18 OPT applicants sued USCIS asking for the extension

Delays in OPT and STEM OPT extension application processing by USCIS have concerned many F-1 international students. Since F-1 students cannot start working without authorization, international students should wait for the EAD card to arrive, even though they have a job offer letter on and after the OPT start date. Furthermore, USCIS’s delay can be problematic especially when the 60 days of grace period upon graduation is coming to an end.

To advocate their needs and rights, 18 international students who had filed the OPT application in a timely manner sued USCIS and ICE and asked for the extension of stay and extension of OPT period. What is more, the lawsuit asks for some changes in OPT application adjudication process which will benefit both current and future OPT students.

In this blog post, what students have asked for and responses of USCIS will be introduced. If you are experiencing delays in EAD card issuance for OPT and STEM OPT program, read it carefully to take advantage of USCIS’s flexible OPT policy updates.

Contents

• Requests of 18 OPT applicants regarding the OPT extension
• USCIS flexible OPT policy updates

Requests of 18 OPT applicants regarding the OPT extension

Although the delays in EAD card processing are the main reason for filing the lawsuit against USCIS and ICE, this lawsuit also asks for updates in OPT application process that can benefit current and future OPT applicants. For example, the lawsuit by 18 OPT applicants based in Ohio and Lawyer Robert Cohen from Porter Wright Morris & Arthur LLP seeks the following:

• Extension of F-1 status: Allow initial OPT students, whose grace period has been expired, to stay up to 14 days after the OPT application adjudication date.
  • *Note that the employment authorization period for STEM OPT extension applicants automatically extends up to 180 days if students filed the STEM OPT application in a timely manner. To learn more, click this post: My STEM OPT is in pending and my EAD end date is near.
• Issuance of the Request of Evidence: When it comes to technical errors like credit card payment issues, issue a Request of Evidence rather than reject the entire OPT applications.
• Allow the re-filing of the OPT application: Accept corrected OPT applications within 50 days from the initial rejection date.

USCIS flexible OPT policy updates

In response to the lawsuit, USCIS announced its flexible OPT policy updates for students who filed the OPT application between October 1, 2020, and May 1, 2021, inclusive. The blog post titled USCIS flexible OPT updates due to I-797 receipt notice delays details each update and the brief summary will be introduced below. As you can see most of the requests by 18 Ohio-based international students were accepted.

• 14-month OPT period flexibilities
• Refiling following rejection
• Missing or deficient signatures

14-month OPT period flexibilities

USCIS will ensure that all of the eligible OPT applicants have the opportunity to work through OPT for one full year. They will adjust the OPT start date and end date based on the approval date and DSO’s recommendation on SEVIS.

F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT 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.

USCIS EXTENDS FLEXIBILITIES TO CERTAIN APPLICANTS FILING FORM I-765 FOR OPT

Refiling following rejection

USCIS will also extend the refiling window for OPT and STEM OPT extension applicants whose applications are rejected. Therefore, OPT students can correct the application and refile it by May 31, 2021.

USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:

-The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and

-USCIS subsequently rejected it.

Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.

USCIS EXTENDS FLEXIBILITIES TO CERTAIN APPLICANTS FILING FORM I-765 FOR OPT

Missing or deficient signatures

One of the common mistakes made by international students when they complete Form I-765, Application for EAD card is not putting their signatures at all or putting electronic signatures. USCIS usually rejects those applications but they are going to be more flexible with the policy and provide a Request for Evidence rather so that students can correct the issue and refile the application.

Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, 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. 

USCIS EXTENDS FLEXIBILITIES TO CERTAIN APPLICANTS FILING FORM I-765 FOR OPT

Below are available posts for students who are planning to apply for OPT extension:

Related blog post 1: STEM OPT eligibility, process, required documents
Related blog post 2: 2020 STEM CIP CODE; If my major is newly added, can I apply for STEM OPT?
Related blog post 3: Important STEM OPT reporting requirements