Four AAO Decisions on Students of Fake OPT Employers (2022–2026)
In one sentence
A fake employer does not automatically mean the student committed fraud. USCIS looks at whether the student knew at the time and what the student said.
All four are AAO decisions on appeals of Form I-601 (waiver of inadmissibility) filed when the students applied for green cards. In each, the student's former OPT employer was later found to be a shell company, and a USCIS field office concluded on that basis that the student had committed fraud or willful misrepresentation (INA 212(a)(6)(C)(i)). The AAO is USCIS's internal administrative appeals office; these are non-precedent decisions that bind only the individual case.
The four decisions side by side
| Decision | What the student did | AAO outcome |
|---|---|---|
| In Re: 36777223 (2025-05-12) | Before applying, checked that the company was registered with the California Secretary of State, listed in E-Verify, and at a real address; after joining was never given work and found no one at the office, so found another job and informed her DSO | No willful misrepresentation; not inadmissible |
| In Re: 40127441 (2026-05-21) | Never actually worked for the company, yet described tasks she had completed for it on her DS-160 | Inadmissibility upheld; appeal dismissed |
| In Re: 22758864 (2022-10-14) | Admitted at interview that she paid someone for a false employment document | Inadmissible, but the waiver was granted as a matter of discretion, given extreme hardship to her spouse and other favorable factors |
| In Re: 30727065 (2024-04-15) | Did not contest inadmissibility | Hardship to her spouse did not rise to "extreme hardship"; waiver denied |
Why the 2025 decision came out the other way
The AAO's test is willfulness — making a statement while knowing it is false. It looks at the student's situation at the time:
The record does not demonstrate that the Applicant deliberately misstated her employment with [the company] on her application with knowledge of its falsity. To the contrary, considering the circumstances at the time, the record shows the Applicant believed her internship with [the company] was qualifying OPT.
The decision also notes that an unpaid internship is not in itself a misrepresentation: OPT can be unpaid, as long as it does not violate labor laws and is related to the field of study:
A student may work as a volunteer or unpaid intern for OPT, as long as this practice does not violate any labor laws, and the employment is related to the program of study.
This applies only to regular OPT
STEM OPT rules are different. In Challa v. DHS (D.D.C. 2026), a student worked without pay during STEM OPT, which a customs officer found violated STEM OPT rules; because she did not disclose this on her H-1B visa application, she was found inadmissible at entry and placed in expedited removal.
What these decisions show
- A fake employer does not necessarily make the student liable. A student who can show she verified the employer at the time, and handled the problem honestly once she found it, can come through.
- What the student writes down matters most. Describing work never done on a DS-160 cannot be undone, whether or not the OPT was approved at the time.
- Similar facts can end differently. Fu v. DHS in the Findream case closely resembles the 2025 decision, but what she was denied was an I-539 extension; the court held it could not review USCIS's finding, so no one ever re-examined whether she knew at the time.