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USCIS’ Flexibilities for Certain OPT Applicants
In response to delays due to COVID-19, USCIS announced on February 26th, 2021 (and updated this announcement on July 29th, 2021) flexibilities for OPT applicants who may be affected by delayed receipt notices for the Form I-765, which is used for filing OPT.
Although initially these flexibilities applied only to OPT applications received by USCIS on or after October 1st, 2020, through May 1st, 2021, USCIS posted an alert on July 29th, 2021 that these flexibilities have been extended to include OPT applications received by USCIS on or after October 1st, 2020, through October 31st, 2021.
120 Days Before Program Completion Date
Prior to this announcement, per USCIS’ guidelines, OPT applicants became eligible to apply for OPT only 90 days before their Program Completion Date. For example, assume your Program Completion Date was May 15th, 2021 - this implied that you became eligible to apply for OPT on February 14th, 2021 (90 days before).
As per this announcement, all OPT applicants submitting their OPT applications prior to October 31st, 2021, are eligible to apply for OPT up to 120 days before their Program Completion Date. Based on the example mentioned above, OPT applicants would now be eligible to apply for OPT on January 15th, 2021 (120 days before).
14-Month OPT Period Flexibilities
Prior to this announcement, per USCIS’ guidelines, Post-Completion OPT applicants must:
begin their 12-month OPT period (have an OPT Start Date) within 60 days of their Program Completion Date, and
end their 12-month OPT period (have an OPT End Date) within 14 months of their Program Completion Date
For example, assume your Program Completion Date was December 15th, 2020 and that you chose your OPT Start Date as February 13th, 2021 (60 days after your Program Completion Date). If USCIS granted your OPT Start Date as February 13th, 2021, your OPT End Date would be February 12th, 2022 – giving you the full 12-month period of work authorization.
Due to processing delays, some 12-month OPT applicants may only be eligible for a shortened period of OPT if their approval date falls outside of their normal 60-day grace period. This is because F-1 regulations require that the OPT end date cannot be more than 14 months from the program completion date.
Keeping the above example in mind, assume that with the current delays, USCIS granted you an OPT Start Date of March 1st, 2021. Per previous guidelines, your OPT End Date would still be February 12th, 2022, following the 14-month rule on the OPT End Date.
However, if you filed your Form I-765 application with USCIS between October 1st, 2020, through October 31st, 2021, USCIS will currently allow the 14-month period to commence from the date of approval of the Form I-765 for applications for Post-Completion OPT, opposed to the Program Completion Date mentioned on Page 1 of the applicant’s OPT I-20 document. This allows F-1 students seeking Post-Completion OPT work authorization to complete the full period of requested OPT up to 12 months, as mentioned on Page 2 of their OPT I-20.
Keeping the above example in mind with a delayed OPT Start Date of March 1st, 2021, your 12-month Post Completion OPT period begins March 1st, 2021 and not February 13th, 2021. Your OPT End Date would be February 28th, 2022 and not February 12th, 2022, thereby restoring your requested period of 12-month work authorization.
F-1 students requesting Post-Completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested (not to exceed 12 months) based on the requirement that the OPT End Date must be within 14 months of the Program Completion Date, may request a correction of the EAD Card due to a USCIS error.
In this case, you do not need to submit a new Form I-765 or a filing fee. Instead, you must submit:
The original card containing the error,
A detailed explanation of the card error, and
Supporting documentation on the correct information
to the service center or National Benefit Center that approved your latest Form I-765. USCIS will issue a corrected EAD with a new OPT End Date, as requested, to cover the full amount of OPT time (12 months) recommended in the original application.
Refiling Following Rejection
Normally, if your Post-Completion OPT application is rejected, USCIS will return your application (without charging you) along with a Rejection Notice to the US Mailing Address you provided on your Form I-765 as part of the application. You must file a completely new application with USCIS, but If the application is rejected after your filing deadline (i.e. within 60 days of your Program Completion Date), refiling would normally be denied.
However, USCIS will temporarily accept a refiled Form I-765 for Post-Completion OPT (and STEM OPT) and consider it as filed on the original filing date (before the rejection) if:
The original, timely filed I-765 application was received on or after October 1st, 2020, through October 1st, 2021, inclusive; and
USCIS subsequently rejected it
Refiled applications must be received by November 30th, 2021, for USCIS to treat the application as though filed on the original received date.
Normally, applicants refiling a Form I-765 would need to seek an updated OPT I-20 from their international student offices; however, USCIS’ temporary flexibility has made it easier for such applicants.
Applicants refiling a Form I-765 for Post-Completion OPT after a rejection between October 1st, 2020 and October 31st, 2021 do not need to obtain a new OPT I-20 with an updated OPT recommendation from their DSOs, as long as they previously submitted the original application for Post-Completion OPT within 30 days of the DSO’s recommendation (i.e. within 30 days of the OPT I-20 issue date found on Page 1 of the OPT I-20).
Applicants refiling a Form I-765 for STEM OPT after a rejection between October 1st, 2020 and October 31st, 2021 do not need to obtain a new STEM OPT I-20 with an updated OPT recommendation from their DSOs, as long as they previously submitted the original application for STEM OPT within 60 days of the DSO’s recommendation (i.e. within 60 days of the STEM OPT I-20 issue date found on Page 1 of the STEM OPT I-20).
Applicants refiling an application should include a copy of the rejection notice with the refiling application.
Missing or Deficient Signatures
Post-Completion OPT and STEM OPT applications with missing or deficient signatures are generally rejected before USCIS begins processing the application. However, in case USCIS accepts an application with a with missing or deficient signature on Form I-765, USCIS will issue a Request for Evidence (RFE) notice and send it to the applicant’s US Mailing Address mentioned in the application (on Form I-765) rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency.