In July 2021, USCIS reached a settlement in the class-action lawsuit filed by F-1 Students affected by lengthy adjudication for OPT applications. The U.S. District Court for the Southern District of Ohio issued the consent order for the settlement, which outlined that for OPT and STEM OPT extension applications filed between October 1, 2020, and October 31, 2021, USCIS will take official action (approve, deny, or issue a request for evidence) within 120-days. This was welcomed news for many, as the settlement provides much-needed relief in this area.

In addition to the 120-day commitment from USCIS, the settlement outlined other relief including:

  • A full 12 months of OPT upon approval, irrespective of the requirement OPT be completed within 14 months of adjudication
  • OPT approval for the full period recommended by the F-1 student’s DSO, regardless of how long the application has been processing at the time of approval
  • An agreement to issue corrected EADs for applicants who had their EAD issued for less time than requested, upon a formal request to USCIS for this relief
  • The opportunity for F-1 students with rejected applications to resubmit the applications and received the full period of OPT without having to first obtain a new Form I-20, as long as the originally submitted application was filed on time
  • An agreement that OPT applications can be submitted up to 120 days, instead of the normal 90 days, before the F-1 student’s academic program end date (flexibility which will apply until October 31, 2021)
  • An agreement to issue RFEs for missing or deficient signatures, rather than reject the filing

While the settlement outlined many significant measures to provide relief, the 120-day commitment is by far the most important. USCIS has a long-standing policy of processing employment authorization applications on a first-in, first-out basis. This means that regardless of your category type, your I-765 application will normally be processed in order of received. With the 120-day rule, OPT and STEM OPT applicants will now be given preferential treatment over EAD applications in other categories (such as H-4 EADs), since USCIS has committed to a specific timeline for these cases.  This is significant, since the other EAD categories are equally delayed.

USCIS’ decision to provide relief in this particular area is a powerful indicator that the U.S. government recognizes the value of retaining F-1 students in the U.S. long term.  As the U.S. looks to recover and rebuild the economy following the Covid-19 pandemic, retaining highly-educated graduates from U.S. universities– particularly those graduating in STEM subjects – is a good idea. This is a strong signal that the current administration supports and values high-skilled immigration.

ILBSG encourages our clients to take advantage of the expanded filing period for OPT applications (120 days before graduation through 60 days after the program end date), as this is temporary flexibility ending next month. We recognize that the timeline for applying for OPT is very time-sensitive, while the stakes are high. OPT is often the only opportunity to obtain valuable work experience in the U.S. following graduation, which can lead to finding a U.S. employer who may eventually sponsor you for an H-1B and/or green card. For that reason, ILBSG always recommends using an experienced immigration attorney when navigating this process.

Reach out to us today – we are here to help.

f-1 OPT Student Vida USCIS