All you need to know about processing delays on OPT & Extension applications

Consultadd LegalNewsletter

Post Completion Optional Practical Training (“OPT”) is a period in which undergraduate and graduate students with F-1 status, who have completed their degrees, are permitted by the United States Citizenship and Immigration Services (“USCIS”) to work on a student visa towards getting practical training to complement their education.

Growth in students applying for OPT has increased overall in US over the last few years. The number of OPT participants in 2017-2018 has increased immensely. Students may file their application up to 90 days before graduation, and those applications are expected to be processed within 60 to 90 days.

In case of students eligible for 24 months extension due to their field of study in Science, Technology, Engineering and Mathematics (STEM) can apply for extension of their existing OPT no more than 90 days before the current OPT expiration date.

American Immigration Lawyers Association (AILA) on January 30, 2019 analyzed the data issued by USCIS and revealed crisis level delays in the agency’s processing of applications under current Administration. The policy brief says that, “processing times for OPT applications have increased from previous maximum of 90 days in 2016 to 5.5 months, today”. During this waiting period, new applicants of OPT are not eligible to work, unless supplemented by a different employment authorization document (EAD). In some cases, applicants must immediately return to their home country if their application is denied.

In case of STEM Extension your work authorization will be automatically prolonged up to 180 days from the last date on your current Employment Authorization Card. This means, if you filed for your OPT extension and the procession time is longer than expected, you have until 180 days to continue your authorized working status. Posts 180 days, if your case is still pending, you are not eligible to continue your lawful working status; although you could still lawfully reside in USA while you wait for the decision.

This year, US citizenship and Immigration Services (USCIS) is projecting times of up to five months, the reason for the delay is attributed to backlog in the system arising from “a surge in employment authorization requests”, as per the article in New York Times  . These delays results in students losing internships and employment opportunities. Processing delays depends on time of the year the application is submitted, how busy the USCIS office is at the time and the number of backlogs they have. However, USCIS acknowledges the extraordinary delays this year and officials have said that they have implemented a plan to address this and return to standard processing times soon. You can check processing time for your applications here.

Sometimes students receive Request for Evidence (RFE) and this term make students anxious; they feel troubled because processing of their applications gets delayed by few more weeks. The truth is there is no need to panic when you receive the RFE. RFE neither means that your application is going to be denied nor implies that you are in bigger risk of getting denial. It simply suggests that the USCIS officer receiving your application needs more information before he or she makes a decision. Respond to RFE by providing all the required documents in a timely manner.

When your application has been pending more than 115 days from the Receipt Date that appears on your Form I-797 Receipt Notice, and your planned start date is within 2 weeks, please contact your Designated School Official (DSO). In certain situation you may request USCIS to expedite your pending OPT if you have a valid expedition reason; such as severe financial loss to company or individual, humanitarian situation, USCIS error. After you file an expedition, USCIS will email you the results of your expedite request. If expedition is approved, your application is normally processed within 3-7 days of the request, and the Employment Authorization Document (EAD) arrives. If the expedition is denied, your application will be returned to the queue where it was before. An overview is available on USCIS website. 

In case you receive denial, there is still remedy for it. Students who do not exceed 90/120 days of unemployment are granted a 60 day OPT grace period. If you leave the U.S after completing your studies and OPT period, you are not eligible to re-enter with your current I-20. The grace period is meant for travel within the states and preparation to depart the U.S. You have other options: for instance you can re-enroll in your school and request a new I-20 for a new degree program, enroll in a new school and transfer your SEVIS record to a new school; or apply to change the status to another visa category. 

For now, we can only hope that the USCIS understands the adverse effects of these delays on international students and take necessary steps to return to their normal processing times; because even couple days of delay can impact someone’s career and life.

ABOUT AUTHOR: Ayushi Nigam, a former employee of Consultadd legal team, has 3 years of experience in US Immigration laws and has lent Soha Mohanty, our newly joined legal team member, her expertise to pen down this article.

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