By: Bruce E Buchanan, Sebelist Buchanan Law

USCIS has announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021, inclusive. Since many employers employ OPT and OPT STEM students, this is helpful for employers.

14-month OPT Period Flexibilities

Due to the delays at the USCIS lockbox, some applicants may only be eligible for a shortened period of OPT within the 14-month period to work for 12 months. Thus, to allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.

Beginning February 26, 2021, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) from their school on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

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) due to the requirement that the OPT be completed within 14 months of the program end date, may request a correction of the EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.

Refiling Following Rejection

Applicants for OPT must file the Form I-765 during certain timeframes. However, USCIS recognizes that due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.

USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if the original, timely filed application was received on or after October 1, 2020, through May 1, 2021, inclusive, and USCIS subsequently rejected it.

Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.

Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from the DSO, as long as they originally submitted an application for post-completion OPT within 30 days of the DSO’s recommendation or an application for STEM OPT within 60 days of the DSO’s recommendation as required by the regulations. Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.

These temporary changes are due to the fact that USCIS has experienced delays at certain lockboxes in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students. These delays are a result of COVID-19 restrictions, a dramatic increase in filings of certain benefit requests, postal service volume and delays, and other external factors.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.