USCIS Now Stringently Enforcing Filing Deadlines for Student I-765 OPT Applications

In the past, USCIS had been somewhat flexible with student status and filing for employment optional practical training work authorization (OPT).  More recently, USCIS has been closing those gaps and enforcing the eligibility requirements and filing deadlines more strictly.  With this more stringent and literal implementation of the rules, it is imperative that foreign students, educational institution representatives, and employers of these students be aware of these tighter restrictions.

OPT Eligibility Requirements

Most foreign students are eligible for some form of Optional Practical Training (OPT) after completion of a certain educational degree.  There are several types depending on the student’s visa status, educational focus, and anticipated program completion date.

Generally, some of the OPT eligibility requirements are:

• Must be a full-time student for at least 1 year prior to OPT;
• OPT can be filed no more than 90 days before the 1 year school mark, 90 days before program end date, or no more than 60 days after program end date;
• OPT may be full-time or part-time, but cannot extend beyond 1 full year of work (with certain exceptions for STEM students, who can benefit from the 17-month STEM OPT extension);
• The student must have valid and active status in SEVIS;
• The employment must be related to the student’s field of study;
• For post-program completion OPT, the employment application (Form I-765) must be filed with USCIS within 30 days of the date the school representative enters the OPT recommendation into the student’s SEVIS record. In addition, the employment application must include the student Form I-20 endorsed by the authorized school representative within the last 30 days or less;
• For STEM OPT, the employment application must be filed before any prior post-completion employment authorization expires; and
• For M visa students, they must apply before the completion of their educational program.

While previously USCIS may have issued a Request for Evidence (RFE) when some of these eligibility deadlines were not met, they are now denying applications which do not meet these required dates after accepting them for review and after holding on to the applications for weeks, or even months.  In fact, an updated Form I-20 would no longer suffice to correct a delayed application for post-program completion OPT.  The school representative must also correct the student’s SEVIS record before USCIS will approve OPT employment authorization.  Because of this possibility of OPT application denial weeks or months after filing, it becomes important to not only file the OPT application well in advance (but within the required timeframes) but to anticipate and be prepared for a possible delay in work authorization.

USCIS Also Targeting Student Status Violations

In addition to adopting a more stringent approach towards reviewing and adjudicating I-765 OPT applications as discussed above, USCIS is also cracking down on student status violations.  There are several common mistakes which may cause a student to violate their student status:

• SEVIS is not updated with changes to student’s status and/or program, including a change of address or change of employer (if working pursuant to practical training);
• The student does not monitor their immigration status and is unaware if the U.S. government has not been properly made aware of reportable changes; and
• Unexpected changes such as personal hardship, financial difficulties, medical emergencies, or family emergencies.

While USCIS allows reinstatement of student status in some cases, the student must be able to rectify their status relatively quickly.  One of the most important (and often very difficult to overcome) requirements for filing a reinstatement of F-1 student status is that the student should not have been out of status for more than five months (or show exceptional circumstances otherwise). Other requirements for reinstatement of status include that the student must be or will be pursuing full-time student status and must have no history of prior violations, unauthorized employment, or lapse in status.

How Can Our Office Help?

If you are a student or educational facility representative needing assistance with these F-1 student status requirements, OPT processing or student status and reinstatement, please contact us.  We would be happy to consult with you and analyze your options for filing or other alternatives, if available.   Alternatively, we urge all foreign students and educational representatives to keep in mind that it is their responsibility to maintain visa status and visa sponsorship by following all relevant rules and regulations.  Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.