Tag Archives: student visa

High-skilled hacks: the case of Optional Practical Training

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

Roughly, the situation is like this: creating new visa categories requires legislative action. However, modifying the terms of existing visa categories is a matter of executive discretion. This means that various sorts of extensions can be built into existing visa categories even as people wait for “comprehensive immigration reform” to provide a long-term fix. In this post, I talk of one such stop-gap measure from which I personally benefited (and that was basically my only option): Optional Practical Training.

The system based on original intent

The visa system’s original intent is to try to be as restrictive as possible in granting visas, and to make it hard for people to smoothly transition from one status to another. So, the idea is that those who are on student visas have non-immigrant intent. Once their stay is over, they should go back home. If they want to come back for a job, they should re-apply back from their home countries, without any special advantage over all the other people who didn’t go to the US to study.

What influential high-tech people want to mimic

The students themselves, the universities that they go to, and the companies that wish to hire them, would like another ideal: despite the fact that they are on non-immigrant visas, the students should basically be able to apply for and get jobs, and start working just like US natives. This goal is very clearly at odds with the stated purpose of the student visa, which is intended to encourage study, not a transition to long-term settlement.

With that said, the idea that the US should allow high-skilled students to easily transition to Green Cards has a lot of sympathy within the legislative and executive branches of the US government. Thus, for instance, there have been talks, on and off, of a “staple act” that would allow permanent residency to any U.S. university student who graduates with a Ph.D. in science, technology, engineering or mathematics. But for various gridlock-related reasons cited by Alex, that I discussed in the introductory post, and the fact that this is fundamentally at odds with the purpose of the student visa, this proposal hasn’t really made progress. Incidentally, as Chiappari and Paparelli note, the SKIL bill, an earlier proposal quite similar to the staple act, aimed to do this for student visas. Chiappari and Paparelli:

The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

One direction that high-tech people have made progress in is introducing new skill-based migration schemes, many of which are somewhat niche (this was accomplished with the EB visas, part of the Immigration Act of 1990, and will be the subject of another post). Another direction is to use existing visa statuses, such as the student status (F) and exchange visitor status (J) and tag on more and more at the end of those. These extensions are typically justified based on arguments of “national competitiveness” such as those made in the American Competitiveness in the 21st Century Act (2000). This post discusses one such extension of the F status: (post-completion) Optional Practical Training. There are a number of related programs, including Curricular Practical Training (CPT), pre-completion Optional Practical Training, and Academic Training (this one is for the J status), but for simplicity, this post will focus only on post-completion OPT.

The annual cycle of the H-1B

In principle, you can apply for the capped H-1B (the H-1B category used by all organizations except non-profit research institutes) any time of the year. In practice, however, the quota for a given fiscal year (starting October) is closed within a few days. And applications can be submitted at most six months in advance of the start date. So if you want a shot at the H-1B, you have to apply on April 1 (or rather, the first weekday of April) to start the H-1B October 1.

This poses a problem for people who want to start a job immediately after finishing their studies. Let’s say you intend to graduate on June 15. If you want the H-1B, you need to have found your employer before April 1, and have him or her agree to put in your paperwork by April 1. And then when your studies are over, you have about two months to wrap up and leave. That means you need to leave the US by August 15. And then, since you are now no longer physically present in the United States, and your status has changed from student to worker, you need to apply for a new US visa. Hopefully, you’ve received the H-1B petition approval by then (even though the H-1B itself starts on October 1) so that you can get the new visa. Then, you can start the job on October 1. And graduating in June is the lucky case. If you’re graduating in December, you basically need to spend the next couple months finding a job (potentially violating the terms of your student visa) that you can only hope to start in October, then leave the US by February 15, while your employer files the H-1B petition on your behalf by around April 1. Then, you wait in your home country till around July or August, by which time you have received the petition approval. You then apply for the visa and then enter the US.

So basically, the annual cycle means that students in the US have less of an advantage over the masses of people outside of the US in terms of getting jobs. They still have a huge advantage — they can interview in person for jobs and shop between multiple jobs. But basically, they need to find employers who are willing to agree to file petitions on their behalf seven or more months before they can actually join the job. And unless they graduate in August, they basically need to go back home and get a new visa, with all the uncertainty that engenders.

Enter Optional Practical Training

Optional Practical Training timeline

Source University of Alaska Anchorage

In practice, post-completion Optional Practical Training is a hack around this problem for those on “F” student status. One can apply for 12 months of Optional Practical Training that can start any time within 60 days after the completion of one’s academic program. The terms of the OPT are quite flexible: you don’t need to have a job offer when you apply, and the status is not tied to a particular job. You do need to work during the OPT: a maximum of 90 days of unemployment is allowed. But the work can include contract work (a minimum of 20 hours per week) giving you some flexibility to shop around for jobs.

The most typical use case of OPT is that it serves as a stop-gap for the months between completion of the academic degree and the beginning of the H-1B program. For instance, if you are graduating in June, then you can start your job in July on OPT while your H-1B petition isn’t yet active. This still requires that you secure your job by February so that your employer can file the H-1B petition on your behalf by April, but at least you can start the job right after graduation, and you don’t need to travel back home and re-apply for the visa.

Another use case of the OPT is for somebody who is genuinely unsure about what to do after graduation. The person wants to experiment with different kinds of work. The OPT offers a little breathing room to do that without losing physical presence in the United States.

