New USCIS flexibility benefits for foreign students with OPT work authorization

Last week, the U.S. Citizenship and Immigration Services announced changes that will be good news for foreign students seeking Optional Practical Training in areas related to their major areas of study.

First, the 14 month completion period will start as of the date of the I-765 approval (as opposed to the academic program end date). The later start of the completion period will enable OPT beneficiaries to obtain employment for the full 12-month period.

Second, an OPT recipient who had already received an Employment Authorization Documents approval notice that was not valid for the full 12-month period may request a correction, and the USCIS will issue a new EAD, at no charge, to cover the full amount of OPT time.

Third, an OPT application being refiled because it was rejected erroneously will be treated as filed on the original filing date. The USCIS now says that the receipt/approval notice for a refiled OPT and STEM OPT I-765 application will bear the original filing date as long as the initial application was timely. An applicant who is refiling due to error need not obtain a new Form I-20s with an updated recommendation from the Designated School Official.

These changes apply to foreign students who filed (or will file) Form I-765 employment authorization applications from October 1, 2020, through May 1, 2021.

Background

Foreign students who complete degree programs from U.S. universities or colleges may work for U.S. employers through post-completion Optional Practical Training in areas related to their major fields of study. OPT work authorization is typically approved for a period of 12 months, and must be completed within 14 months of the student’s graduation date.

For F-1 students to take advantage of the post-completion OPT benefit, they must first receive a recommendation from the Designated School Official, who enters the recommendation into the Student and Exchange Visitor Information System web-based system. (SEVIS is used by the U.S. Department of Homeland Security to maintain and monitor information by certified schools regarding the Student and Exchange Visitor Program.) Then, within 30 days of entry of the recommendation into SEVIS, the student must file an I-765 application for employment authorization with the USCIS.

Foreign students may apply for employment authorization 90 days before completion of their degrees, and no later than 60 days afterward. Students may not begin OPT employment until the USCIS approves their applications and they receive their EADs.

Because of ongoing delays at USCIS lockbox facilities that began in late 2020, the agency has failed to timely process OPT-based EAD applications. The USCIS reports that it is currently taking up to eight months to process applications for employment authorization, citing “COVID-19 restrictions, a dramatic increase in filings of certain benefit requests, postal service volume and delays, and other external factors.” The same factors have led to the erroneous rejection of a number of applications for “untimeliness,” when the applications were actually timely.

As a result, students have been left in limbo with respect to whether their applications will be treated as timely filed.  Another concern is that as the applications sit at lockbox facilities, the 14-month period that runs from the academic program end date will elapse, which may leave students unable to have OPT employment for the full 12-month period.

Effect of the USCIS announcement

Lockbox delays have undoubtedly caused OPT applicants much anxiety over the past few months, and the USCIS announcement -- while positive -- will not help everybody. The announcement should have come months earlier, and may be too late to benefit many of last fall’s graduates. The majority of students who applied last fall for OPT work authorization are unlikely to have received their approvals even now. As a result, many applicants may have been forced to leave the United States because they could not survive here without income.

However, for those who have been able to “wait it out,” the announcement provides much-needed assurance that applicants will not, and should not, be penalized for agency delays or error. Moreover, employers will have more certainty, knowing that they can legally employ F-1 OPT work authorized students for the full 12 months. This is likely to make OPT employee candidates much more appealing.  In many instances, this training period is an internship of sorts through which the student may then segue into a different, more long-term employment visa category.

If you need assistance with hiring OPT candidates or any other immigration issues, please contact any member of our Immigration Practice Group.

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