Use of H-1B alternative skyrockets

In 2008, the U.S. government changed the rules on student visas and allowed foreign STEM students to work in the U.S. for up to to 29 months without an H-1B visa. The program quickly grew in popularity.

Students could previously only work for 12 months before they had to get an H-1B visa.

The year that President George W. Bush approved the Optional Practical Training (OPT) program extension for science, technology, engineering and math (STEM) students, the U.S. approved 28,500 OPT applications.

In 2009, the number of approved OPT applications shot-up to 90,900, and has increased every year since.

After taking office, President Barack Obama also backed the program, and expanded the number of fields included.

Last year the U.S. approved 123,000 OPT applications, according to a new report by the U.S. Government Accountability Office (GAO). In the last six years, a total of 560,000 students received OPT approvals.

The GAO, in an examination of the program undertaken at the request of U.S. Sen. Chuck Grassley (R-Iowa), found OPT officials who said the program "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 a subsequent letter to U.S. Dept. of Homeland Security chief Jeh Johnson, Grassley said the GAO's report highlights a lack of coordination by government agencies and inadequate monitoring. The findings, he said, point to "a gross lack of oversight."

If not for the OPT program, students would need to seek a temporary work visa, an H-1B visa.

When the OPT extension was first approved, critics attacked it as nothing more than a backdoor expansion of the H-1B program.

Students working on an OPT visa don't have the same protections as H-1B visa holders. Companies that use H-1B visas must follow a certain set of rules, including paying prevailing wages, that aren't required under the OPT program.

The AFL-CIO said, at the time the extension was approved, that an OPT employee could, theoretically, work for minimum wage.

John Miano, founder of the Programmers Guild, which was among the parties that unsuccessfully challenged the 2008 OPT extension in court, said the lack of H-1B-like rules "makes OPT workers much more valuable" for an employer. They can work for a long period, and "are cheaper because the employer does not have to pay Social Security and Medicare taxes," he said.

At the time the OPT was expanded in 2008, the H-1B cap was being exhausted rapidly. It would be another year before the recession softened visa demand.

Although there was support in Congress for raising the H-1B cap, immigration proponents only wanted that cap raised as part of broader immigration reform effort.

The IT industry lobbied for the OPT extension as a means to keep students in the U.S. who couldn't get an H-1B visa because of the cap.

The GAO, in its report, recommended that U.S. immigration officials do more to ensure that colleges and employers are complying with OPT rules.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed . His email address is pthibodeau@computerworld.com.

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