Related to the program of study

Another bureaucratic requirement of the OPT is that all jobs you do under the OPT must be related to the program of study. That’s because the OPT is tied to your program of study, and is allegedly for the purpose of giving you additional “practical training” in the domains you studied in your degree program (even though in practice it’s just transitional to a H-1B or other longer-term employment status for most people).

However, after some informal investigation, I discovered that relation to program of study was interpreted more loosely than one might naively think. It’s okay for somebody like me, who has studied group theory, to take up my current job that involves machine learning, data science, and programming, as long as I can clearly explain how the skills I learned in graduate school are relevant to my job. Moreover, unlike the H-1B, the job choice doesn’t need to be pre-approved by the USCIS. Rather, what they can do is retroactively ask you to justify how the job (or jobs) you did to meet your OPT requirements were related to your program of study. Having letters from your supervisors at each job, that clearly explained the relation, would generally be sufficient. In most cases, the USCIS didn’t bother. But I heard anecdotally of a chemistry Ph.D. who went into a finance job and was asked by the USCIS to justify it. He was successful in convincing them of the relationship. Basically, unless you are going into a completely unrelated domain (such as a math Ph.D. becoming a barista or an economics Ph.D. becoming a performing artist) you should be fine. (The fact that the relationship to program of study is interpreted loosely is tacit knowledge that you won’t find explicitly mentioned online in any authoritative source. Most university websites that provide detailed information on OPT will not put this information in writing. Oh well. Non-transparent rules and regimes create huge information asymmetries between those in the know and the general masses.)

The cap gap and the STEM extension

H1B cap gap

Optional Practical Training H1B cap gap explained diagramatically. Source: University of Chicago

The OPT has gradually grown to accommodate more and more cases. In the example above, what if you get your job offer only in May? With the original 12-month OPT, you can start your OPT in July (after finishing your academic program in June) but since you can only apply for the H-1B next cycle, you’re still in trouble: your OPT will end by next July. Your employer can file a petition for you next year, but that job can start only on October 1, so basically you are forced to take two or three months off from work, plus you need to travel home to get the new visa. An ingenuous workaround called the “cap gap” has been incorporated into the OPT: if, at the time of the completion of your OPT, you already have a H-1B petition pending with the same employer as you are working with on OPT, you can continue working on OPT with that employer until either your application is denied or your H-1B period begins.

Finally, consider a case like mine. I finished my degree program in December 2013. I didn’t have a job immediately out of graduate school, and was planning on working on a mentoring service with a friend at the time. I did contract work for some employers, including MIRI, using my Optional Practical Training. I finally transitioned to my full-time job in August 2014. It was too late for me to apply for the 2014 cycle. And my OPT would end in January 2015, too early for me to have my H-1B petition for 2015. So what could I do?

Enter yet another ingenuous workaround to the OPT: the STEM extension. This allows a 17-month extension to the OPT for people who have degrees in STEM subjects. The STEM extension comes with heavier restrictions than the usual OPT (in particular, employers need to be enrolled in e-verify). But still, that extra 17 months gives me a chance to apply for a H-1B in 2015. In fact, the STEM extension can be combined with the cap gap, so even if I am rejected in 2015, I can still apply in 2016.

Interestingly, the STEM extension can be attributed to the efforts of one man: Bill Gates. Here’s what he said in testimony to Congress:

First, we need to encourage the best students from abroad to enroll in our colleges and universities and, if they wish, to remain in the United States when their studies are completed. One interim step that could be taken would be to extend so-called Optional Practical Training (OPT), the period of employment that foreign students are permitted in connection with their degree program. Students are currently allowed a maximum of 12 months in OPT before they must change their immigration status to continue working in the United States. Extending OPT from 12 to 29 months would help to alleviate the crisis employers are facing due to the current H-1B visa shortage. This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

Congressional Testimony from Bill Gates, March 12, 2008, that seems to have directly led to the OPT STEM extension

Both the cap gap and the STEM extension, and the contribution of Gates to the passage of the latter, were noted in an article by Ted Chiappari and Angelo A. Paparelli. They write (pp. 2-3, footnotes removed to improve readability):

One of the expansions allows those foreign students lucky enough to win a number in the H-1B lottery to
have their OPT automatically extended until October 1, 2008, when their H-1B status will begin. This makes permanent an accommodation that was first introduced in 1999, but that has lain fallow since 2004. In 2005, Immigration and Customs Enforcement (ICE), the sub-agency of DHS that took over responsibility for administering the F-1 student registration program known as the Student Exchange Visit Information System or SEVIS, refused to implement this provision any more because of its concerns about its ability to track foreign students if they were granted a blanket authorization to stay here beyond their period of OPT. These security concerns are addressed in the new rule, which now requires employers to notify the school’s Designated Student Officer (DSO) of the departure or termination of the student within 48 hours.

