Optional Practical Training (OPT) for F-1 students is intended to provide hands-on practical work experience in the U.S., complementary to the academic program. A foreign student in F status may work for 12 months post-graduation pursuant to OPT. An additional, one-time 17-month extension may be available if the student and employer meet certain qualifications.  After this period, the student must leave the U.S., re-enroll in a new program of study, or change into another status. If the student finds a willing employer-sponsor for future employment, the student can change to H-1B status.

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.

However, the TAL notes, this does not protect the employer from claims of national origin discrimination.  Any decision not to hire an individual based upon a future expiration date should be well-documented to protect against any future discrimination claims based on national origin.

For a copy of the TAL please contact a Jackson Lewis attorney.