements for Initial Approval and Ongoing Eligibility for OPT

According to ICE regulations and policies, OPT is available to eligible foreign students (F and M visa holders) who are enrolled in a college, university, conservatory, seminary, or established vocational or other recognized nonacademic institution, in a program other than English language training. Employment under OPT must be in a job directly related to the foreign student’s major area of study, and foreign students who apply to participate in OPT must have completed at least 1 academic school year or, in the case of M visa holders, their entire course of study. Foreign students on an F visa can temporarily work in the country under one of three types of OPT. First, foreign students may work part-time while they are in school or full-time on school breaks (pre-completion OPT).after completing a program of study (12-month post-completion OPT).

Second, foreign students may work full-time for up to 12 months Third, foreign students studying in areas of study related to science, technology, engineering, and mathematics (STEM) are eligible to work full-time for an additional 17 months (17-month STEM extension post- completion OPT). Table 1 shows the three types of OPT and their requirements.

As shown in figure 1, foreign students initiate the OPT application process by requesting a recommendation for OPT from their DSOs. The DSO is to ensure that students are eligible for the requested type and length of OPT and that the students are aware of their responsibilities for maintaining status while on OPT. ICE regulations do not require that students have secured employment prior to applying for pre-completion OPT or 12-month post-completion OPT; therefore, an employer name is not required to be entered in SEVIS at the time of the application. Regarding the 17-month STEM extension post-completion OPT, students must have secured employment prior to applying for this extension and must provide the employer’s name to the DSO. Prior to recommending the extension, the DSO must confirm that a student’s degree is a bachelor’s, master’s, or doctoral degree that is in DHS’s STEM- Designated Degree Program list. The DSO makes the recommendation through SEVIS, which updates the student’s Form I-20 to reflect the recommendation. The DSO is to update the student’s SEVIS record with the student’s requested start and end dates of employment, as well as whether the employment will be part- or full-time. In the case of the 17- month post-completion STEM extension OPT, the DSO is to enter and update employer information.

After receiving the Form I-20 that notates the DSO’s recommendation for OPT, the foreign student must file a Form I-765, Application for Employment Authorization, with USCIS within 30 days of the date the DSO enters the OPT recommendation into SEVIS and pay the required USCIS adjudicates all nonimmigrants’ applications for application fee.employment authorization by determining whether an applicant has submitted the required information and documentation, such as proof of the student’s financial support, and whether the applicant is eligible. Specifically, USCIS adjudicates the application for OPT employment authorization on the basis of the DSO’s recommendation and other eligibility considerations, such as whether the student can financially support himself or herself while on OPT, and for those students applying for the 17-month STEM post-completion extension, determining whether the employer is registered with E-Verify. Table 2 presents data on OPT- related employment authorization application receipts and related adjudication results (approvals, denials, and revocations) from fiscal years 2008 through 2013. During this period, the data show that USCIS approved 96 percent of the applications for OPT employment authorization. In fiscal year 2013, approximately 123,000 foreign students received approval from USCIS to seek temporary employment through OPT to complement their academic coursework.

If USCIS approves the application, it issues the student an Employment Authorization Document, or Form I-766. Employment authorization for pre-completion OPT, 12-month post-completion OPT, and 17-month STEM extension post-completion OPT begins on the student’s requested date or the USCIS-approved date, whichever is later, and ends at the conclusion of the approved period of OPT.

ICE Has Not Identified or Assessed Risks in OPT

SEVP has not identified or assessed risks associated with OPT, such as potential fraud or noncompliance with ICE regulations. Senior SEVP officials told us they consider OPT to be a low-risk employment benefit for foreign students because, in part, they believe foreign students under OPT do not have an incentive to jeopardize their foreign student visa status and future legal status to stay and work in the United States. However, SEVP has not developed a process to determine the extent to which schools that recommend and foreign students approved for OPT may pose risks.

Further, CTCEU officials and ICE field agents we interviewed at all seven ICE field offices in our review stated they believe OPT to be at risk for fraud and noncompliance based on their experience investigating these types of cases. Specifically, senior CTCEU officials stated that OPT is at risk for fraud and noncompliance, in part, because it enables eligible foreign students to work in the United States for extended periods of time without obtaining a temporary work visa. In addition, ICE field office agents we interviewed stated that foreign students approved for OPT present a risk for becoming overstays because they are allowed to work and remain in the United States for 12 to 31 months after graduation from school. Also, ICE agents and DSOs we interviewed stated that DSOs face greater challenges in monitoring foreign students in post-completion OPT because the students are no longer attending classes. Moreover, CTCEU officials stated that nonimmigrants are a vulnerable population that can be exploited by illegitimate companies or organizations that lure students to the United States with false promises of high-paying jobs and potential ways to stay in the country. For example, CTCEU officials stated that a recruiter or other third party may offer to help foreign students find OPT work for a fee or percentage of the foreign student’s salary once the student begins work under OPT. Additionally, SEVP’s compliance unit maintains a log of schools identified as potentially out of compliance with ICE regulations. As of September 2013, out of the 133 schools on the log, SEVP had identified 17 schools as potentially noncompliant with ICE regulations related to OPT.

