USCIS Offers Relief to Certain F-1 OPT Applicants

The U.S. Citizenship and Immigration Services (USCIS) is providing additional flexibilities to qualifying F-1 students filing form I-765 based on OPT. These flexibilities are being provided because of ongoing processing delays at the USCIS and are available only to I-765 applications submitted to the USCIS on or after October 1, 2020 through May 1, 2021.

Allowing for Full 12 Months of Post-Completion OPT

For an F-1 student to begin working on OPT, the individual must first file an I-765 form and wait for the employment authorization document (EAD) to be issued. An initial period of post-completion OPT can be issued for a maximum of 12 months, but no longer than 14 months beyond the program end date. When I-765 applications are processed within a reasonable timeframe, this is not an issue. On the other hand, lengthy USCIS delays in processing OPT EADs threaten to significantly reduce the OPT time provided to international students.

Accordingly, one accommodation being made by the USCIS in response to the processing delays is to allow the 14-month period to commence from the date of approval of the I-765 for applications for post-completion OPT. Effective immediately, the USCIS will approve OPT applications for the same amount of time originally recommended by the designated school official (DSO) on the I-20 form. A qualifying OPT applicant who received less than the full amount of OPT time requested (up to 12 months) may request a correction of the EAD due to USCIS error.

Accommodation to Allow Refiling Following I-765 Rejection

To qualify for post-completion OPT, the applicant must properly file an I-765 application with the USCIS by no later than 60 days after the program end date. If the I-765 application is not properly filed (e.g., applicant fails to sign the I-765) the USCIS will reject the application and return the package to the applicant. By that time, if the deadline to file has not yet passed, the individual may correct the error and refile the application.

Under normal circumstances, the USCIS typically rejects an improperly filed application within a matter of weeks. Due to the ongoing backlogs, however, it may take the USCIS months before an application is reviewed to verify that it was properly filed. By then, the deadline for refiling an OPT application may have long since passed. To provide students with some additional flexibility, the USCIS will accept a refiled I-765 form for OPT and STEM OPT as filed on the original filing date if the original, timely filed application was both:

• received on or after October 1, 2020, through May 1, 2021, inclusive
• subsequently rejected by the USCIS

To qualify, the application must be refiled by May 31, 2021.

Conclusion

It is a welcome sign to see the USCIS taking steps to mitigate the damage caused by its own processing delays. We urge the USCIS to provide similar accommodations to foreign nationals in other situations who have been negatively impacted by these ongoing delays.

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