The second expansion is an increase in OPT by 17 months to a total of 29 months for students with degrees in science, technology, engineering and mathematics (so-called STEM degrees). This appears to have been inspired directly by the March 12, 2008, testimony of Microsoft Chairman Bill Gates before the Committee on Science and Technology of the House of Representatives. In his testimony, Mr. Gates suggested: “Extending OPT from 12 to 29 months would help alleviate the crisis employers are facing due to the current H-1B visa shortage.” He also correctly observed that “This only requires action by the Executive Branch,” and he pleaded that “Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.” (The regulatory change may also have been inspired, indirectly or in part, by some ideas floated in legislative proposals introduced in 2006 and again in 2007 to meet U.S. employers’ need for skilled workers with STEM degrees. The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from intending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

DHS did in fact take action quickly, but it added a requirement that was not part of Mr. Gates’s testimony: mandatory participation by F-1 students’ employers in E-Verify in order to qualify for the additional 17-month extension. Moreover, DHS limited the 17-month extension to those in practical training in connection with one of the identified STEM degrees. The STEM degrees include a variety of disciplines in computer science, engineering, engineering technologies, biological and medical sciences, physical sciences, mathematics and statistics and science technologies, as well as in actuarial science, military technologies and health professions and related clinical sciences. DHS has designated STEM programs using the list of Classification of Instructional Programs (CIP) codes published by the National Center for Education Statistics (NCES).

The DHS action, which appears to have been announced formally by Homeland Security Secretary Michael Chertoff on April 2, 2008 (you can see the full memo here) was ignored by most, but did get noted and critiqued by some people concerned about the wages and employment opportunities of high-skilled workers (see for instance here and here).

Continued repercussions for visa renewal and travel

The hackish way in which OPT has been conceived — an extension of a non-immigrant student status that’s in practice treated as an interim to a dual-intent temporary worker visa — leads to some interesting contradictions. In particular, if somebody wants to travel outside the US for OPT, the person faces complications at two stages:

  • If the person’s student visa is still valid, he or she does not need to renew it. If, however, the student visa has expired, the person needs to re-apply for a student visa. However, a student visa can only be granted if non-immigrant intent is explicitly demonstrated. OPT applicants generally fail to meet this requirement, and might have trouble getting visas.
  • Re-entry at the port of entry is also complicated. For those within their usual student status (who have not yet begun OPT) a valid visa and travel signature on their I-20 suffice — few are subject to additional questioning. However, people on OPT have additional burdens of proof: they need a valid visa, a recent travel signature (within the last six months rather than within the last year), they need their Employment Authorization Document (EAD) card, and they also need proof of continued employment. Those who have applied for OPT and not yet received their EAD card are strongly advised to not travel. The travel signature requirement arises from the fact that the OPT is still part of student status, even though the student may be working in a different part of the country and has little relationship with the university otherwise.

The Georgia Tech Office of International Education offers a particularly candid description:

Students who decide to travel while the OPT application is pending are highly discouraged from leaving the U.S until the application has been received by USCIS and the I-797 receipt notice has been issued. Students should bring the receipt notice with them as proof that an application has been submitted. Although the receipt notice is a good substitution, admission into the U.S. is up to the discretion of the CBP officer, and there have been reports of students without their EAD work permit having problems at the port of entry.

[…]

OPT is a benefit of the F-1 status. Therefore, students traveling while on OPT and have an expired F-1 visa are required to apply for a new F-1 visa. Although the U.S. consulates/embassies are permitted to grant visa renewals to students participating in OPT, these students may be subject to additional scrutiny. The F-1 visa is a non-immigrant intent visa. Therefore, applicants are required to provide proof of “binding ties” to their home country. This may be more challenging for some students on OPT.

Procedures and requirements for visas can vary between countries and are often subject to change. As such, reviewing the visa requirements on the website for the appropriate U.S. Embassy/Consulate is the best way to prepare you for the visa application process. Visit www.travel.state.gov to determine the procedures for applying for a visa at the U.S. Embassy/Consulate in the country in which you’ll be traveling.

Proposed changes to OPT

While US President Barack Obama’s November 2014 immigration executive action announcement was primarily about deferred action for unlawfully present migrants, the memo from Secretary Johnson also contained some guidelines for changes to the Optional Practical Training program. The main changes being mooted are:

  • Increase the base length of the OPT.
  • Increase the length of the STEM extension.
  • Expand the set of degree programs eligible for the STEM extension.
  • Allow people to be eligible for the STEM extension based on their undergraduate degree program, even if that was outside the US. For instance, somebody who gets an engineering degree from India and then gets a MBA in the US would be eligible for the STEM extension under the proposed scheme.

Here’s a summary from the National Law Review:

Most foreign students on F-1 student visas are eligible for a year of post-graduate optional practical training (OPT) as long as the work experience that they gain is in a field that relates to their degree program. But 12 months of authorized OPT frequently is not enough time to bridge the time between the foreign student’s authorization to work on OPT and the granting of a temporary work visa status. The H-1B quota opens every year on April 1st, and the H-1B visas do not become effective until the following October 1st, at the beginning of the government’s new fiscal year. The quota has been exhausted immediately in the last several years, leaving no H-1B visas available until the next government fiscal year – resulting in a 17-month period with no H-1B visa availability.

This problem is less severe for F-1 foreign students who major in STEM (Science, Technology, Engineering or Math) fields. These students are eligible to apply to extend their OPT work authorization for an additional 17 months, as long as they are employed by US employers participating in the government’s E-Verify program. (E-Verify is a program that any employer can participate in, if it is willing to check its employees’ documents through a government database to ensure the employees are legally authorized to work in the United States. Some employers don’t have a choice: if they have certain federal government contracts, or operate in certain states, they must sign up for E-Verify.) Qualified foreign students who graduate with US STEM degrees are able to continue to work legally through multiple government fiscal years, increasing their chances of “winning” an H-1B visa before their OPT period expires.