Further, CTCEU officials and ICE field agents we interviewed described various cases involving OPT that demonstrate their concerns with the management and oversight of OPT. For example, in a 2012 case, according to an ICE investigator, a school charged students for an OPT recommendation on the Form I-20 and for keeping students in status once they had entered the country, without requiring school attendance. In another case, in 2012, ICE investigators initiated an investigation after they received a complaint about a school’s noncompliance with OPT requirements, such as students not working in their area of study. In particular, ICE investigators found that the DSOs at the school would submit fraudulent Form I-20s to recommend students for OPT; however, the foreign students were not using OPT to work jobs related to their areas of study (e.g., a nursing student working in a pizza parlor), which is not allowed under ICE regulations. In a third case, in 2011, ICE field office investigators initiated an investigation of a school on the basis of information received from CBP that indicated that one of the school’s DSOs was allegedly providing documentation authorizing students to work in jobs not related to their major areas of study.

Using information obtained through prior ICE field offices’ investigations of schools’ and students’ noncompliance with ICE regulations and policy requirements, CTCEU officials have identified potential risk indicators specifically associated with OPT and stated they have provided this information to SEVP. Specifically, CTCEU officials stated they provided position papers on multiple occasions from 2011 through 2013 to SEVP officials expressing concerns about risks in SEVP in general and OPT in particular, including recommendations to help mitigate these risks. For example, in a position paper dated April 2013, CTCEU officials recommended to SEVP that DSOs enter the date on which USCIS grants OPT employment authorization in SEVIS to allow ICE and USCIS officials to compare this date with the date of enrollment to identify potential risks of students seeking to commit immigration fraud. Also, in April 2013, CTCEU briefed SEVP’s compliance officials on SEVP- and OPT-related risk indicators. For example, CTCEU officials identified that a certain threshold, or percentage, of a school’s foreign student population approved for OPT may be a potential indicator of fraud involving OPT.According to our analysis of SEVIS data, as of August 2013, of the approximately 2,650 SEVP-certified schools with at least 1 foreign student approved for OPT, the percentage of each school’s registered foreign students approved for OPT met or exceeded the threshold identified by CTCEU at 193 schools. Of the 193 schools, 100 percent of registered foreign students were approved for OPT at 60 schools; most of these schools had 4 or fewer total foreign students, except for 1 school, where the data show that all 35 of the school’s foreign students were approved for OPT. The Deputy Director of SEVP agreed that the percentage of a school’s foreign student population approved for OPT could be an indicator of potential fraud.

In November 2013, the Deputy Director of SEVP stated that, in response to the recommendation from our June 2012 report that ICE develop and implement a process to identify and assess risks in SEVP, SEVP has taken initial actions to identify potential risks across SEVP-certified schools by developing a risk scorecard by which to assess schools and preliminary risk indicators to classify SEVP-certified schools by risk category. While these are positive steps taken in response to our June 2012 recommendation, SEVP is in the early stages of developing this risk scorecard and the risk indicators, and these efforts are focused on identifying potential risks to SEVP overall. As part of these efforts, SEVP officials have not identified and assessed potential risks specific to OPT posed by schools and foreign students or determined the extent to which the office will include potential OPT risks as part of their efforts to assess risks SEVP-wide. Senior SEVP officials told us they have not identified and assessed risks specific to OPT because they have not considered OPT to be a high-risk employment benefit; however, SEVP has not developed or implemented a risk management process to determine potential risks in OPT. Furthermore, on the basis of information from ICE field office investigations, CTCEU officials have identified SEVP- and OPT-related risks, but, as of November 2013, senior SEVP officials told us they had not yet incorporated CTCEU’s input, including relevant information from ICE field offices, into their efforts to assess potential SEVP-wide risks because they preferred to develop and implement a process to identify and assess risks in SEVP on their own before coordinating with CTCEU. DHS’s 2010 Policy for Integrated Risk Management and 2011 Risk Management Fundamentals establish DHS’s policy and guidance on risk. They instruct DHS and its components to incorporate a risk management process to their planning and management activities that includes, among other things, identifying the risks associated with goals and objectives, analyzing and assessing the identified risks, and using risk information and analysis to inform decision making. Also, DHS’s Policy for Integrated Risk Management is based on the premise that entities responsible for homeland security can most effectively manage risks by working together, and emphasizes that DHS and its components are to effectively communicate with stakeholders, partners, and customers within and throughout the risk management process. Without identifying and assessing risks in OPT in coordination with CTCEU, SEVP is not well positioned to incorporate a risk management process into its management of OPT. Further, obtaining and assessing risk information from CTCEU and ICE field offices from prior noncompliance and fraud cases involving OPT throughout the development of its process to identify and assess risks in SEVP, to include OPT, could better position SEVP to manage any risks associated with OPT.

