On July 29, 2021, USCIS posted an alert on its February 26, 2021 web page that provides a very brief summary of the Consent Order issued by the U.S. District Court for the Southern District Court of Ohio Eastern Division in the Juyi Li et al. v. USCIS et al. class action lawsuit that had been filed on February 16, 2021. A "consent order" is an enforceable order arising out of a settlement negotiated by the parties and approved by the judge.

The USCIS alert reads:

"ALERT: Pursuant to a court order (PDF, 613.77 KB), these flexibilities have been extended to include applications received from Oct. 1, 2020, through Oct. 31, 2021.

For applicants who timely filed Form I-765 for OPT and STEM OPT and whose applications were later rejected, USCIS will accept a refiled Form I-765 as filed on the original filing date if:

  • The original, timely filed application was received on or after Oct. 1, 2020, through Oct. 31, 2021, inclusive; and
  • USCIS subsequently rejected it.

Refiled applications must be received by Nov. 30, 3021, for USCIS to treat the application as though filed on the original received date.

Additionally, for applications received through October 31, 2021, applicants can file Form I-765 up to 120 days before the program end date."

To more fully understand the USCIS summary, read the the language of the full consent order. NAFSA has transcribed below the interim relief portion of the consent order. Where the order references Putative Class Member(s), that term is defined in the order as "all students in F-1 nonimmigrant status whose Form I-765 for post-completion optional practical training (OPT) or for the STEM OPT extension was received between October 1, 2020 and October 31, 2021."

Notes

The interim relief section of the order describes 3 categories of relief numbered 1-3, with category 1 containing 6 sub-points a-e. Here are some notes on the relief categories.

  • Can file standard post-completion OPT applications up to 120 days before program end date, rather than only up to 90 days. Category 2 provides that for standard post-comption OPT applications received through October 31, 2021, all standard post-completion OPT applicants can file Form I-765 up to 120 days before the program end date, even though regulations at 8 CFR 214.2(f)(11)(i)(B) provide that post-completion OPT applications can filed no more than 90 days before the program end date.
    • This is a new flexibility added by the court order, which was not part of USCIS's original February 26, 2021 flexibilities.
    • The general wording and structure of Category 2 (e.g., "foreign students" rather than just "putative class members") appears to make this flexibility available to all standard post-completion OPT applications received through October 31, 2021, not just to applications that were rejected or refiled.
    • This relief does not cover applications for STEM OPT, which must still be filed no earlier than 90 days before the standard OPT end date in accordance with 8 CFR 214.2(f)(11)(i)(C). This is likely because STEM OPT includes an automatic 180 days of work authorization beyond the OPT end date if the standard OPT expires while the STEM OPT application is still pending, whereas the extra filing time would be more useful to standard OPT applicants who must wait until their standard OPT application is approved and their EAD received before they begin work.
  • Refiling following rejection. Category 1.d. allows putative class members to resubmit an application that USCIS rejected, if USCIS received the rejected application between October 1, 2020 through October 31, 2021, as long as the refiled application is received by November 31, 2021. Category 1.d. treats a resubmitted application as having been filed on the receipt date of the prior rejected application.
    • Category 1.e. relates to category 1.d, to say that a student who resubmits a rejected application undercategory 1.d. may resubmit the application using the same I-20 used in the rejected package and without getting a new OPT recommendation from the DSO. However, using the same I-20 in this way is only possible if "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."
    • This means that if the prior application was or is rejected in whole or in part because the student did not file within the relevant 30 or 60-day timeframe following the original DSO OPT recommendation in SEVIS, the prior I-20 and DSO recommendation cannot support the refiled application. Although this could be read to mean that these students who did not timely could refile with a new DSO OPT recommendation and new Form I-20, the guidance does not address the circumstance where students are beyond their grace period by the time they receive(d) notice of the rejected application.
    • This basically mirrors USCIS's February 26, 2021 flexibility, but extends the refiling deadline from May 31, 2021 to November 30, 2021.
  • 14-month standard post-completion OPT period flexibilities. Categories 1.a., 1.b., 1.c., and 3 work together to protect the full duration of OPT and of the student's status when the interim relief results in OPT that extends beyond the 14-month period in which standard post-completion OPT must normally be completed (specified by 8 CFR 214.2(f)(10)(ii)(A)(3)).
    • This basically mirrors USCIS's February 26, 2021 flexibility.
  • RFE instead of rejection or denial for missing or deficient signatures on Form I-765. Although lockboxes will continue to reject OPT applications with a missing or deficient signature, if such an application is accepted by the lockbox and makes its way to a USCIS adjudicator, USCIS will issue an RFE for the proper signature instead of denying the application.
    • This basically mirrors USCIS's February 26, 2021 flexibility.

