OPT students face heightened scrutiny by ICE, any lapse in employment data can result in deportation

International students across the US are facing another unprecedented wave of enforcement, many students who are undergoing post-graduation Optional Practical Training (OPT) are receiving letters from US Immigration and Customs Enforcement (ICE) threatening termination of their SEVIS records and potential deportation.

The core of the issue lies in the reporting of employment status within the Student and Exchange Visitor Information System (SEVIS). OPT regulations grant students a maximum of 90 days of unemployment during their twelve-month program. Another 60 days is available to those undertaking the STEM-OPT program for an additional two years.

“The recent ICE letters indicate that an international student’s SEVIS record will be terminated if there is no employer information listed on the SEVIS portal. This signifies that the student did not report the OPT job on time or went over the allowed unemployment period, either of which can result in a termination of OPT status and initiation of removal proceedings,” said Snehal Batra, managing attorney at NPZ Law Group.

“This is a pretty big change for F-1 students. In the past, SEVIS did not usually terminate SEVIS records automatically for exceeding 90 days of unemployment. But now, with tighter rules, students could accidentally fall out of status for failure to report,” she added.

Immigration attorneys point out that OPT reporting rules require SEVIS to be updated within ten days of any change - be it a new job, new work site location, or loss of employment.

A copy of such a letter seen by TOI states, “Because there is no employer information in your SEVIS record, you are accumulating unemployment days and may have exceeded the permissible period of unemployment. If you have been employed during your OPT time, you must correct your SEVIS record. Please contact your Designated School Official (DSO) or utilize the SEVIS Portal to update your information. Failure to take corrective action may result in the initiation of immigration proceedings to remove you from the United States."

Via this letter, international students are given a strict 15-day deadline from the date of the notice to update their SEVIS records. Failure to do so will result in the termination of their SEVIS record, with its attached consequences such as deportation.

The Indian student community in the US is significant in terms of numbers. According to the Open Doors Report (academic year 2022-23), there were 2.70 lakh Indian students in the US, with 69,000 Indian students participating in OPT programs. Thus, several Indian students have at the receiving end of such letters.

According to ‘NAFSA: Association of International Educators’, the wordings of the letter are identical to those issued in 2020 under the Trump-Pence administration. However, according to education and immigration experts, this time there appears to be an uptick in the number of letters that are being issued.

“Traditionally, it’s been the school’s DSO that tracks SEVIS compliance, but since ICE administers the SEVP, they have been going in and terminating people who have accumulated more than 90 days of unemployment during their OPT,” said Jath Shao, founder of an immigration law firm.

“It is crucial to have employment, paid or unpaid, that is related to the major you graduated from. You must also promptly report your employment or unemployment to your school’s DSO. We have seen some cases where DSOs failed to timely update graduates’ employment status in SEVIS, but USCIS has reinstated the students’ status upon correction of the record,” pointed out Shao.

The gravity of the situation has prompted NAFSA: Association of International Educators, to issue a special advisory. It recommends that DSOs should diligently monitor the ‘Accrued unemployment days’ alerts. This alert identifies students with unemployment days, indicating whether they are employed as of the list's generation date. DSOs have also been urged to proactively follow up with students accumulating high levels of unemployment days and to remind them to update their employment information through the SEVIS Portal or their DSO.

Guidance to students:

“If you are nearing the end of the permitted number of unemployment days you have some choices including: leaving US before the end of the permitted number of unemployment days; enrolling in another qualifying education program and continuing in F-1 status, filing an application to change status to another visa category – say B-2 (tourist visa),” said Poovi Chothani, managing partner at LawQuest a Mumbai headquartered immigration firm.

Batra added, “In addition, international students should keep a written record of all OPT employment for their own record, including name of employer, dates of employment, name of supervisor, number of hours worked per week, job title and description. This information will also be helpful to prove maintenance of status when applying for a change of status from F-1 to say an H-1B.”