ICE Cannot Fully Ensure Foreign Students Working under Optional Practical Training Are Maintaining Their Legal Status in the United States

ICE Does Not Consistently Collect Information Needed to Oversee OPT Requirements

ICE does not consistently collect information needed to oversee OPT requirements related to the type and timing of foreign students’ employment, as ICE regulations do not specifically require the collection of information on foreign students’ places and dates of employment in SEVIS. Such information could help ICE to better ensure that foreign students are maintaining their legal status in the United States and to identify and assess potential risks to OPT.

As indicated in table 3, SEVIS data on foreign students approved for the three types of OPT show that 38 percent of student records (48,642 of 126,796) do not contain an employer name, as of August 2013. Specifically, according to our analysis, the employer’s name is not included in 65 percent and 48 percent of pre- and 12-month post- completion OPT students’ SEVIS records, respectively. Foreign students are not required to have secured a job before seeking pre- and 12-month post-completion OPT, and an employer name is not required of the student at the time of application. Because 17-month STEM extension students are required to have employment prior to application and have ongoing reporting requirements, employer information is more complete, with less than 1 percent of student records missing the employer name.

In addition to noting the lack of employers’ names, our analysis of SEVIS data indicates that other information about employers that would be helpful to identify where foreign students are working, such as the physical address that can be used to differentiate between two employers with the same name, is not consistently collected and maintained in SEVIS. For example, of the 62 percent of student records that have the employer’s name populated, approximately 5 percent of those records (3,545 of 78,154) do not include other information on the employer, such as the employer’s address, state, city, and postal code. In addition, for all three types of OPT, ICE regulations and policy do not specifically require students to report to their DSOs when they begin or stop working, and do not require DSOs to enter those corresponding dates into SEVIS.

Without information on employers or employment start and end dates, ICE’s ability to oversee requirements for OPT is limited.

Job directly related to major area of study. ICE requires DSOs to ensure that a student is eligible prior to recommending OPT, and remains eligible for the duration of OPT, by being employed in a job directly related to his or her major area of study. ICE regulations and policy state that DSOs are responsible for reporting in SEVIS subsequent known changes in a student’s name and address, employer name and address, and known instances of a student’s failure to report to work. Specifically for students seeking the 17-month STEM extension of OPT, SEVP and USCIS require that DSOs enter the students’ employer information in SEVIS prior to recommending OPT, and SEVP requires regular confirmation of such students’ personal and employer information throughout the time of OPT. Although ICE regulations and policy require DSOs to ensure students’ eligibility and to report known changes in students’ employer information, they do not require that students report and DSOs provide students’ initial employer information (name and address, for example) in SEVIS for students pursuing pre- or 12-month post-completion OPT. According to SEVP officials, requiring this initial employer information for pre- and 12-month post-completion could place an additional burden or requirement on DSOs. Thus, SEVP officials stated that their office would prefer to make this type of change through regulation rather than policy. SEVP officials stated that, in general, changing regulatory language has been difficult and time consuming. However, previous regulatory changes that created the 17-month STEM extension, for example, have been implemented and added reporting requirements in SEVIS for employer information for foreign students approved for this extension.percent of all OPT students were approved for the STEM extension and, As of August 2013, approximately 20 according to our analysis of SEVIS data, almost 100 percent of SEVIS records for those students have the employment information as required by regulation for OPT students who have been approved for the STEM extension.

ICE regulations and policy require that DSOs ensure that a foreign student is eligible for OPT and assume responsibility for maintaining the student’s SEVIS record for the entire period of authorized OPT. ICE regulations and policy also require all OPT employment to be in a job that is directly related to the foreign student’s area of study. However, ICE has not provided guidance to DSOs to help determine and document whether the student’s job is related to his or her area of study. Requirements for DSOs to collect information on how a job is related to an area of study and guidance on how DSOs should provide such information in SEVIS could help provide ICE with reasonable assurance that foreign students engaged in OPT are working in jobs directly related to their area of study, as required under OPT. In addition to fields for foreign students’ employer name and address, SEVIS has two fields for DSOs to add comments or remarks regarding students’ employment; however, ICE does not require DSOs to provide any information on how DSOs arrived at the determination that students’ jobs relate to their studies in these SEVIS fields. According to SEVP officials and the program’s DSO training materials, DSOs could use these two SEVIS fields to explain how a student’s employment relates to the student’s program of study. According to our analysis of the two fields available in SEVIS for DSOs to enter remarks or comments regarding students’ OPT employment, we found that 27 percent of foreign students’ records (34,454 of 126,796) did not have any information in either field, as shown in table 4.

