OPT Update: USCIS extends flexibility following lawsuit resolution

U.S. Citizenship and Immigration Services has extended flexible measures for F-1 students in Optional Practical Training following a consent order in a lawsuit challenging the government for delays in issuing employment authorization documents (EADs).

Key Points:

• Flexible measures announced in February to mitigate the EAD delays have been extended to apply to applications received on or after Oct. 1, 2020 through Oct. 31, 2021, inclusive. These measures include:
  • F-1 students will be given a full 12 months of OPT regardless of the requirement that OPT must be completed within 14 months of graduation.
  • OPT will be given for the full period recommended regardless of when the adjudication was made, and USCIS will issue a corrected EAD if it was issued for less than the full period recommended.
  • OPT and STEM OPT applicants can file Form I-765 up to 120 days before the program end date for applications received through Oct. 31, 2021.
  • Applicants who originally filed Form I-765 for OPT or STEM OPT on or after Oct. 1, 2020 through Oct 31, 2021 but was later rejected by USCIS can now refile the application. Refiled applications must be received by Nov. 30, 3021, for USCIS to treat the application as though filed on the original received date.

Additional Information: USCIS agreed to the terms in the Consent Order. The parties agreed to negotiate any issues of noncompliance in good faith, and the court can intervene if problems cannot be resolved. More information on the OPT class action can be found here.

BAL Analysis: The extended flexibilities are a positive development for employers with OPT and STEM OPT programs. The additional flexibility should help mitigate the delays in work authorization for F-1 students.

This alert has been provided by BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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