The list of STEM “majors” that qualify a foreign student for a STEM OPT extension is limited, however, and the focus until now has been on the US degree program that the foreign student has just completed. It would be much more useful if the government would expand the program to allow for STEM-based OPT extensions for F-1 students who either graduate with a US STEM degree OR complete a STEM degree prior to studying in the United States. For example, many of our MBA students come to the United States with a STEM undergraduate degree. Furthermore, the list of STEM “degrees” should be expanded to be much more robust.

Accordingly, Secretary Johnson directed USCIS and ICE to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates.” The business community would like to see a significant expansion of STEM eligibility in the new rules. But the business community may not appreciate some OPT restrictions that the Secretary has suggested might be paired with expanded STEM eligibility. Currently there is great flexibility associated with OPT. F-1 graduates on OPT can be self-employed or work as independent contractors, and if they work as employees on a W-2, there is no prevailing wage requirement associated with their employment. The flexibility associated with OPT has proven extremely helpful to foreign entrepreneurs and inventors who use the post-graduation period to refine their inventions, products and business ideas, form companies, and find investors.

A later article from the National Law Review made some further suggestions:

But the STEM fields are narrowly defined. If the STEM fields are expanded, the STEM extension would benefit a larger number of foreign students and employers. In his memo, Secretary Johnson calls for USCIS and ICE to develop regulations to “expand the degree programs eligible for OPT” and to “extend the time period and use of OPT” for foreign Science, Technology, Engineering, and Math (STEM) graduates.

We hope that the expansion of degree programs will include degree concentrations in business administration, finance, economics, etc. so that a larger percentage of foreign students can take advantage of the STEM OPT extension option. In light of the H-1B visa crisis, employers across the US are clamoring for options to hire and retain foreign talent, and expanding eligibility for a post-graduation OPT extension responds to this need. Expanding the degree programs list would also bring value to the US by keeping talented graduates in the US Secretary Johnson also ordered USCIS and ICE to take steps to ensure that OPT employment “is consistent with labor market protections to safeguard the interests of US workers in related fields.” We hope that the end result of this directive does not decrease the flexibility that the OPT program currently offers foreign students. Students and graduates on OPT can be self-employed and work as independent contractors, a flexibility that is not afforded by other widely-available temporary work visa statuses. F-1 students and graduates are not subject to prevailing wage requirements during their employment on OPT which is particularly helpful to new entrepreneurs who sometimes volunteer their time to their own start-ups.

The current flexibility of the OPT program means students can take internships and employment that offer value and further their education. During this limited period, they now have a range of choices and options, including working on their own start-ups. Undue restrictions on the F-1 OPT program would be counterproductive to the goal of improving and enhancing the program to provide the US with talented, energetic and motivated foreign students and graduates.

Lawsuit

I also recently came across a report of a lawsuit challenging the Optional Practical Training program. The lawsuit predictably attacks the half-truths and hackish workarounds used to justify the program. Although approval for the lawsuit came after the memo suggesting possible changes to OPT, the lawsuit had been filed a while earlier and challenged the OPT as it had existed in the past. The article says:

The WashTech lawsuit, which is being heard in federal court in the District of Columbia, challenges the OPT program. If the judge ultimately sides with the plaintiffs, the case could be bad news for the OPT program generally, as well as Obama’s plans to further expand it.

Students still in school or recent graduates can use their student F-1 visas to take jobs through the OPT program. Employers don’t have to pay them a prevailing wage, or Medicare and Social Security taxes. These tax breaks make OPT workers “inherently cheaper” to employ than U.S. workers, the lawsuit argues.

The last para is somewhat inaccurate. It’s true that students on F status, whether currently enrolled or on OPT, are exempted from paying Social Security and Medicare taxes during their first five calendar years (see the Substantial Presence Test for more). On the other hand, those who have been in the US for more than five calendar years do generally need to pay Social Security and Medicare taxes while on OPT. It is also true that the prevailing wage requirement does not apply to OPT, but a large fraction of OPT employment is meant as a stop-gap prior to a H-1B petition, and the latter is subject to prevailing wage rules.

The article continues:

The 17-month extension may have acted as a catalyst in generating interest in the OPT program. There were 123,000 approved OPT students last year, compared to 28,500 in 2008 when the added time was approved.

John Miano, an attorney involved in the case and founder of the Programmers Guild, said the DHS “knew when they promulgated the OPT expansion that it was illegal.”

The justification for the 17-month expansion of OPT for STEM workers “was a ‘critical shortage’ of STEM workers,” said Miano, adding that the DHS had “no objective evidence to support the claim of a worker shortage.”

Miano said the only justification of a worker shortage is from one government study that made no such conclusion, the Rising Above the Gathering Storm report from 2007.

Now, the government will have to explain “where in the cited reported does it say there is a critical shortage of STEM regulations?” said Miano. And with that, “the regulations fall apart.”

There had also been an earlier lawsuit from the Immigration Reform Law Institute, back on May 29, 2008, challenging the STEM extension shortly after its announcement. However, the lawsuit was thrown out by a New Jersey district court judge (you can see the full proceedings here).