Although information is included in at least one of the employment comment or remark fields for the majority of student records, this information may not be relevant to whether students’ employment is related to their studies. SEVP has not developed or provided guidance for DSOs on how to determine whether a student’s job is related to his or her program of study and has provided limited guidance on how to report this information in SEVIS using the existing fields. Specifically, SEVP’s guidance on OPT recommends that students maintain evidence for how each job is related, including a job description, but is limited in that it does not direct students to report this information to DSOs or DSOs to enter this information into SEVIS. In addition, SEVP’s DSO training materials state that DSOs should use the remarks area in SEVIS to explain how the work relates to the students’ studies. However, the training materials are limited in that they do not detail both SEVIS fields that are available. In addition, the materials do not provide guidance on how DSOs should show that they took steps to help ensure that students’ jobs are related. Federal internal control standards state that federal agencies should, among other things, design and document internal control activities, such as guidance, to help ensure compliance with applicable laws and regulations. SEVP officials stated that determining whether a job is directly related to a program of study is not defined in the regulations and would be too difficult to define in policy because it is a subjective process. Therefore, ICE has not required DSOs to provide this information in SEVIS.

Because ICE has not required information on how students’ jobs are related to their studies and SEVP has provided limited guidance on how to provide this information in SEVIS, ICE does not have information needed to oversee OPT even when employer information is included in SEVIS. For example, we examined those student records for which an employer name was included for certain industries in which CTCEU officials were concerned about the potential of students working in unrelated jobs. According to our analysis, we found cases in which the SEVIS record indicated that students may not be complying with ICE’s regulatory requirement.students with degrees in fields such as economics, liberal arts, and psychology were working in food service and the SEVIS record did not include information as to how the employment was related to their field of study. We also found 9 cases in which students with degrees in fields such as computer science, engineering, and international studies were working in retail without an explanation included in the SEVIS record. However, we also found a case in which the student’s SEVIS record indicated that the individual, who had a degree in music, was working for a restaurant, but the employment remark field described the student’s employment as being a member of the restaurant’s house band. Developing and distributing guidance to DSOs with options on how to determine whether a job is related to the foreign student’s area of study and requiring DSOs to provide information in SEVIS to show that they took steps to help ensure that the work is related could help provide ICE with the information it could use to oversee OPT requirements.

Specifically, we found 35 cases in which Limits on unemployment. ICE has set forth limits on unemployment in its OPT-related regulations. Specifically, 12-month post-completion OPT students may not exceed 90 days of accrued unemployment during their authorized employment period, and 17-month STEM extension post- completion OPT students may not exceed 120 days of unemployment (which includes any unemployment accrued during the initial 12-month OPT period). These unemployment limits were added to the ICE regulations in April 2008 to clarify that, if a student accumulates too much unemployment while remaining in the country under the OPT employment benefit, the student has violated his or her status. Although ICE policy provides instruction on how a student and DSO may report and record dates of employment or unemployment, ICE regulations and policy do not specifically require foreign students to report to their DSOs when they begin working or DSOs to enter those corresponding dates in SEVIS.

Furthermore, SEVP’s policy specifically states that DHS maintains responsibility for determining whether a student has violated his or her status by exceeding the permissible limit on authorized unemployment. Federal internal control standards state that federal agencies should, among other things, design and document internal control activities to help ensure compliance with applicable laws and regulations. The dates on which authorization for employment from USCIS begins and ends are included in students’ SEVIS records; however, ICE does not have a mechanism to capture the date on which a student who was granted authorization actually started working or data on periods when a student is unemployed. According to SEVP officials and 12 DSOs with whom we spoke, it can be difficult for a DSO to maintain contact with students approved for OPT, particularly if a student engaged in post-completion OPT is no longer attending classes at the school and works off-campus for up to more than 2 years in another city or state. However, ICE’s regulations state that when a DSO recommends a student for OPT, the school—which includes its DSOs—assumes the added responsibility for maintaining the SEVIS record of that student for the entire period of authorized OPT. SEVP officials also stated that ICE’s ability to oversee foreign students’ unemployment time using SEVIS may be limited because the system does not systematically capture information from DSOs that may be used to calculate the accumulation of unemployment time. However, SEVP officials stated that SEVIS could be used to identify foreign students on post-completion OPT who have not had an employer listed for more than 90 or 120 days. According to SEVP officials, this mechanism would allow SEVP to track the initial unemployment of a student seeking work after receiving OPT employment authorization. As a result of not having complete data on foreign students’ initial employment dates or any subsequent unemployment dates, SEVP officials stated that they have not fully enforced these regulatory limits on unemployment. Requiring students to report to DSOs, and DSOs to record in SEVIS, students’ initial date of employment and any periods of unemployment could better position ICE to be able to oversee program requirements.

