After an initial year on OPT, I applied for the OPT STEM extension. I have just received a denial …

… decision from the USCIS, stating that I exceeded the maximum 90-day unemployment limitation because I worked for several months as an unpaid intern. I was very surprised to receive this decision because my DSO assured me that unpaid internship is one of the permissible types of OPT employment. Is USCIS right in denying my request?

Answer:

The situation you describe appears to be a recent adjudication trend, which is a sudden change in the position the USCIS previously followed. Unfortunately, despite clear guidance provided by SEVP that lists unpaid internship and volunteer work as permissible OPT employment, the USCIS has recently stated that such unpaid employment is not permissible for OPT purposes. This is a direct contradiction of its previous position, where USCIS considered such employment to be satisfying OPT requirements. You should discuss possible courses of action with a knowledgeable immigration attorney to evaluate your chances. Possible courses of action may include filing a motion to reconsider / reopen, leaving the United States, applying for reinstatement based on admission to a new program, filing a federal lawsuit, etc. (11.Nov.2013)

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