December 7, 2021

Volume XI, Number 341

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December 06, 2021

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USCIS Provides Filing Flexibility for International Student OPT Work Authorization Applications Affected by Service Delays

On February 26, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it was offering additional flexibility for international students affected by the delayed issuance of receipt notices for Form I-765, Application for Employment Authorization. USCIS had previously acknowledged that it was “experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility,” and, in particular, “significant delays” for Form I-765 applications relating to F-1 students. As of March 11, 2021, all F-1 international student optional practical training (OPT) and science, technology, engineering, and mathematics (STEM) OPT applications are required to be filed at USCIS lockbox facilities. Delays at these facilities have caused delays in benefit issuance.

To provide a stopgap measure while USCIS works to resolve the issues affecting its processing capabilities, the agency announced the following policy changes for Form I-765 OPT applications received on or after October 1, 2020, through May 1, 2021:

  • “14-month OPT period flexibilities,” ensuring that students are able to obtain the full amount of OPT time requested (not to exceed 12 months);

  • “refiling following rejection,” treating refiled applications as filed on the original received dates; and

  • “missing or deficient signatures,” changing policy so Form I-765 applications received with missing or deficient signatures will be issued requests for evidence instead of denials.

14-Month OPT Period Flexibilities

Policy Announcement

Students in F-1 visa status “may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program[s].” OPT applicants can apply for this work authorization up to 90 days before and up to 60 days after completion of their degree programs. USCIS stated that due to the delays in processing applications at USCIS lockbox facilities, some applicants did not receive the full 12-month period of OPT work authorization within that 14-month period.

“To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT,” rather than the date of program completion, the agency announced. Effective February 26, 2021, USCIS is approving applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, that was submitted with the applications, even if the periods granted would give OPT validity beyond the 14-month window after program completion.

“F-1 students requesting [initial] post-completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested … due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the [employment authorization document (EAD)] due to USCIS error,” USCIS stated. USCIS will “issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.”

Employer Impact

USCIS’s acknowledgment of delays and the extension of this policy for filings through May 1, 2021, may mean that current delays will continue for the next several months, extending into the summer 2021 hiring season. If delays in EAD issuance do occur, this policy will at least ensure that students/employees are given the full validity of OPT requested. F-1 students on initial post-completion OPT must have received their EAD cards to commence employment.

Refiling Following Rejection

Policy Announcement

Applicants for OPT normally must file the Form I-765 during certain timeframes, as follows:

  • initial 12-month post-completion OPT applications must be filed no more than 90 days before and 60 days after the program completion date; and
  • STEM OPT 24-month renewal applications must be filed within 90 days of, but not after, initial OPT expiration.

USCIS stated that because of the lockbox delays, “some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.”

Acknowledging the hardships that such delayed rejections have imposed on F-1 student applicants, USCIS has now announced that it “will accept a refiled Form I-765 for OPT and STEM OPT,” crediting the original filing date, if the application meets the following requirements:

  • “[t]he original, timely filed application was received on or after October 1, 2020, through May 1, 2021, inclusive; and
  • USCIS subsequently rejected it.”

USCIS stated that refiled applications must be received by May 31, 2021, in order to qualify for review under this new policy.

“Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from [their designated school official], as long as they originally submitted an application” within the mandated timelines from the school official’s recommendation.

USCIS also stated that applicants refiling Form I-765 applications “should include a copy of the rejection notice to facilitate review of the case.”

Employer Impact

This additional flexibility provides individuals whose applications were rejected a new opportunity to obtain or renew OPT work authorization. For STEM OPT applicants, this policy change provides an opportunity for a quicker return to work if their rejected applications meet the requirements of this new policy. STEM OPT employees may now be eligible to resume employment even if their EAD application was rejected upon refiling of the STEM OPT application, since USCIS will treat the application as if timely filed (with all accordant benefits of that timely filing).

Missing or Deficient Signatures

Policy Announcement

USCIS stated that it would issue requests for evidence for applications that have “missing or deficient signatures.” USCIS confirmed that the agency’s policy is to reject applications with missing or deficient signatures, rather than accepting the filing fees and issuing receipts. “However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature,” the agency stated, “USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency.”

Employer Impact

This additional flexibility helps prevent problematic denials for signature issues, reducing the likelihood of additional delays or denials of work authorization for F-1 students who are concurrent or prospective employees.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 72
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About this Author

Associate

Marissa Cwik is an Associate in the Raleigh office of Ogletree Deakins. Marissa assists corporate clients with hiring and retaining foreign national workers.  She has expertise with nonimmigrant filings presented to the U.S. Department of State, U.S. Department of Homeland Security, and the U.S. Department of Labor, including E, H, J-1, L, O, P, and TN nonimmigrant petitions.  She is also experienced in supporting corporate clients with sponsoring foreign national employees for permanent residency, including first preference EB-1 petitions for persons of extraordinary...

919-760-3334
Steven Williams, Ogletree Deakins, Denver, Business Immigration Visa Lawyer, high-tech fields Attorney
Associate

Steven’s broad-ranging experience with immigration practice stems from his work within institutions of higher education and the federal government prior to joining Ogletree Deakins. His practice focuses on business immigration matters, representing companies and individuals in the academic, medical and high-tech fields. 

Mr. Williams manages green card processes for higher education institutions, large and small companies, and individuals for a variety of categories, including individuals of extraordinary ability, outstanding professors and...

303-764-6810
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