Foreign students approved for OPT, especially those approved for the two post-completion types of OPT, are allowed to remain in the United States after the completion of their studies to pursue employment yet remain on a student visa with the understanding that they are complying with OPT requirements. Without consistent information on where students are employed and when students begin employment, ICE is not positioned to oversee these requirements.

ICE Does Not Monitor whether Foreign Students’ Authorized Employment Complies with ICE Regulations

ICE has not developed mechanisms to consistently monitor whether schools and DSOs recommend OPT for foreign students and whether USCIS authorizes employment for foreign students that is permitted under ICE regulations. ICE requires DSOs to ensure students are eligible for the requested type and time of OPT prior to recommending it. After receiving the DSOs’ recommendation, students apply for and may receive employment authorization with USCIS. Through this process, DSOs and USCIS are to provide information on foreign students’ type and period of OPT in SEVIS. However, ICE does not monitor whether DSOs and foreign students are complying with requirements that students (1) have been in their program of study for at least 1 academic year prior to receiving authorization and (2) complete their OPT within certain time frames established by the type of OPT.

One full academic year requirement. As previously mentioned, ICE requires that OPT be authorized only for a student who has been lawfully enrolled on a full-time basis in a SEVP-certified college, university, conservatory, or seminary for 1 full academic year in order to ensure that those seeking OPT employment are primarily in the United States on student visas to pursue their education. However, ICE regulations and policy do not define and SEVP has not provided OPT-specific guidance to DSOs on what constitutes 1 full academic year for SEVP-certified schools. According to SEVP officials, ICE has not developed or provided specific guidance because the various types of programs have different academic schedules and any guidance may not apply universally to all schools. However, SEVP officials stated that they use definitions from the Department of Education when fielding DSOs’ questions on this issue. In November 2013, SEVP drafted and released for comment guidance regarding annual vacations that includes these Department of Education definitions of how much time typically constitutes 1 full academic year. However, this draft guidance does not directly apply to the regulatory requirement of completing 1 full academic year to be eligible for OPT. Because ICE’s OPT-related regulations and policy do not define 1 full academic year for the various types of programs and schedules for SEVP-certified schools, DSOs and USCIS may not be clear as to how the Department of Education’s definitions specifically apply to approving and authorizing employment for foreign students seeking OPT. Therefore, students may be engaging in OPT without having completed the required time in their programs. Our analysis of SEVIS records as of August 2013 indicates that DSOs marked 556 students’ records as not meeting the requirement of having completed 1 full academic year prior to engaging in OPT. Further, according to our analysis of time between the program start date to employment start date for students authorized for OPT, 1,446 additional students have not been enrolled in their program for at least 8 months (what we consider to be 1 academic year based on SEVP officials’ estimates) prior to beginning OPT. On the basis of our two analyses, over 2,000 foreign students approved for OPT may not have met the requirement of having completed 1 full academic year. According to SEVP officials, this requirement applies only once to a foreign student. For instance, if a student was previously in the United States on another visa in which he or she could attend school, the time spent in an educational program would count toward the 1 full academic year requirement. Also, according to SEVP officials, a student may have met the requirement thorough a combination of enrollment in a previous program and his or her current program of study. However, ICE regulations and policy do not specifically list this type of exemption.

Furthermore, SEVP’s guidance to DSOs specifically states that there is no exemption to the requirement that a student have been enrolled for 1 full academic year. Furthermore, federal internal control standards state that federal agencies should design and document guidance that would help to ensure compliance with applicable laws and regulations.

Developing and providing guidance to DSOs and USCIS on what constitutes 1 full academic year and how to apply this definition to recommending and authorizing OPT could help ICE better ensure that foreign students meet eligibility requirements for OPT.

Time frames for post-completion OPT. ICE regulations state that foreign students may be authorized for 12 months of OPT employment, which must be completed within 14 months following the completion of Students engaged in the STEM extension are granted an their program. additional one-time 17-month period of OPT employment, for a total of 29 months of total approved employment. This STEM extension must be applied directly following the end of the initially approved 12-month post- completion OPT and be completed in 31 months following the completion of his or her program. Our analysis of SEVIS student record data as of August 2013 shows that 9 percent of student records have authorized post-completion OPT employment dates that exceed the regulatory limits of total approved OPT and 8 percent of student records will not complete their OPT employment by the regulatory limits of 14 or 31 months, as shown in table 5.

Furthermore, our analysis shows 10 percent of students engaged in 17- month STEM extension OPT had work approvals that exceeded the 17 months allowed by ICE regulations and policy, and 10 percent of students would not complete their OPT within 31 months from the end of their program. According to SEVP officials, these extended periods of OPT may be explained by students’ using the cap-gap extension to extend employment authorization through the fiscal year while petitions filed on their behalf for a nonimmigrant employment visa are pending.officials stated that if a foreign student was approved for the cap-gap extension, the student’s SEVIS record should indicate such approval and the employment end date would be adjusted to include the extension. This approval, and subsequent extension, may cause the student’s SEVP employment authorization dates to potentially exceed the 12- or 17-month limits. However, our analysis of the SEVIS records shows that those students, included in table 5, who have periods of employment authorization exceeding regulatory and policy limits for OPT, did not have approval for the cap-gap extension.

