April 19, 2021

Volume XI, Number 109

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USCIS Offers Flexibility for OPT Applications

The ability of foreign students in F-1 status to participate in post-completion Optional Practical Training (“OPT”) in their fields of study is an important aspect of their education–an opportunity that draws many foreign students to U.S. colleges and universities. So when USCIS receipting delays were diminishing these opportunities, foreign students, universities, and advocacy groups reached out to USCIS for a solution. In response, USCIS has announced some flexibility regarding OPT applications received on or after October 1, 2020, through May 1, 2021, inclusive.

The 12 Months Within 14 Months Rule

F-1 students can generally participate in an initial 12-month period of OPT employment after graduating, but that period must be completed within 14 months of the end of their degree programs. Because receipt notice issuance (and subsequent processing) of OPT employment authorization applications (Forms I-765) has been so delayed, some students were missing out on the full 12-month period. To remediate this situation, USCIS will allow the 14-month timeframe to begin on the date that the Form I-765 is approved.

Any F-1 students who receive approvals for less than the time requested because of the 14-month limitation may request a correction of the Employment Authorization Document (EAD) due to USCIS error and a new EAD will be issued.

Timely Filing Rules

Post-completion OPT employment applications must be filed within 30 days of the OPT recommendation being entered into SEVIS and within 60 days of degree completion. STEM OPT extensions must be filed within 60 days of the recommendation’s entry into SEVIS. Due to delays, applicants whose applications were ultimately rejected have not been able to timely refile. To accommodate refilings, until May 31, 2021, USCIS will accept refiled Forms I-765 for OPT or STEM OPT employment authorization as if filed on the original timely filing date if the original application was received on or after October 1, 2020, through May 1, 2021. A new Form I-20 will not be required.

Completing Form I-9 Employment Eligibility Verifications

When an applicant timely files for a STEM OPT extension, the applicant’s current EAD is automatically extended for 180 days. Luckily, the delay in issuing receipt notices does not affect the employer’s ability to update an employee’s Form I-9 Employment Verification in this situation. The applicant only needs to provide the expiring or expired one-year OPT EAD and the most recent Form I-20 with the STEM two-year extension endorsement. Even if the applicant, while still waiting for a receipt notice, wants to start a new job, for I-9 purposes the employee can again provide the expired EAD with the STEM extension endorsement and the new employer’s information. As long as the employer is not aware of any deficiency in the Form I-765 filing, accepting these documents for I-9 purposes should not be an issue. If the employer does learn of such deficiency, it would be advisable to consult with an experienced attorney before taking any action.

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Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 67
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About this Author

Associate

Brian Shyr is an Associate in the Washington, D.C. Region office of Jackson Lewis P.C. His practice focuses on representing employers in business immigration matters, including obtaining employment-based visas and permanent residence for foreign national employees. While attending law school, Mr. Shyr represented individual clients in removal proceedings and organizational clients in research projects as part of the Immigrant Justice Clinic. He also served as a clerk in the Department of Justice’s Office of Immigration Litigation.

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