Conclusion

I’m personally quite grateful for this series of hacks. Without them, I wouldn’t have been able to stay in the United States. Or I might have been able to stay but would have been much more constrained in my choices. Without the STEM extension, I could not in good faith have accepted my current job. Just a few weeks ago, I was a little worried, because my case status for the STEM extension wasn’t showing up on the USCIS website. If my case had been lost, this would have been terrible for me and my employer. However, after a long phone conversation with USCIS representatives, I learned that the reason my case status wasn’t displaying online was that Obama’s deferred action announcement had required some system upgrades so they weren’t up-to-date. I finally got information that my case was proceeding normally, and my application was approved last week.

But, while these hacks have served me quite well, I also believe that the system as a whole doesn’t make sense. I wish that the same effective freedom that I enjoy were available to people around the world, high-skilled and low-skilled. People will always be constrained by their personal limitations and the limitations of the world around them. But I believe that many of the limitations imposed by migration law are an unnecessary additional set that should be dispensed with.

PS: For simplicity, I have omitted discussion of many aspects of the OPT, including something called pre-completion OPT. For a more comprehensive overview, see the Wikipedia page [FULL DISCLOSURE: I significantly expanded and restructured the page in a series of edits in September 2013, while researching it in preparation for applying for it. I made another series of relatively minor edits shortly after the publication of this blog post, adding some material I discovered in the course of research for the blog post.]

PS2: This didn’t fit well in the main post, but might be of interest anyway: employers have historically been reluctant to hire people on OPT if the annual cycle for those people means they can’t have a H-1B petition in by then. A National Law Review article notes that it has been ruled legal (i.e., not afoul of anti-discrimination law) for employers to choose to forgo hiring workers on OPT for this reason:

In a Technical Assistance Letter (TAL), the Office of Special Counsel has stated that an employer can disqualify an applicant because of future OPT expiration without running afoul of the Immigration and Nationality Act. The INA’s anti-discrimination provisions apply only to U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. “Accordingly, F-1 visa holders are not protected from citizenship status discrimination,” the Office of Special Counsel states. Therefore, an employer who inquires as to whether the candidate requires sponsorship now or in the future is not participating in discriminatory practices.

This makes conditional sense: the private “discrimination” here isn’t discrimination as much as a government-forced constraint on hiring. My co-blogger Nathan has argued that private discrimination should be permitted even as governments get out of the way, but in this case (and many other cases) the private discrimination is a rational response necessitated by government policy.

Related reading

Immigration Comics

Recently my co-blogger Vipul has begun to write about visa policy in the United States: about how most visas cannot be renewed within the United and about automatic visa validation.  Vipul’s posts reminded me about a plot line in PhD Comics, written by Jorge Cham, PhD.

"I'm harboring an illegal alien?"PhD Comics by Jorge Cham

A few years back Tajel, the strip’s social science graduate student and resident foreigner, discovers that her visa has expired. The story chronicles Tajel as she discovers that she might be an illegal alien, her journey to Mexico to renew her visa there and, as obligatory of any comic series dealing with graduate students, makes several jokes at the expense of higher education.

The series also gave birth to this lowly little explanation of the student visa system in the United States:

phd062308sPhD Comics by Jorge Cham

Despite the comedic nature of these comics, they do give us some idea on how we might wish to push forward when making our case for open borders. We must (and currently do) make our case towards intellectuals, but we must also make the case towards the average man on the street. Comics might be one avenue to explore.

The beauty of comics is their simplicity. Due to the history of comics in newspaper the profession has adopted the four-panel (or Yonkoma) standard. A comic had to be short as larger strips were difficult to fit it into the valuable space in a newspaper layout. The result has been that comic artists have had to master telling their story quickly. With the dawn of web comics artists have been able to experiment with panel designs, but even then the most popular comics use as few as possible panels as possible.

Am I implying that the average man on the street is incapable of comprehending ‘intellectual’ arguments? Not at all. The average man does however have different comparative advantages and resources than ‘intellectuals’. The average man on the street is juggling work and family life; the amount of time he can devote to leisurely pursuits is limited. We should not be surprised then if he prefers to browse the funny pages over picking up a book on the economics of immigration.

Comics themselves are often seen as ‘low’ culture, but I think this is unmerited. Comics can be, and have been, used to discuss serious issues. Alan Moore, a comic artist best known perhaps for his work on the Watchmen or V for Vendetta, has used his art to share his  anti-authoritarian view on politics. Aaron McGruder, creator of the Boondocks strip, uses the media form to discuss current events from his uniquely leftist view. Little Orphan Annie, which modern audiences might better remember as the source material of the musical Annie, was created by Harold Gray to attack the New Deal and promote conservative politics.

BoondocksBoondocks by Aaron McGruder


Read More In This Series

This is an ongoing series on ideas on how the open borders movement should proceed next.

What should be next for the Open Borders movement? by Michelangelo Landgrave

Philosophers, Wonks, and Entrepreneurs by Vipul Naik

Why the Open Borders Movement Should (Mostly) Avoid Emulating the Gay Marriage Movement by Nathan Smith


You can read the rest of Tajel’s visa story at phdcomics.com. For the convenience of readers I’ve compiled the relevant comics below (the series had several mini-arcs in between).