Although SEVIS shows a student’s current OPT approval, the system does not display students’ past OPT approvals (previous pre-completion, for example) for the purpose of determining if a student has exceeded total limits on accrued work authorization. According to SEVP and USCIS officials, both rely on DSOs to track a student’s total amount of OPT and to recommend the appropriate amount of OPT for students depending on previously accrued OPT so as not to exceed regulatory limits. According to USCIS officials, it may check previous employment authorization applications by searching in CLAIMS or the Central Index System for an individual’s name; however, it relies on DSOs to recommend the allowed Without developing and implementing a mechanism to amount of OPT.monitor available information collected in SEVIS to determine total amounts of approved OPT over the course of students’ duration of stay, ICE does not have reasonable assurance that DSOs are implementing and students are complying with the regulatory limits on accrued employment approval. For example, students who may have engaged in the full amount of allowed OPT may leave the country, reapply to another school at the same education level, enter the country under a new I-20 and SEVIS identification number, enroll in a program for 1 academic year, and apply for OPT with the new program.

Foreign students approved for OPT are allowed to work in the United States while maintaining their student visa status in order to supplement their education with practical training with the understanding that these students, and the schools and DSOs that have responsibility for these students, are complying with certain OPT requirements. Federal internal control standards state that agencies should design controls, including policies and procedures, to ensure that ongoing monitoring occurs in the course of normal operations. Developing and implementing a mechanism to monitor available information collected in SEVIS about OPT that DSOs recommend and USCIS authorizes for foreign students could better position ICE to help ensure that foreign students do not exceed regulatory limits on the amount of time students are approved for work.

Conclusions

OPT, which is an employment benefit, provides certain eligible foreign students with the opportunity to seek temporary work to gain practical experience in their major areas of study during and after completing an academic program. A foreign student in post-completion OPT, in particular, is not required to leave the United States following graduation and can remain in the United States for the entire post-completion OPT period. Effective oversight of schools that recommend and foreign students who are approved for OPT entails identifying and assessing any potential risks, including opportunities for criminal exploitation, and being in a position to mitigate them. ICE has taken initial actions to identify risks across SEVP-certified schools; however, ICE has not analyzed available information to identify and assess potential risks specific to OPT posed by schools and foreign students. Identifying and assessing OPT-specific risks based on various factors, including risk information from CTCEU, could better position ICE to determine actions to help prevent OPT- related noncompliance and fraud and to address such noncompliance and fraud when they occur.

Moreover, ICE could take steps to improve its ability to help ensure that foreign students working under OPT are complying with OPT requirements and thereby maintaining their legal status in the United States. By consistently collecting information in SEVIS that indicates foreign students’ employers, how employment is related to these students’ studies, initial date of employment, and any dates of unemployment, ICE could better position itself to oversee the OPT requirements that foreign students are actively working in areas related to their studies and not exceeding limits on unemployment. Furthermore, by monitoring through analysis other OPT information, ICE could better ensure that schools and DSOs recommend OPT for foreign students and USCIS authorizes employment for foreign students that is permissible under ICE regulations. By collecting the appropriate information in SEVIS and monitoring such information for compliance, ICE may better position itself to determine whether foreign students approved for OPT are maintaining their legal student visa status while supplementing their education with employment directly related to their areas of study in the United States. Moreover, having more complete data in SEVIS on foreign students working under OPT could help strengthen ICE’s efforts to identify and assess potential risks to OPT.

Recommendations for Executive Action

To strengthen ICE’s efforts to develop and implement a process to identify and assess risks in SEVP, we recommend that the Director of ICE direct SEVP, in coordination with CTCEU, to identify and assess potential risks in OPT, including obtaining and assessing relevant information from CTCEU and ICE field offices.

To better ensure DSOs’ and students’ compliance with OPT requirements, and strengthen efforts to identify and assess potential risks in OPT, we recommend that the Director of ICE direct SEVP to take the following five actions: require that pre-completion and 12-month post-completion OPT students report to DSOs, and DSOs record in SEVIS, students’ employer information, including the employer’s name and address; develop and distribute guidance to DSOs on how to determine whether a job is related to a student’s area of study and require DSOs to provide information in SEVIS to show that they took steps, based on this guidance, to help ensure that the student’s work is related to the area of study; require that students report to DSOs, and DSOs record in SEVIS, students’ initial date of employment and any periods of unemployment; develop and provide guidance to DSOs and USCIS on how much time constitutes 1 full academic year for the purposes of recommending and authorizing OPT; and develop and implement a mechanism to monitor available information in SEVIS to determine if foreign students are accruing more OPT than allowed by ICE regulations.

