USCIS Enforces 30-Day OPT Filing Rule
The U.S. Citizenship and Immigration Services (USCIS) has begun to strictly enforce the requirement to file the Optional Practical Training (OPT) application within 30 days of the date the Designated School Official (DSO) enters the OPT recommendation for a student into the Student and Exchange Visitor Information System (SEVIS). The Murthy Law Firm, has recently received an influx of calls from students with OPT denials due to the filing of their OPT applications with the I-20 form that contains a recommendation outside of the required 30 days. An explanation of the rule and its interpretation by the USCIS is provided here for the benefit of our readers.
USCIS Strict Enforcement on the 30-Day Filing Rule
The requirement that the OPT application must be filed within 30 days after the DSO's recommendation is made and recorded in the student's SEVIS record is not a new regulation. However, the USCIS has not consistently enforced this regulation. On September 13, 2012, the Nebraska Service Center (NSC) held a NSC Stakeholder Teleconference during which an NSC representative explained that "[i]n doing a normal course of review of policies and procedures, the NSC discovered an inconsistent approach both internally and across the centers in applying the regulations." Therefore, according to the USCIS, the regulation containing the 30-day filing requirement is now being consistently enforced by the USCIS.
As part of implementing uniform enforcement of this regulation, the NSC representative added that the applications that do not comply with this requirement should be denied without a request for evidence (RFE). The reason for this is that there is no way to overcome the problem by submitting additional evidence - making an RFE pointless. Instead, by denying the application outright, it is hoped that the students may receive the denial in time to submit a new OPT application that complies with all regulatory requirements, including the 30-day submission rule. This policy is intended to be beneficial, and to allow for such OPT applications to be denied within a relatively short period of time, so that affected students may still be able to reapply for and receive the OPT.
Deadlines for Filing OPT Application
In addition to the requirement that the OPT application be submitted within 30 days after the recommendation is entered into the student's SEVIS record, it is important to understand and comply with other filing requirements related to timing. With regard to post-completion OPT, the students have a fairly substantial filing window. Students may file for post-completion OPT up to 90 days before the academic program end date, but no later than 60 days after the program end date. Students should be mindful of both the general filing period and the 30-day deadline for filing following the Designated School Official's (DSO's) entry of recommendation. This means that the student should not only make sure that the OPT application is filed within the general filing timeframe, but that it is within 30 days of the OPT recommendation of the DSO, as recorded in the student's SEVIS record.
New OPT Application can be Problematic After Denial
While information on the 30-day filing rule, provided by the NSC during the September 13, 2012 Stakeholder Teleconference, appears to indicate that F-1 students whose OPT applications were denied may still have sufficient time to re-file their applications, many students face obstacles to the re-filing. Even when denials are received in time to allow for re-filing, there may be problems obtaining new supporting I-20s. Based on reports from students in this situation and communications with DSOs, the denial decision entered by the USCIS into the SEVIS record prevents DSOs from issuing new I-20s with the new OPT recommendations. DSOs are unable to change denial information in the SEVIS records directly. Thus, they must contact the SEVP HelpDesk with the request to perform a "data fix" to "unlock" the record so that new I-20s can be generated.
These steps may present a problem for the affected students as such data fixes may take significant time, and take the case beyond the allowed general filing deadline. In some cases, in response to the data fix request, SEVP indicated to the DSO that the SEVIS record can only be unlocked if there is an RFE in the case issued by the USCIS. This is even more problematic because an RFE cannot be issued on a case that has been denied and closed unless it is reopened first.
Until recently, the USCIS was not strictly enforcing the 30-day filing deadline for OPT applications. Therefore, many students and even DSOs are not familiar with this requirement and may make the mistake of filing OPT applications more than 30 days after the date of the OPT recommendation. It is extremely important that students become familiar with these filing requirements and all filing deadlines. A seeming disconnect between USCIS efforts to facilitate the opportunity for re-filing, and the inability of the DSO to generate the I-20 needed for a second filing, makes it all the more important to comply with the requirements at the initial filing stage. Students who are nearing the end of their course of study and who would like to apply for OPT, should plan ahead and familiarize themselves with these requirements so they can submit proper and timely OPT applications. Students with questions about OPT and related matters may wish to consult a knowledgeable attorney. We at the Murthy Law Firm have a former DSO and other experienced attorneys on our team who may be able to provide guidance and options in certain cases.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.