Consent Order Interim Relief Language

Refer to the court order (PDF, 613.77 KB) for the original source.

"III. INTERIM RELIEF

1. For post-completion OPT or STEM OPT Form I-765 applications received on or after October 1, 2020, through October 31, 2021, inclusive, USCIS will:

a. Issue EADs for up to 12 months of post-completion OPT commencing from the date of approval of the Form I-765 for post-completion OPT, regardless of whether the 14-month period would have expired during the EAD validity dates.

b. Approve Form I-765 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 Nonimmgirant Student Status, if eligible, up to the maximum 12-month period permitted under regulations governing post-completion OPT.

c. Where an EAD has already been issued to a Putative Class Member for whom the DSO had recommended the full 12 months, but the EAD was issued with a validity period of less than 12 months, upon receipt of the Putative Class Member's request for correction as indicted on the USCIS website, issue a corrected EAD with a new end date to cover the full amount of post-completion OPT time recommended in the original application if eligible, up to the maximum 12-month period permitted under regulations governing post-completion OPT.

d. Allow Putative Class Members whose original, timely Form I-765 for post-completion OPT and STEM OPT were received on or after October 1, 2020, through October 31, 2021, inclusive, and whose applications were subsequently rejected, to resubmit the application and treat the application as though it were received on the original received date if it is received by November 30, 2021.

e. Allow applicants resubmitting a Form I-765 pursuant to "d" above for post-completion OPT or STEM OPT to submit the application without obtaining 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.

f. Issue a Request for Evidence ("RFE"), instead of a denial, for a missing or deficient signature, if a Form I-765 application for post-completion OPT or STEM OPT was already accepted at a USCIS lockbox.

2. For post-completion OPT Form I-765 applications received on or after the date of the consent Order until October 31, 2021, USCIS will allow foreign students to submit the Form I-765 up to 120 days before the end of their program date, rather than 90 days before the end of their program date.

3. For Putative Class Members whose applications are ultimately approved, duration of status will be defined as the period beginning on the date that the student's application for OPT was properly filed and pending approval including the authorized period of post-completion OPT, and ending 60 days after the OPT employment authorization expires, consistent with 8 CFR 214.2(f)(10)(ii)(D)."

The February 26, 2021 USCIS Flexibilities Page

Content of the February 26, 2021 USCIS Flexibilities page, amended below by NAFSA to reflect [in brackets] the July 28, 2021 consent order's extended flexibility dates.

"USCIS Extends Flexibilities to Certain Applicants Filing Form I-765 for OPT

Release Date: 02/26/2021

ALERT: Pursuant to a court order (PDF, 613.77 KB), these flexibilities have been extended to include applications received from Oct. 1, 2020, through Oct. 31, 2021.

For applicants who timely filed Form I-765 for OPT and STEM OPT and whose applications were later rejected, USCIS will accept a refiled Form I-765 as filed on the original filing date if:

  • The original, timely filed application was received on or after Oct. 1, 2020, through Oct. 31, 2021, inclusive; and
  • USCIS subsequently rejected it.

Refiled applications must be received by Nov. 30, 3021, for USCIS to treat the application as though filed on the original received date.

Additionally, for applications received through October 31, 2021, applicants can file Form I-765 up to 120 days before the program end date.

USCIS today announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021 [now October 31, 2021], inclusive.

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. While we have made progress in addressing the problem, we are extending the following flexibilities to assist certain applicants for OPT impacted by the delays.

14-month OPT Period Flexibilities

F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period. 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 today, 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, we recognize 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 Oct. 1, 2020, through May 1, 2021 [now October 31, 2021], inclusive; and
  • USCIS subsequently rejected it.

Refiled applications must be received by May 31, 2021 [now November 30, 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.

Missing or Deficient Signatures

Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency. We encourage applicants filing Form I-765 to review the form instructions on our website to ensure their application is complete before filing it."

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