USCIS Expands Flexibilities for Certain F-1 Students Affected by OPT Delays

The U.S. Citizenship and Immigration Services (USCIS) has signed a settlement agreement with a group of F-1 students affected by long delays in processing of optional practical training (OPT) and 24-month STEM OPT extension applications. The settlement agreement potentially benefits the entire class of OPT and STEM OPT applicants. This development comes on the heels of the earlier announcement of certain flexibilities that were implemented by the USCIS since February 2021, as discussed in the MurthyDotCom NewsBrief, USCIS Offers Relief to Certain F-1 OPT Applicants (04.Mar.2021). The new concessions are made by the USCIS as part of the settlement reached on July 23, 2021, and further expand and extend the flexibilities that have been in place since February 2021.

Extension of the Period for Refiling Following Rejection

The USCIS has extended the period for refiling rejected, but timely filed, OPT/STEM OPT applications on or after October 1, 2020, through October 31, 2021. The USCIS will accept refiled applications filed through November 30, 2021, and will treat these as if they were filed on the original received date.

To satisfy the requirements for re-filing of the OPT/STEM OPT application, the F-1 student must only show that the original application was timely filed and that the USCIS rejected it. It is recommended that the application be filed in its original form, including the original form I-20 with the OPT recommendation, but with any noted deficiencies properly corrected (e.g. missing signature, incorrect fee amount, etc).

Extension of 14-month OPT Period

The USCIS will approve OPT for the full duration of 12 months or the full duration of the recommendation made by the designated school official (DSO), even if the 14-month period for completion of OPT would have expired during the validity of the employment authorization document (EAD). This flexibility has been carried over from the February 26, 2021, USCIS announcement, but will now apply to all OPT applications that have been filed between October 1, 2020, and October 31, 2021, inclusive of both dates.

RFEs for Missing or Deficient Signatures

The USCIS will continue issuing RFEs, rather than denials, for OPT and STEM OPT applications accepted by the lockbox, but with missing or deficient signatures.

Submission of OPT Application up to 120 Days before the End of Program

One of the new flexibilities outlined in the USCIS settlement is a provision allowing F-1 applicants to file their OPT applications up to 120 days before the completion date of their programs of study, when it is generally only up to 90 days before, per the regulatory requirement. This flexibility also applies to applications received no later than October 31, 2021.

It is advisable, therefore, for students who complete their study within the next six months to take advantage of this flexibility, which significantly expands the overall filing window and affords many applicants with an opportunity to join the workforce shortly after graduating.

Conclusion

The USCIS has indicated that it will consider all affected F-1 students who will ultimately have their OPT and STEM OPT applications approved to be in valid status as of the date the application was originally filed and until 60 days after the expiration of the EAD. Hopefully, the flexibilities provided by the USCIS for eligible OPT/STEM OPT applicants will ameliorate the effect of long processing delays that many F-1 students have been experiencing. It is advisable for those who think that they may benefit from the extension of the flexibilities to consult with a knowledgeable immigration attorney about their individual circumstances.

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