September 26, 2022

Volume XII, Number 269

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September 23, 2022

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Settlement Reached with USCIS in Class Action Suit Relating to OPT Processing Delays

USCIS recently settled a class action lawsuit regarding lengthy delays in processing of Employment Authorization Document (EAD) applications for individuals in F-1 student status. The settlement is welcome news to F-1 students who have been delayed in their ability to begin work following graduation due to long delays at USCIS.

Background

A class action lawsuit, Li v. USCIS, filed in February 2021 against the U.S. Citizenship and Immigration Services (USCIS) has been settled. The lawsuit alleged an impermissible delay in processing employment authorization document applications for post-graduate optional practical training (OPT) as well as STEM Extension OPT. Eighteen named F-1 students who had applied or planned to apply for employment authorization asserted that the delay in processing caused them and other similarly situated students irreparable harm. This harm included potentially being subject to removal from the U.S. when the grace period following their education program ended as well as losing job offers, income, health insurance, and opportunities to register for the H-1B lottery.

Details of the USCIS Settlement

On July 23, 2021, the District Court for the Southern District of Ohio Eastern Division issued a consent order, which outlines the terms of agreement between the parties. Key USCIS concessions agreed to in the settlement include:

  • For applications for OPT and STEM extensions filed between October 1, 2020, through October 31, 2021, USCIS commits to processing within 120 days. Processing means that the application will be approved, denied or a Request for Evidence issued within 120 days of filing.

  • The interim relief announced on February 26, 2021, continues for all cases filed between October 1, 2020, and October 31, 2021. This includes:

    • A full 12 months of OPT irrespective of the requirement OPT be completed within 14 months of graduation.

    • OPT will be granted for the full period recommended by the DSO, irrespective of the time of adjudication.

    • If an EAD has been issued for less than these time periods, USCIS will issue a corrected EAD upon request.

    • Rejected applications which were originally submitted on time can be resubmitted and will be processed as if received on the original date (the full period of OPT will be granted, but the original I-20 will be accepted without the requirement of a new I-20).

    • Requests for Evidence will be issued instead of a denial for missing or deficient signatures.

    • OPT applications can be submitted up to 120 days (instead of 90) before completion of the program until October 31, 2021.

In addition to the 18 named plaintiffs, this settlement will offer relief to any similarly situated students, who are undoubtedly greatly relieved by this settlement.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 222
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About this Author

Lindsey H. Steinberg Immigration Attorney Mintz Levin Law Firm
Associate

Lindsey focuses her practice on complex corporate immigration matters. She has significant experience handling work-related visas, including both nonimmigrant and immigrant applications and petitions; responding to federal agency audits and requests for evidence; and counseling employers on best practices related to immigration requirements, including PERM supervised recruitment.

Prior to joining Mintz, Lindsey was a business immigration associate with an immigration law firm based in Worcester, Massachusetts, where she prepared and filed H-1B, O-1, E-3, and TN visa applications and...

617.348.1804
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