USCIS Extends Flexibilities to Certain Applicants Filing Form I-765 for Optional Practical Training (OPT)
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Pasricha & Patel
USCIS has announced filing flexibilities for certain F-1 foreign students who are affected by the delays in issuance of receipt notices for Form I-765, Application for Employment Authorization. In particular, USCIS has extended flexibilities to the 14-month OPT (Optional Practical Training) period; option to refile after rejection by USCIS; and responses to Request for Further Evidence (RFEs) for missing or deficient signatures. But these flexibilities only apply to applications received on or after October 1, 2020 through May 1, 2021, inclusive.
USCIS points to the extensive delays at its USCIS mailing lockboxes in connection with issuing I-765 filing receipt notices for OPT/F-1 students. It acknowledges that these delays, which are the result of combination of COVID-19 restrictions, great increase in filings of certain immigrant petitions, postal service volume and delays, and other factors that are beyond USCIS control, and it has greatly impacted OPT/F-1 applicants, who also have no control over these events.
Flexibilities in 14-month OPT period:
- F-1 students are allowed 12 months of post completion OPT, which traditionally must be completed within 14 months from the end of their academic program.
- However, because of prolonged delays at the USCIS lockboxes, some of the applicants end up being granted shortened OPT employment authorization period within that 14-month period.
- To address this discrepancy, USCIS is allowing the 14-month period to start from the date of approval of the Form I-765 employment authorization for post-completion OPT.
- Starting on February 26, 2021, USCIS will approve post completion OPT applications with validity dates that reflect the same length of time that was initially recommended by the F-1 student’s Designated School Official(DSO) on their SEVIS I-20 certificate.
- For those F-1 students who requested post-completion OPT and who have received I-765 EAD approval period that is less than the full length of time requested on their OPT period because of the requirement that the OPT has to be completed within 14 months of their program ending date, the F-1applicant can request for correction on the EAD by stating USCIS error, and USCIS will issue a corrected EAD card with a new end date that would cover the full length of OPT time that the DSO had initially recommended on the initial I-765 application.
Refiling Form I-765 after rejection by USCIS:
- Traditionally, OPT applicants must file their I-765 application during designated timeframes. However, because of the current delays at the USCIS lockboxes, some applicant who have timely filed their I-765 applications based on OPT and are subsequently rejected would not be able to refile their I-765 application within the requisite filing timeframe.
- USCIS has decided to accept a refiled I-765 application for either OPT, or STEM OPT as timely filed on the original filing date, IF:
- The original, timely filed application was received on or after October 1, 2020, and through May 1, 2021, inclusive of that date; AND
- USCIS subsequently rejected the Form I-765.
- The refiled applications must be received by no later than May 31,2021, in order for the USCIS to accept the application as timely filed on the original received date.
- Importantly, those applicants who refile their Form I-765 under the above-stated conditions, do NOT have to obtain a new Form I-20 with updated OPT recommendation from their DSO, AS LONG AS they had initially submitted their Form I-765 for post completion OPT within thirty (30) days of the DSO’s recommendation, or an application for STEM OPT within sixty (60) days of the DSO’s recommendation as set by USCIS regulations.
- Applicant who refile their EAD application should make sure to include the copy of the rejection notice to help with the case review by USCIS.
Finally, missing or deficient signatures:
- Traditionally, USCIS has rejected applications that are missing signatures or have deficient signatures at the lockbox receipt stage.USCIS has not changed that rule.
- However, if the lockbox receipt accepts the Form I-765 application for OPT, or STEM OPT with any missing or deficient signature, rather than denying the application, the USCIS will issue a Request for further evidence (RFE) notice and give the applicant the chance to provide the needed signature, or correct any deficiencies in the signature.
As explained by the USCIS, a combination of different factors contributed to the USCIS’s decision to grant some flexibilities to F-1 OPT applicants and their Form I-765 application filing process. This is certainly welcome news, and one may wonder whether the USCIS has any intentions of extending these flexibilities to other application types, especially as the USCIS lockboxes are facing unprecedented delays at processing and issuing receipt notices.
We will wait and see if the USCIS decides to do that. We encourage readers to check back with us on regular basis on the latest news and developments in immigration related matters.
Should readers have any questions or concerns about this latest news from the USCIS, or if you have a more specific case that you wish to discuss with our firm, we encourage you to contact our office to schedule formal consultation.