For years, the Department of Homeland Security operated a program allowing tens of thousands of foreign students who recently graduated from a college or university to obtain valuable tech-related jobs. Known as post-completion Optional Practical Training, the program permits former students admitted to the United States on F-1 visas to work in STEM-related jobs for up to three years.
Tech companies love post-completion OPT. They do not have to pay employment taxes on enrollees. They also enjoy significant leverage over these individuals, whose continued residency in the U.S. is conditioned on maintaining their employment status.
Recommended Stories
Clearly, this program hurts recent American college graduates seeking employment in an environment where artificial intelligence is quickly replacing tech workers. As of 2023, the unemployment rate for recent college graduates in the U.S. is reported to be as high as 7.8% for those with certain STEM degrees. And, as of 2024, five of the 10 college majors with the highest unemployment rates — and two of the top three — are in STEM-related majors. While recent American college graduates are struggling to find a return on their academic investment, U.S. businesses are using F-1 visas and OPT to replace these American STEM graduates with cheaper foreign labor.
However, Congress never provided DHS with clear legal authority to operate post-completion OPT, despite its scope and reach. The law specifies that individuals entering the U.S. under the F-1 visa program are to be admitted “solely” for study. Post-completion OPT participants are no longer students nor are they pursuing a course of study. This program effectively creates a new worker visa category without congressional approval. Post-completion OPT is not just policy overreach — it raises constitutional concerns by intruding on Congress’s power to regulate immigration and employment. It is also apparently rife with fraud.
Two weeks ago, Immigration and Customs Enforcement reportedly identified more than 10,000 possible cases of fraud in the program. In a press conference announcing the findings, acting ICE Director Todd Lyons stated that investigators, while conducting on-site visits to employers, identified cases in which OPT participants were being managed by employees based in India. Lyons also alleged that shell companies were helping recent graduates remain in the country without sponsorship from a U.S. corporation.
The good news is that DHS can cancel administrative programs like post-completion OPT without any action from Congress. This can be accomplished through a regulatory process triggered under the Administrative Procedure Act. Landmark Legal Foundation initiated this process when it submitted a recent petition to DHS to rescind post-completion OPT. The petition presents constitutional, legal, and policy reasons for immediate DHS action.
For example, the operation of post-completion OPT violates the “major questions doctrine,” which requires clear congressional authorization for policies of broad economic significance. Post-completion OPT affects large segments of the labor market and involves substantial fiscal consequences, including tax exemptions tied to foreign student employment. Post-completion OPT also operates outside congressionally set visa caps and therefore functions as an “end run” around the carefully calibrated limits governing programs such as H-1B. The program, in other words, distorts the labor market in ways Congress never intended.
TODD BLANCHE ANNOUNCES $50 MILLION FRAUD BUST IN OHIO
Ending post-completion OPT means more valuable tech-related job opportunities for American college graduates. The number of enrollees in post-completion OPT’s STEM component has grown considerably since DHS extended the time college graduates can remain in the country. In 2023, ICE reported that 62,036 nonresident immigrants participated in the program. In 2024, this number increased dramatically to 95,384 individuals — a 21% increase. Cancellation also better aligns DHS’s regulatory programs involving immigration employment with the law.
An administrative program that costs taxpayers millions has no place in our government. The Trump administration can continue to build on the important and effective steps it has undertaken to eliminate fraud by rescinding post-completion OPT — the sooner the better.
Michael O’Neill is the vice president of legal affairs at Landmark Legal Foundation, a public interest law firm in Leesburg, Virginia and Kansas City.
