Foreign Students, OPT, and Innovation


A recent case out of Washington D.C. has raised the interest for people in the U.S. Immigration field and for international students. In the case of Washington Alliance of Technology Works (“WashTech”) v. U.S. Department of Homeland Security (“DHS”), WashTech sued DHS over the approval of the optional practical training program (“OPT”).

The OPT Program allows students who entered the United States under a student visa to obtain 12 month employment authorization in their field of study upon completion of a degree program. In 2008, the DHS allowed students in the field of Science, Technology, Engineering, and Mathematics (STEM) to extend their OPT for an additional 17 months. This allowed STEM graduates the opportunity to live and work in the United States for a total of 29 months. President Obama has recently issued an executive order to expand the number of degree programs where students are eligible for the 17 month OPT extension.

In the lawsuit, WashTech alleges that the OPT program violates U.S. laws for the issuance of employment visa for foreign nationals. They argue that the OPT program injures its members through increase competition for STEM jobs. WashTech stated that three of its members specifically applied for multiple employment positions which ultimately went to foreign students with OPT. DHS filed a motion to dismiss the lawsuit because WashTech did not prove actual harm. The court has allowed the case to proceed because WashTech established actual harm to three of its members.

The case will proceed and it may take years before a final decision is made. However, the fear of foreign employment competition is a long standing issue that is part of America’s history and present. The quota limits and certification requirements make employment based immigration and non-immigrant visas time consuming and expensive with an uncertain chance of approval.

In this age of global competition, there is fear that the United States has lost its competitive edge and is economically stagnating. However, closing up the United States to high skilled labor to reduce internal competition is the wrong thing to do. The OPT program allows recently U.S. educated professionals to work in the United States for their own benefit and also for the benefit of the U.S. economy. And those who are employed on the OPT program are required to pay U.S. income tax.

The greatest asset for innovation are educated minds and the United States has some of the best Universities in the World. U.S. educated foreign students should be allowed to remain and work in the United States. In 2006, the World Intellectual Property Organization stated about a quarter of patents from the United States had a minimum of one non-citizen inventor. This does not take into account that about 20% of the patents recorded in the United States are from naturalized United States citizens. Foreign born nationals in the United States contributed multiple times their numbers to generating patents and new technologies for U.S. industry.

It is also important to not look at high skilled U.S. educated foreign students as only employees. They are potential future entrepreneurs and business owners. Immigrants are twice as likely start a business than U.S. born Americans. According to the Partnership for a New American Economy, Immigrant owned businesses employ about one in ten workers in the United States. A quarter of technology and engineering startups and about 40% of Silicon Valley startups have a foreign born owner.

Those who want to restrict the number of foreign workers into the United States view the economy as a shrinking pie where each additional foreign worker would displace a U.S. worker. If we were to follow their immigration policy, the United States economy would stagnate and shrink.

If the U.S. economy wants to grow, we should remove barriers to innovation and business growth. The first priority is to allow risk taking and educated foreign workers to establish themselves in the United States. The United States is blessed with the best universities in the world that attract the best minds that want to study here. When they graduate, we should let them stay in the United States to work. We need to protect and expand the OPT program to provide these high skilled workers a change to establish themselves.

About The Author

Mr. Robert R. Virasin serves as a legal manager of Siam Legal International. A graduate of the University of California, Los Angeles with a Bachelor Degree in Political Science, Mr. Virasin completed his Juris Doctorate at the University of Houston and a Masters of Laws (International Business) from Chulalongkorn University, Bangkok. Mr. Virasin is a licensed attorney in the state of Texas with over 15 years of legal experience. Mr. Virasin currently resides in Bangkok, Thailand.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.