Agency Comments and Our Evaluation

We provided a draft of this report to DHS and the Department of State for their review and comment. DHS provided written comments, which are reproduced in full in appendix II. DHS concurred with our six recommendations and described actions under way or planned to address them. For example, DHS indicated that, as part of ongoing efforts to develop an overall risk management program, SEVP will work with CTCEU in developing factors to identify risks for schools and students associated with OPT. Also, DHS noted that the functionality to track OPT employment information, including the employer’s name and address, dates of employment, and any periods of unemployment, have been incorporated into SEVIS and that the software that includes the required data fields is scheduled to be released in 2014. In addition, DHS indicated that SEVP will issue guidance to assist DSOs in collecting information on students’ employment for reporting in SEVIS and to clarify what periods of enrollment qualify as 1 full academic year. These and other actions noted in DHS’s written comments should help address the intent of our recommendations. DHS also provided technical comments, which were incorporated as appropriate.

The Department of State did not have formal comments on our draft report.

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If you or your staff have any questions concerning this report, please contact me at (202) 512-8777 or gamblerr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made significant contributions to this report are listed in appendix III.

Appendix I: Objectives, Scope, and Methodology

This report examines the extent to which the Department of Homeland Security (DHS) has (1) identified and assessed risks associated with optional practical training (OPT), and (2) collected information and developed monitoring mechanisms to help ensure students comply with OPT requirements and maintain their legal status in the United States.

To determine the extent to which DHS’s Immigration and Customs Enforcement (ICE) has identified and assessed risks in ICE’s Student and Exchange Visitor Program (SEVP) specifically related to OPT, we analyzed program documentation, analyzed data, and interviewed officials from DHS and its relevant components, including U.S. Citizenship and Immigration Services (USCIS) and ICE. In particular, we analyzed ICE and SEVP documentation, such as standard operating procedures, policy statements, and guidance for agency officials and designated school officials (DSO), to determine how ICE’s processes identify and assess risk related to OPT in SEVP.

In addition, to evaluate the extent to which ICE has identified and assessed risks related to OPT, we collected and evaluated information on SEVP compliance and watch lists that contain schools that SEVP has identified as potentially noncompliant or fraudulent and previous cases of OPT-related fraud through obtaining and analyzing documents and interviewing investigators from ICE’s Counterterrorism and Compliance Enforcement Unit (CTCEU). Also, we analyzed documentation CTCEU officials provided regarding risks and vulnerabilities they have identified in OPT-related policies, procedures, and regulations during the course of their work. In addition, we analyzed ICE news bulletins from January 2008 to November 2013 to help determine the magnitude of previous cases of fraud and evaluated information provided by CTCEU on criminal investigations related to school or student noncompliance or fraud involving OPT. Moreover, we collected and analyzed Student and Exchange Visitor Information System (SEVIS) data on schools that had at least one foreign student approved for OPT, as of August 2013, to identify examples of schools that pose a potential risk for fraud or noncompliance involving OPT using a risk indicator identified by CTCEU. Also, we interviewed officials from CTCEU and investigators from 7 of ICE’s 26 Homeland Security Investigations (HSI) field offices. Specifically, we conducted telephone interviews with ICE field offices located in Atlanta, Georgia; Boston, Massachusetts; Los Angeles and San Francisco, California; Newark, New Jersey; and New York, New York. We also conducted a telephone interview with an official from the ICE resident agent in charge field office in Charleston, West Virginia, which is under the supervision of the ICE field office in Philadelphia, Pennsylvania. We selected these locations based on the following criteria: (1) CTCEU officials identified the ICE field office as having previous or ongoing experience with school fraud and (2) SEVP identified the ICE field office as currently investigating a school in SEVP’s compliance case log. As we did not select a probability sample of ICE field offices to interview, the results of these interviews cannot be projected to all of ICE’s 26 field offices. While the information we obtained from officials at these locations cannot be generalized, the interviews provided us with the perspectives of ICE officials responsible for conducting school and student fraud investigations, including their views on the management and oversight SEVP has established for schools and students involved in OPT and any challenges ICE field offices have faced in their investigations. We also evaluated the extent to which ICE’s practices were consistent with DHS’s 2010 Policy for Integrated Risk Management and 2011 Risk Management Fundamentals.

To determine the extent to which ICE has collected information and developed monitoring mechanisms to help ensure students comply with OPT requirements and maintain their legal status in the United States, we also analyzed program documentation, analyzed data, and interviewed officials from DHS and its components. As part of our effort to evaluate these processes that SEVP uses to manage and oversee students approved for OPT, we reviewed applicable regulations, such as those governing nonimmigrant visa classes and schools recommending students engaging in OPT. policy and guidance documents specifically concerning management and oversight of OPT. We compared these policies with criteria established in regulations, as well as with criteria in Standards for Internal Control in the Federal Government.