Part #1 – Did you know your student visa is expired?
Part #2 – I’m harboring an illegal alien?
Part #3 – Apparently it’s the D/S on the I-20 that determines USCIS…
Part #4 – Give us your tired, your poor, your thoroughly confused…
Part #5 – I’ll go to Tijuana!
Part #6 – The F-1 Student Visa Process Explained
Part #7 – Your application triggered several red flags.
Part #8 – For security purposes we need a statement of exactly what your thesis is.
Part #9 – At least you picked me over the internet.
Part #10 – Professors: More Elusive Than Ninjas?
Part #11 – Ninjas vs Professors: A Comparative Analysis
Part #12 – I see him!
Part #13 – Professors exist as probability density functions.
Part #14 – Does this mean interactions are purely hypothetical?
Part #15 – I wonder what’s going on today?
Part #16 – Did someone not need me?
Part #17 – Free the burros!

All images copyright of their respective creators.

 

Visa versus authorized stay: why can you not renew your visa in the United States?

This post focuses on a small part of US non-immigrant visa and status law. There is a lot of value in comparing the US system to other countries, something that I hope to explore in future posts. But I want to begin with the US case, with which I am most familiar and that is of interest to a larger audience.

One of the first things I learned in the International Student Orientation at the University of Chicago, back when I joined it for graduate studies in September 2007:

You cannot renew a United States visa within the United States. You have to travel outside the country to apply for a new visa.

(see for instance here or here, or just Google around).

This in particular affects students and temporary workers (such as those on H-1B visas). In January 2013, there was a White House petition asking for a change in the law to allow H-1B visas to be stamped in the US. The text of the petition:

At the time of approval of H1B petition, USCIS checks for all the documents but still require petioner to visit home country to get Visa stampped on the passport. Due to which most of the H1B skilled workers can not visit back home to see their families as they don’t want to take chance/risk. If givernment allows visa stamping in US, it will unite many families who have not seen their parents for long long time as Grean card process takes more than 10 years in case of India/China.

So what’s going on? In this post, I provide an overview of the relevant legal rules, the historical development and possible reasons, and some recommendations.

Non-immigrant long-term stays: a middle ground between permanent residents and tourists

One can broadly classify three kinds of non-citizens who can have authorized presence in the United States:

  • Permanent residents: They don’t need a visa to enter the country, though they may still need their passports and Green Cards if entering at certain ports.
  • Business visitors and tourists: They are supposed to only be conducting business meetings or tourism or meeting family and friends, rather than engaging in work or study.
  • All other people with non-immigrant or dual intent visas, including students, exchange visitors, and people on various work visas.

This is of course a very crude oversimplification (I’ve gotten completely rid of humanitarian statuses, short-term commuters from nearby countries, athletes and performers, and various regularized illegal immigrants). This post is about the third category, i.e., people who are neither on a path to permanent residency nor tourists. They have a semi-long-term connection with the United States. For instance, they may be residents for tax purposes, they may own land and cars or rent property long-term, they may have US bank accounts. But their visa category is not explicitly for the (sole) purpose of transitioning to permanent settlement.

Visa, authorized entry, and authorized stay

So you want to come to the US to study or work? Here’s the process:

  • Authorization document: The first step is to get a document that authorizes you to be present in the United States in the appropriate status. For instance, if you are entering as a student on a F-visa or J-visa, you need (respectively) an I-20 or DS-2019 document from the educational institution that you will be attending. This process doesn’t directly involve approval by the US government: as long as you get admitted to an educational institution that has the authority to issue these authorization documents, you’ll get it. On the other hand, to get work authorization under the H-1B quota, your application goes through the US government, that has a quota for the number of applications approved.
  • Entry visa: Armed with the authorization document, you can apply for an entry visa at a consulate in a country other than the United States (typically your home country, but if you’re unlucky enough to be in, say, Iran, you just need to take a trip to Turkey or some other country to get the visa interview; also, not all consulates allow people from other countries to appear for visa interviews). People of some nationalities only get single-entry visas, which means a given visa can be used to enter only once, whereas those in other countries generally get multiple-entry visas.
  • Authorization for entry: The visa is not a guarantee that you will be allowed to enter the United States. It just means that, assuming the rest of your paperwork is in order, you are authorized to present yourself at a United States port of entry, and doing so will not constitute a black mark against you for US immigration even if they don’t let you in. When you are actually present, they make a determination whether to let you in (in practice, this last step is a mere formality, they just wave most people through after checking their visa and authorization document). You can safely present yourself at the port of entry only if both your visa and your authorization document are valid.
  • Authorization for stay: When you enter, you are issued an I-94 Arrival/Departure Record Card with “D/S” (that reads “Duration of Status”) written on it and means that you can stay in the United States as long as your authorization document is valid, even if your visa expires. Those arriving for work generally don’t get “D/S” but instead get a specific end date, but nonetheless, if their work authorization is extended then they can stay beyond the end date (On a side note, it was big news, when in April 2013, the US finally made the I-94 electronic).
  • While in the United States, you can happily switch from one authorized status to another. For instance, you can transition from student status to H-1B status and then back to student status and so on, by filing the appropriate forms for change of status (Form I-129 when transitioning to a work authorization status, Form I-539 for most other transitions). Throughout the process, you don’t need to leave the US or apply for a new visa, as long as you apply for a change of status before your existing status has run out. But if you do leave the US, and your status is different from what you were granted the visa for, or if your visa has expired (time-wise), or if it was a single-entry visa, you need to apply for a new visa. Note: It is fairly difficult (though not impossible) to roll over from business/tourist status (B1/B2 visa) or Visa Waiver Program (VWP) travel to any of these statuses, though some B visas come with annotations that allow for such transitions.

