What happens if I apply for OPT late? 5 big disadvantages

I recently had a student who wanted to apply for OPT very late. How late the student was? The student had just about a week left to stay in the United States. To put it simply, the student’s 60 days grace period was ending next week so the student must apply for Optional Practical Training basically within a week.

If you have been following my articles that can be found on the OPT page regarding the delays in the EAD card issuance due to COVID-19, you would know by now how late this student is. When this student reached out to me for the new I-20 with OPT recommendation, my first reaction was “oh oh :(” and I had to inform the student of the 5 risks of applying for OPT when the grace period is ending soon.

In this blog post, I will share 5 big disadvantages of late OPT filing. I hope this article urges all international students to plan ahead and file the OPT application in a timely manner.

Disclaimer: SEVIS SAVVY delivers information based on the visa/immigration regulations and this is no legal advice by any means. Since institutional policies may vary, getting confirmation from your international student advisor will be helpful to ensure that you comply with institutional policies and processes.

Contents

• Case study scenario
• The answer based on the regulation
• Disadvantage of late OPT filing 1: the student cannot reapply
• Disadvantage of late OPT filing 2: no grace period after rejection
• Disadvantage of late OPT filing 3: Shorter OPT period
• Disadvantage of late OPT filing 4: Accrual of unemployment days
• Disadvantage of late OPT filing 5: Difficult to negotiate the job start date

Case study scenario

Q: My grace period is ending soon but I haven’t applied for OPT. Can I apply for OPT? If so, what would be the disadvantages of applying OPT late?

The answer based on the regulation

According to the OPT start date rule, as written in 8 CFR 214.2(F)(11)(I)(B)(2), F-1 visa students “may properly file his or her Form I-765 or successor form up to 90 days prior to his or her program end date and no later than 60 days after his or her program end date.” (To learn how to choose the best OPT start date, click the first related blog post below.)

Related blog post: Best OPT start date: Remember the 90, 60, 30 rule

Therefore, students can apply for OPT even during the 60 days of the grace period that comes after the Program End Date on your I-20 AND within 30 days from DSO’s OPT recommendation date. However, it comes with risks.

Disadvantage of late OPT filing 1: The student cannot reapply

First, if your OPT application is denied for some reason after your grace period ends, you cannot re-apply for OPT. This is because, as you can see in the picture above, the latest date that USCIS can accept your application is the 60th day after the Program End Date.

On the other hand, students, who applied for OPT well in advance and got denied might have the second chance to re-apply for OPT as long as they are in the “5-month window.”

When the processing time was extremely slow at USCIS, they announced the flexible rules which allowed rejected students to refile the OPT application even after the grace period. However, this flexible rule only applied to “certain applicants who timely filed the OPT application during October 1, 2020, and May 1, 2021.”

The bottom line appears that students, who apply as late as the grace period end date, cannot refile the OPT application as the grace period might have ended by the time USCIS rejects the OPT application.

Disadvantage of late OPT filing 2: No grace period after rejection

In the same vein, OPT applicants whose OPT application is denied after the grace period won’t get an additional grace period. Students who got denied before the program end date and during the grace period can fully take advantage of 60 days grace period.

However, students, who already used up the grace period while waiting for the USCIS’s adjudication over OPT, won’t be given an additional grace period cushion if their OPT applications are rejected. In this scenario, they must leave the country immediately.

Disadvantage of late OPT filing 3: Shorter OPT period

As you know already, the general guideline for OPT period allows international students to engage in employment opportunities for a year. But students who late file the OPT application might not be able to take full advantage of 12 months of OPT period.

Why? It is because international students with an F-1 visa are subject to the “14-month” rule which can be found in the immigration regulation 8 CFR 214.2(f)(10)(ii)(A)(3). To summarize the rule, all practical training except the STEM OPT should be completed “within a 14-month period following the completion of the study.”

A student must complete all practical training within a 14-month period following the completion of study, except that a 24-month extension pursuant to paragraph (f)(10)(ii)(C) of this section does not need to be completed within such 14-month period.

8 CFR 214.2(f)(10)(ii)(A)(3)

In other words, to be authorized to work through OPT for a full year, the OPT start date should be no later than the grace period end date (60 days grace period + 12 months of OPT participation equals 14 months). When a DSO recommends OPT participation for the student in SEVIS, they are required to put a recommended OPT start date and USCIS tends to approve this start date unless it has already passed.

If the recommended OPT start date has passed, though, USCIS might select any date that seems appropriate as OPT start date for late filing students. Now, if the date USCIS determines is after the grace period, a total period of OPT program length will be shortened accordingly, due to the 14-month rule.

Disadvantage of late OPT filing 4: Accrual of unemployment days

Even if USCIS approves the recommended OPT start date-that is before the grace period end date- there still is a disadvantage for an OPT student which is accruing unemployment days from the OPT start date. Why? This is because OPT students can start working only when the following two conditions are met:

1. The OPT start date is here; and
2. The student has received the EAD card.

Since it takes time for USCIS to issue the EAD card and ship it out, unemployment days will be counted while the student is waiting for the card to arrive. This means students would have a short time to look for jobs. As you might know already, OPT students should not accrue more than 90 days of unemployment.

Disadvantage of late OPT filing 5: Difficult to negotiate the job start date

As I have discussed above, for late filled OPT applications, USCIS might approve the recommended OPT start date or they would give a new OPT start date. This uncertainty doesn’t help international job seekers at all, as it makes them less confident about the possible start date.

Students who file the OPT application in a timely manner can share when they expect to begin working with their possible employers as USCIS usually accept the recommended OPT start date. However, it is tricky to foresee what would USCIS do with late OPT filing. Therefore, more things will be added for F-1 visa students to figure things out as a candidate for the job position.

This blog post had a look at 5 big disadvantages of late OPT filing. To sum, students who submit the OPT application near the grace period would not be able to re-apply for OPT and no additional grace period will be given if USCIS rejects the application.

Even if USCIS approves the application, late OPT applicants would not be able to take full advantage of OPT period or the unemployment clock will start ticking depending on USCIS’s adjudication on OPT start date. Last but not least, all these uncertainties burden international students as they move forward in the job-seeking process.

Taking all these things into account, it can’t be emphasized enough how important it is for international students to plan their lives after graduation and apply for OPT well in advance. All information that international students should know about the OPT program can be found on the OPT page. If you are studying STEM OPT-eligible majors, check out the STEM OPT page. General but important F-1 visa regulations can be found on the F-1 visa info page.