The regulations governing nonimmigrant classes and OPT are found in 8 C.F.R. pt. 214. existing documentation on the controls in the system and the policies for ensuring data reliability; (2) interviewing agency officials about the data’s sources, the system’s controls, and any quality assurance steps performed after data are entered into the system; and (3) testing the data for missing data, outliers, or obvious errors. We identified several limitations to the data resulting from ICE’s process by which schools’ DSOs are responsible for data entry and updates. SEVIS is used by schools to apply for and receive SEVP certification, as well as for DSOs to keep records of individual students who enter the United States on F and M visas. Although SEVP officials may make edits to a student’s SEVIS record in some cases, all data or information entries on students are the responsibility of DSOs. Therefore, data elements that are not required may be missing or invalidly entered. For example, entries for schools’ physical locations may not be valid U.S. postal addresses. Furthermore, some SEVIS records may be duplicated because of students changing from one type of OPT to another. However, we were able to address this issue with duplicates by removing the record that was less accurate and up to date. While we identified such limitations, we found the data to be sufficiently reliable for providing descriptive information on the population of SEVP-certified schools that have recommended OPT and of foreign students engaged in OPT. We also found the data to be sufficiently reliable for analyzing student records for compliance with certain regulatory and policy requirements. We focused our analysis on several SEVIS fields related to management and oversight of foreign students engaged in OPT: (1) employer name and location, (2) remarks and comments on employment, and (3) dates of program of study and authorized OPT employment.

We also analyzed student records for which an employer name was included and belonged in industries such as food service and retail, industries in which CTCEU officials were concerned about the potential of students working in unrelated jobs. We analyzed a sample of 158 student records in which the employer name field indicated the student worked in select food service or retail industries. This is a select sample and is not representative of all records indicating a student is working in the food service or retail industries. We identified this sample by searching the SEVIS data of foreign students authorized to engage in OPT as of August 2013 for employers names with key words such as “restaurant,” “café,” “coffee,” “pizza,” and “burger,” as well as for select retailers. This search returned 207 student records, which we reviewed and subsequently made the determination to exclude 49 records based on the employer name including one of these search terms but belonging to a business outside of the food service or retail industries. For example, we excluded an employer that is a printing company with the word “café” in its name. From the sample of 158, we determined that 44 student records did not include additional employment information in the SEVIS employment comment or employment remark fields that explained how the job was related to the field of study and the records did not indicate a potentially related degree.

In addition to document and data collection and analysis, we interviewed SEVP officials to evaluate the extent to which their program has implemented controls related to OPT. We met with senior officials from SEVP, including SEVP’s Deputy Director, and management and staff for the five of seven branches involved in managing OPT—School Certification, Policy, Analysis and Operations Center, Field Representative Program, and Systems Management. We met with officials from CTCEU to understand the criminal enforcement perspective of managing and overseeing OPT. We interviewed USCIS officials to determine the extent to which USCIS has implemented processes for ensuring eligibility of students applying for employment authorization under OPT. In addition, we analyzed USCIS’s Computer-Linked Application Information Management System 3 (CLAIMS) data on OPT adjudication results from fiscal years 2008 to 2013. To assess the reliability of the CLAIMS data on foreign student OPT adjudications, we interviewed agency officials responsible for managing the data about the data’s sources and the system’s controls. We found the data to be sufficiently reliable for providing descriptive information on the number of employment authorization applications and approvals for foreign students engaged in OPT. Furthermore, we interviewed 11 DSOs, and received a written response from 1 DSO, who are employed by schools in Washington, D.C., and surrounding areas on their roles and responsibilities related to foreign students seeking or authorized for OPT and on any challenges in the management and oversight of these foreign students. We selected these officials because, as of July 2013, they composed a group of representatives from SEVP-certified schools of various types and sizes in the Washington, D.C., region that meets regularly with SEVP to discuss matters such as SEVIS and SEVP policy and requirements. As we did not select a probability sample of DSOs to interview, the information we obtained from these school officials cannot be generalized. The interviews provided us with the perspectives of DSOs responsible for overseeing students engaged in OPT. Further, we interviewed officials from NAFSA: Association of International Educators to discuss the organization’s views on OPT, including the involvement of DSOs in OPT.

We conducted this performance audit from February 2013 to February 2014, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from the Department of Homeland Security

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Rebecca Gambler, (202) 512-8777 or gamblerr@gao.gov.

Staff Acknowledgments

In addition to the contact named above, Kathryn Bernet, Assistant Director; Jennifer Bryant; Frances Cook; Lorraine Ettaro; Cynthia Grant; Kirsten Lauber; Elizabeth Luke; Lara Miklozek; Linda Miller; and Juan Tapia-Videla made significant contributions to this work.