F-1 Stamp
Paper I-94 Arrival Record Card for a student entering in F-1 Status. The “D/S” indicates that the student may continue to stay in the United States while in authorized status. This includes a possible change from student status. Source: University of Chicago page on visa vs status

For more background reading, see here (focused on students) and here (more general).

The visa interview

US visa interview in Ho Chi Minh
US visa interview in Ho Chi Minh. Source: YouTube video by the Ho Chi Minh consulate

For some visas, such as the student visa or H-2 visa, that are explicitly considered “non-immigrant” visas, it is your job to convince the consular officer who interviews you that you do not intend to permanently immigrate to the United States. Other visas such as the H-1B are explicitly considered “dual intent” — it is okay to indicate intent to possibly immigrate to the United States permanently but it’s still important to demonstrate a strong connection with the home country so that it doesn’t seem like you’ll have nowhere to go once your time in the United States is up.

In practice, this solomonic determination is not made with anything approaching the rigor of a court case. Most visa interviews last somewhere between 1 and 10 minutes (my own was about a minute). It’s not very clear what consular officers are actually evaluating at the time, but it seems that they generally have a small set of guidelines to check against. John Lee has covered this at some depth.

Some of the tips that I got on the visa interview illustrate the absurdity of the system. It was stressed that it’s important to wear good clothes to the interview and to greet the officer with a smile and a greeting (and be sure to say “good morning” or “good afternoon” correctly, so that the officer knows you can understand the concept of time of day). Some interviews scheduled for the morning end up happening in the afternoon, and you as an interviewee are probably irritable after standing in line for three hours, so you might mess up the greeting if you weren’t careful. So it’s all the more important to look cheerful, because first impressions matter. And don’t argue with the immigration officers. They won’t generally be awful just for the sake of it, but they don’t like people who argue with them.

Even though the actual interview lasts less than ten minutes, the application process is quite long-drawn. In many places, interview slots open only a month in advance and are booked immediately upon being opened. So if, say, you are on a student visa from China to the United States, and you plan to go for a two-week trip home, you need to make sure you get the visa interview scheduled around the beginning of your stay, so that you get your visa before you leave. Each visa interview costs about $160, plus fees to travel to the consulate and other costs (including a SEVIS fee for those on F and J visas so that the Department of Homeland Security can run a criminal background check on you). And if for some reason your visa gets rejected, you have to cancel your plane ticket, apply again (with another month-long wait for the interview) and then get another plane ticket for when you expect your new visa to arrive. To avoid this, some people make short trips to Canada or Mexico to get their visas renewed (this might sometimes necessitate getting a tourist visa to that country, but the additional cost might still be worthwhile to counter the uncertainty).

Compared to the substantially greater stakes involved with immigration restrictions, the trivial inconveniences faced by a (on average) relatively well-off subset pale in importance. But even if the direct costs to participants are relatively small, the question arises: what brought such a seemingly twisted and convoluted system into place? What purpose does it serve?

The history of the visa/authorized stay distinction

The idea that different standards apply to authorized stay in the United States and authorized entry into the United States dates back to the 19th century. At the time, border controls existed in some form, particularly at sea ports (the land borders with Mexico and Canada were largely uncontrolled). Inspectors at ports of entry were granted authority in some states to turn back migrants they considered dangerous, and this authority was formally recognized by the US Federal Government with the Immigration Act of 1882. Interior enforcement by federal authorities didn’t really exist until much later (the idea of Alien Registration, that would ultimately give rise to the Green Card, was only introduced in 1940), and local enforcement was erratic.

The first federal law I can find that explicitly codified the distinction between stay and re-entry was the Scott Act of 1888. As per Wikipedia:

The Scott Act (1888) was a United States law that prohibited Chinese laborers abroad or who planned future travels from returning. Its main author was William Lawrence Scott of Pennsylvania. It was introduced to expand upon the Chinese Exclusion Act passed in 1882. This left an estimated 20,000-30,000 Chinese outside the United States at the time stranded.

For a more detailed description of the history of the law, see Harpweek.

Returning to the question

What national interest is served by not allowing people to renew their visas in the US, but allowing them to stay on for as long as they want (while in valid status) without a valid visa?

In other words, why does the very act of leaving the United States mean that a person is required to pass additional checks in order to resume physical presence in the United States? This is all the more puzzling, since one of the things a non-immigrant visa applicant needs to demonstrate is strong ties to the homeland. What better way to demonstrate such strong ties than to make frequent trips home? Why should those who do demonstrate such ties — by going back home — have to go through an additional stage of verification? If anything, those who don’t make trips back home are the ones who should need to pass additional checks for non-immigrant intent. But the way things currently work, there is no need to demonstrate non-immigrant intent except during the visa application.

