Jul 30 2021

USCIS Extends Accommodations to F-1 Optional Practical Training Applicants Affected by Processing Delays

United States

At a glance

  • As a result of a recent court order, USCIS is extending some flexibilities to F-1 students seeking Optional Practical Training (OPT) who have been negatively affected by agency delays in receipting and processing Form I-765, Employment Authorization Document (EAD) applications. The flexibilities initially only applied to filings received by May 1, 2021 and now apply to those received by October 31.
  • F-1 students whose OPT applications were received between October 1, 2020 and October 31, 2021, will be permitted to complete their 12-month practical training period within 14 months of the date of their Form I-765 approval, instead of 14 months from the date of their F-1 program completion.
  • F-1 students who timely filed Form I-765 but had their applications rejected due to the lengthy USCIS delays may re-file by November 30, 2021, as long as USCIS received the initial filing between October 1, 2020 and October 31, 2021.
  • The court order also includes an important new accommodation, that applications received through October 31, 2021 may be filed up to 120 days before the F-1 program end date, extended from 90 days under the standard rules.

The issue

U.S. Citizenship and Immigration Services (USCIS) is extending certain flexibilities for F-1 students seeking Optional Practical Training (OPT) who file Form I-765 work authorization applications between October 1, 2020 and October 31, 2021, inclusive. The extended accommodations come in response to recent litigation challenging the significant delays in the issuance of receipt notices for F-1 EAD applications, which in some instances have led to shortened or loss of OPT periods and improper rejections. USCIS has acknowledged the receipt delays and has cited COVID-19 public health measures, an increase in filings, and postal delays as reasons for the development.  The agency implemented some interim accommodations in late February, and has now extended and expanded the accommodations in response to a settlement agreement in a Southern District of Ohio case Li v. USCIS (2:21-cv-677).

USCIS accommodations

USCIS will apply the following relaxed policies to F-1 OPT applications received between October 1, 2020 and October 31, 2021 (inclusive):

  • 14-month OPT period: F-1 students will be permitted to complete their post-completion 12-month OPT period within 14 months of their EAD approval date, rather than within 14 months of their F-1 program end date under the standard rules. Those who receive an OPT approval for less than the full amount of time they are entitled to under the relaxed policy may request a correction from USCIS.
  • Refiling after rejection: Applicants whose timely filed F-1 OPT and STEM OPT applications were rejected will be permitted to refile their applications. These applications must be received by November 30, 2021 in order to be treated as filed on the original date.
  • RFE for missing or deficient signature: USCIS will issue a request for evidence instead of denying F-1 OPT applications that contain missing or deficient signatures if they were received by the agency during the relevant timeframe. However, the USCIS policy permitting rejection of applications with missing or deficient signatures remains in place, so applications should be checked for sufficient signatures prior to filing.

 

In addition, pursuant to the recent court order, OPT applications received by USCIS through October 31, 2021 may be filed up to 120 days before the F-1 program end date, extended from 90 days under the standard rules.

What it means

As a result of the extended USCIS measures, F-1 students applying for OPT-based EADs between October 1, 2020 and October 31, 2021 should receive a full 12 months of work authorization and will have recourse from improperly rejected Form I-765 applications. They will also be able to submit OPT applications earlier than normal due to the new accommodation. Applicants are reminded that these flexibilities do not change the requirements for F-1 students to submit timely and properly completed EAD applications.

 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.