Dropping the Ball

Sometimes damage is done when federal agencies simply fail to act in a timely fashion, and, in this case, it’s the U.S. Citizenship and Immigration Services, write Sarah Spreitzer and Terry W. Hartle.

March 4, 2021
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Most campus officials are by now only too familiar with the challenges involved in obtaining permission for international students to get a visa to study at a college or university in the United States.

It’s no secret that a number of misguided policies imposed by the Trump administration -- from the so-called Muslim travel ban to poorly thought out and badly implemented changes in visa programs and processing -- have undermined America’s reputation as the destination of choice for the world’s most talented students. There have even been cases where students with a fully valid visa have arrived at a U.S. port of entry and have been immediately sent back to their home country for reasons that are opaque, at best, and usually with no recourse.

But the problem is not limited to the students who are denied a visa or turned away at the border. Sometimes the damage is done when federal agencies simply fail to act in a timely fashion. In this case, it’s the U.S. Citizenship and Immigration Services (USCIS), a part of the Department of Homeland Security. But the issues involved are ones the agency can and should be able to rectify during the early stages of the Biden administration.

Consider a student we will call Maria. We will not use her real name to protect her privacy, but she is from Latin America and is fluent in Spanish and English. After teaching school for several years, she received a student visa to study international relations at an American university. At the end of her education, she arranged a one-year internship at a nonprofit organization in the United States that serves refugees. Maria hoped to spend a year gaining practical experience so that she could be in a better position to use her education and training when she returns to her home country.

Maria applied for optional practical training (OPT), which grants the authorization to work for one to three years, either as a student or a recent graduate from an American institution of higher education. At the end of the OPT term, most individuals return to their home countries as highly educated and experienced professionals. Some stay on for an additional time under a different visa process, called H-1B, that allows American companies to hire a limited number of foreign workers with special skills.

OPT is a very popular and widely used federal program. In 2019, almost 250,000 people participated in it. Colleges and universities also value OPT because it is a powerful lure that encourages students to study in the United States. The business community makes extensive use of OPT to spot talented individuals. In 2019, as part of its goal to expand so-called merit-based immigration, the Trump administration convened a meeting involving five cabinet agencies and several White House offices to discuss ways to enhance OPT.

But over time, as interest in thoughtful and rational policy regarding foreign students waned, so too did the interest in carrying out effective OPT policies. Indeed, before leaving office, the Trump administration toyed with (although it eventually dropped) ideas to make it much harder for individuals to obtain OPT authorization and participate in the program.

Meanwhile, as any pretense of having a cohesive system for implementing immigration rules and policies went by the wayside, processing times for OPT also increased. An international student can only apply for OPT three months before his or her employment start date. Foreign students invariably apply for the program as soon as possible, but processing delays began to creep into the process as early as 2019.

Today, it takes USCIS on average around five months to process an OPT application. This means that the average student is faced with a dire choice: leave the United States and return home and wait to see if OPT is granted, possibly missing an employment start date and taking on the cost of travel, or remain in this country, possibly falling out of status and being subject to immediate (and likely permanent) deportation. It’s a perfect catch-22. Somewhere, Joseph Heller is smiling.

The problem is widespread. At one major research university, more than 100 international students are caught up in this dilemma.

Relieving the Catch-22

That brings us back to Maria. She submitted her application 90 days in advance but never received notice that the application had been received, despite repeated attempts to find out. And the Citizenship and Immigration Services ombudsman never acknowledged her request for help. Out of concern that the agency did not receive the first application, Maria then submitted a second application (with another check for the application fee of $410, of course). That application was never acknowledged, either. Maria has until early this month before her grace period for remaining in the country expires.

In a January update, USCIS admitted it has a problem and promised to take steps to clear out the backlog. The good news is that, on Feb. 18, USCIS followed up with a message granting some flexibility for STEM OPT applicants, and then, on Feb. 26, granted other changes designed to help applicants, including being able to refile in a more timely manner if their original applications were rejected.

USCIS deserves credit for taking these steps. But every day that goes by without more aggressive and holistic steps to address the backlog, or to relieve the catch-22 it has created, is another day -- and more highly trained human resources -- that our nation is throwing away.

There are still thousands of OPT applicants caught in the backlog, and other problems that need to be corrected to ensure that the program runs as intended. What else needs to happen?

USCIS should immediately grant conditional approval for applications that have been delayed more than 90 days. And if the agency acknowledges that it needs five months to process applications, it should allow students to apply six months ahead of time. That would not require congressional action -- the agency can take these steps on its own and should do so immediately.

It’s not just overt negative actions -- like sending valid visa holders home when they arrive at a U.S. port of entry -- that have undermined the ability and desire of international students to study here. Sometimes it’s nothing more than a government agency that fails to effectively administer existing policies. But having publicly acknowledged the problem, USCIS has an affirmative obligation to take prompt, strong and meaningful steps to address its failures.

Meanwhile, Maria can hear the clock ticking louder every day.


Sarah Spreitzer is director of government relations at the American Council on Education. Terry W. Hartle is senior vice president of government relations and public affairs at ACE.

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