Here are some possible reasons:

  • Territorialism: Requiring people to go through this process while in the US — with the threat of deportation if they fail to pass — runs into the same sort of moral opposition as efforts to forcefully deport people not currently in authorized status. People physically in the US have more legal rights and a better ability to organize and protect themselves. If somebody goes back home for a family event and then is blocked by CBP from returning to the US, that is considered a lot less outrageous than if the ICE turned up at the person’s door and forcefully put him on a plane back home.
  • Practicality: It’s just impractical to keep track of all the people already within the physical boundaries of the United States and interview them and make sure that they continue to have the required non-immigrant intent. It also wouldn’t be practical to deport them if they did fail the interview. There is already an infrastructure to control entry, so it’s quite practical to try to restrict re-entry. Incidentally, there are parallels between this practicality argument and the use of routine traffic stops as a pretext for doing drug searches of vehicles. In both cases, a not-very-closely-related pretext is being used for an entirely different goal. Practicality is what led to the original emergence of the distinction in the 19th century, as in the Scott Act discussed above.
  • Preventing organized terrorist attacks: While this doesn’t seem like a very rational reason (given that terrorism is so rare relative to the number of non-immigrant visas) immigration laws are often designed to counter extreme cases. One can build a plausible case that frequent trips between the US and other countries are necessary to plan complex terrorist attacks. Somebody studying in the US who goes back home may get radicalized and then go back to the US with nefarious intent. It’s possible that the return trip helps the person share information gained in the US with associates back home.
  • Family complications: It could be argued that the act of returning home could be a sign that the person is planning to get more family to move with him or her to the US. For instance, a person on a student visa may return home to get married, and then want the spouse to move to the US too (there are visas for spouses of students). It could be that the return home means the student’s family is facing some problems, such as illness, and that this makes the student’s finances more precarious, and therefore makes the student more of a risk to the welfare state.
  • Saving greenhouse gases: Okay, this is a little fancy, but you could argue that insofar as visa complications discourage travel, they save greenhouse gases and help the environment. But then there are also people who make additional trips to renew their visas. I don’t know how the two balance each other out.

Recommendations

I don’t think any of the reasons above, even if they explain the status quo, really justify it. Here are my proposals for progressively ambitious changes:

  1. Allow people to renew their visa in the United States as long as they are in authorized status, without having to go through another visa interview. That saves time and money for the applicant and reduces the workload of consulates, so that they can spend more time on new applicants. This was the goal of the White House petition I linked at the beginning of the post.
  2. Eliminate the do not intend to permanently immigrate to the United States check that in any case seems to be subject to a very wide range of interpretations and creates a great degree of consular discretion. Just restrict the question under consideration to whether the authorization issued is legitimate, and whether the applicant committed application fraud or has a criminal record. Incidentally, as Chiappari and Paparelli note, the SKIL bill, that didn’t make much progress, aimed to do this for student visas. Chiappari and Paparelli:

    The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.

  3. In the longer term, get rid of the visa interview entirely except for cases where there are problems with the paperwork or the consular officers have reasonable grounds to believe the applicant poses a threat of some sort. As long as the authorization documents are in order (something that does not require an interview to verify) just issue the visa. In the even longer term, move to something like the Red Card scheme: private providers of visas who are held liable for any fraudulent visas they issue.

Of course, I ideally want open borders for the whole world, which, as Joel says, is fairer and simpler. In the short term, however, the (progressively more ambitious) changes I propose seem like they will reduce unnecessary queueing and crowding at consular offices, and reduce travel optimization that students and temporary workers need to engage in in order to not get locked out of the United States.

Restrictionists might make similar observations about the status quo but come up with different recommendations. For instance, a restrictionist reading this might want to eviscerate the distinction between visa and authorized stay by requiring people to leave the country as soon as their visa expires, and requiring them to leave the country and re-apply for a visa whenever there is a change of status (say, from student to temporary worker status). This restrictionist solution would be more intellectually consistent and less confusing, but it would make life worse for everybody (restrictionists might further retort that we should just do away with many visa categories or reduce quotas significantly, thereby saving people the bureaucratic pain). I should say that confusing and contradictory as the status quo is, I prefer it to this restrictionist solution. And this sort of reasoning is perhaps why the status quo exists as it does: even if it doesn’t make logical sense, different interest groups prevent it from moving too far in the direction of greater consistency.

As this post, and hopefully many others, will repeatedly drive home, the system of immigration and travel laws as it currently exists is not intended to serve the interests and goals of prospective immigrants. Rather, its goal is to protect the national interest, i.e., to be citizenist. But since the citizens these laws are intended to serve aren’t really affected by the laws, and in most cases don’t understand them at all, it’s usually not the case that the laws come even close to optimizing citizen welfare. First off, they are often based on flawed economic and social science reasoning that gives more weight to concerns about protecting jobs, reducing the “welfare magnet” nature of immigration, and minimizing terrorist attacks, than somebody with a clear understanding of the issues would give. Second, the bureaucratic codifications of the laws have since been modified by various pressure groups (including some pressure groups that have the visa applicants’ interests at heart, some that seek to protect natives from competition, some that seek to benefit employers who want to hire from abroad, some that seek to protect the jobs of those involved in immigration enforcement). What we get is a hodgepodge that somehow seems to work, but doesn’t really have a rational basis.

PS: An early version of my thoughts on the subject, and the responses of some others, can be seen in this Open Borders Action Group post.

Featured image credit: University of Chicago page on visa vs status