OPT Rules under Biden’s Administration
Original : Ting Geng, Esq, Sylvia Tsai, Esq , Kevin Li, Rachel Cui, Wendy Lee, Winnie Bao
Since the outbreak of COVID-19, USCIS’ case processing time has been significantly delayed, and applicants often need to wait for months to get a filing receipt. On January 8, 2021, USCIS officially announced on its website, stating that applicants who file Form I-765 (work permit) and Form I-485 (non-family-based) may not receive filing receipt until four to six weeks after the application is submitted. In fact, many clients of our firm receive the filing receipt from USCIS two to three months after submitting the application. For sure, this brings inconvenience to applicants who indeed need the filing receipt as proof of eligibility to work.
In this case, who suffered the most? No doubt, F-1 students who wish to apply for OPT.
According to INA, F-1 students must submit Form I-765 to apply for OPT within 60 days after the program end, otherwise he/she will be disqualified. However, USCIS’ delay and inefficiency lead to a situation that when students receive the OPT work permit (EAD card), the validity period is less than 12 months from the expiration date. We have seen client receive OPT approval notice, yet the expiration date was only seven months away.
Furthermore, some students have missed the deadline and lost the qualification to apply for OPT resulting from USCIS’ slow processing speed.
…
Student’s Revenge: A Lawsuit by Victims Who Were Unable To get OPT Due to USCIS’ Inefficiency.
18 international students worked together and filed a class action again USCIS in the Southern District of Ohio District Court. In addition, other immigration groups also began to pay attention to these issues and to urge USCIS to improve.
In response, on February 26, 2021, USCIS published an announcement. We summarized the general ideas of the announcement as below:
1. Extended 14 months OPT period starting from the date of approval.
When F-1 students receive an approved Form I-765 for OPT, the effective period will be valid for 14 months instead of 12 months. In addition, the effective date of OPT will start from the date of approval, not the date suggested by the DSO on the I-20. If any F-1 students get an approved EAD with less than 12 months OPT period, they may request a correction of the EAD due to USCIS error and USCIS will issue a corrected EAD card with a new expiration date to make sure students have the full-length OPTs.
2. Refiling a returned OPT application.
After filing Form, I-765 for OPT, F-1 students may refile the OPT application before May 31, 2021 if USCIS returns the application due to some reasons. In this case, USCIS will treat the refiling application was filed on the original receipt date. F-1 students need to prove that USCIS received the prior OPT application between October 1, 2020 and May 1, 2021.
3. More flexibility. USCIS will not deny the application due to missing or deficient signatures.
For F-1 students who file I-765 application for OPT with signatures missing (e.g., student did not sign on the I-20) or deficient signatures (e.g., digital signature), USCIS would usually reject the application. However, if USCIS already received the application for OPT with missing or deficient signatures, USCIS will issue a Request for Evidence rather than denying the whole application.
Under President Biden’s administration, immigration trend has indeed changed. Recently, USCIS have begun to be more flexible on various immigration cases.
Based on our reservation, due to the impact of COVID-19, USCIS’ case processing has been significantly delayed which has caused inconvenience to applicants. Certainly, a new president and a refreshing administration may ease the tension and change the flow. We hope that Biden’s administration can take this opportunity to reform USCIS as a whole and take effective measures to improve and enhance the efficiency of USCIS.
Lastly, we want to remind F-1 students/applicants who are not selected in the initial round of 2021 H-1B Cap lottery, there are other options for you to maintain legal status or ways to pursue your American Dream in the U.S. If you want to explore more options or need any legal assistance, call, and make an appointment with us today!
Geng & Associates, P.C.
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275 Madison Street, #903, New York NY 10016
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