180-day-in-advance EAD renewal filing policy does not apply to OPT applications

 

The U.S. Department of Homeland Security final rule, "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled Nonimmigrant Workers," published at 81 FR 82398 (November 18, 2016), took effect on January 17, 2017 (see NAFSA's trending issue page on this rule).

In the preamble to that final rule, DHS stated:

"Current DHS policy allows EAD renewal applications submitted under certain categories to be filed up to 120 days before the applicant's current EAD expires. In response to the comments received requesting additional time for advance filing, DHS will adopt a filing policy that will generally permit the filing of an EAD renewal application up to 180 days before the current EAD expires, except when impracticable. This filing policy will be posted on the USCIS Web site and will take into consideration any other regulatory provisions that might require a longer or shorter filing window depending on the specific renewal EAD employment category."

This NAFSA note is to clarify that this 180-day-in-advance EAD renewal filing policy does not apply to filing OPT applications of any type. OPT filing windows are controlled by specific regulations that were not changed by the AC21 rule that went into effect on January 17, 2017. The regulations (and one SEVP policy statement in the case of pre-completion OPT) fix OPT pre-filing windows to no more than 90 days. USCIS will continue to reject OPT applications filed too early, even if filed only 1 day too early. Here are the sources of authority that govern OPT applications:

Pre-completion OPT

8 CFR 214.2(f)(11)(i)(B)(1)

(1) Pre-completion OPT. For pre-completion OPT, the student may properly file his or her Form I-765 or successor form up to 90 days before being enrolled for one full academic year, provided that the period of employment will not start prior to the completion of the full academic year.

SEVP 2010 OPT Policy Guidance item 5.5

What is the earliest a student can apply for pre-completion OPT?

A student may file for OPT up to 90 days before he or she completes a full academic year. If the student has already completed a full academic year, he or she may apply for OPT up to 90 days in advance of the requested employment start date.

Post-completion OPT

8 CFR 214.2(f)(11)(i)(B)(2)

(2) Post-completion OPT. For post-completion OPT, not including a 24-month OPT extension under paragraph (f)(10)(ii)(C)(2) of this section, the student may properly file his or her Form I-765 or successor form up to 90 days prior to his or her program end date and no later than 60 days after his or her program end date. The student must also file his or her Form I-765 or successor form with USCIS within 30 days of the date the DSO enters the recommendation for OPT into his or her SEVIS record.

STEM OPT

8 CFR 214.2(f)(11)(i)(C)

(C) Applications and filing deadlines for 24-month OPT extension. A student meeting the eligibility requirements for a 24-month OPT extension under paragraph (f)(10)(ii)(C) of this section may request an extension of employment authorization by filing Form I-765 or successor form, with the required fee and supporting documents, up to 90 days prior to the expiration date of the student's current OPT employment authorization. The student seeking such 24-month OPT extension must properly file his or her Form I-765 or successor form with USCIS within 60 days of the date the DSO enters the recommendation for the OPT extension into his or her SEVIS record. If a student timely and properly files an application for such 24-month OPT extension and timely and properly requests a DSO recommendation, including by submitting the fully executed Form I-983 or successor form to his or her DSO, but the Employment Authorization Document, Form I-766 or successor form, currently in the student's possession expires prior to the decision on the student's application for the OPT extension, the student's Form I-766 or successor form is extended automatically pursuant to the terms and conditions specified in 8 CFR 274a.12(b)(6)(iv).