Motions Filed by Murthy Law Firm for F-1 OPTs in Unpaid Internships

In October 2013, the Nebraska Service Center (NSC) of the U.S. Citizenship and Immigration Services (USCIS) unexpectedly began denying optional practical training (OPT) STEM extension applications submitted by F-1 students who had served as unpaid interns during their initial 12-month stays in OPT. Two foreign nationals who had been denied OPT extensions based on the NSC’s new interpretation of “employment” while in F-1 OPT status, requested the Murthy Law Firm to help them fight these denials. The Murthy Law Firm filed motions to reopen / reconsider (MTRs) on behalf of these individuals, resulting in approvals of both cases. The two clients involved in these cases have graciously given the Murthy Law Firm express permission to publish summaries of their successes on MurthyDotCom.

Background: SEVP Guidance of Unpaid Work as “Employment” Reversed by USCIS

In April 2008, the U.S. Department of Homeland Security (DHS) issued regulations that prohibit a foreign national from accruing more than 90 days of unemployment during the initial twelve (12) month period of F-1 OPT.  However, the USCIS failed to define the types of activities that qualified as being “employment” for OPT purposes. The Student and Exchange Visitor Program (SEVP) sought to address this matter by issuing policy guidance. This guidance specified that volunteer work and unpaid internships related to the individual’s degree are acceptable forms of employment while on the twelve month OPT.

Until recently, the USCIS, including the NSC, generally followed the SEVP interpretation of employment under OPT. In October 2013, however, reports surfaced that the NSC suddenly and without explanation reversed its earlier interpretation, counting time spent in unpaid or volunteer positions toward the 90-day cap on unemployment. A more detailed discussion of this situation is provided in the MurthyDotCom NewsBrief, Unpaid Internships on F-1 OPT Considered ‘Unemployment’ (25.Nov.2013).

USCIS Asserts F-1 OPT and EAD Denials for Unpaid Internships Were “Proper”

The NSC had denied two F-1 students’ OPT STEM extensions for having worked beyond the 90 days on unpaid internships or as volunteers. These students contacted the Murthy Law Firm to assist them with challenging the denials. The Murthy Law Firm first tried to resolve both cases by contacting the NSC directly, requesting it to reverse the denials pursuant to service motions. A service motion is a motion initiated by a USCIS officer, as opposed to the applicant, and can sometimes be used by the USCIS to quickly correct a relatively straightforward mistake. The NSC declined to pursue service motions for these cases, insisting instead that these denials were proper.

Murthy’s MTRs Approved, Resulting in OPT Extensions

The attorneys at the Murthy Law Firm respectfully disagreed with the NSC’s assessment, and responded by filing MTRs for both cases. These MTRs included detailed explanations of the applicable laws and regulations, and referenced the SEVP policy guidance that lists volunteer work and unpaid internships as acceptable forms of OPT employment. By January 2014, the NSC had approved both motions, resulting in the OPT extension requests being granted.

Conclusion

Based on the results in these students’ cases, there is reason to believe the NSC has retreated from the position that volunteering and unpaid internships are not valid forms of employment for OPT purposes. While this story has a happy ending, it illustrates just how quickly substantive changes can occur in immigration law, and the variety of options that may be available to challenge the government. MurthyDotCom will continue to closely track this matter, providing updates if new information is made available.

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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.
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