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Settlement Reached with USCIS in Class Action Suit Relating to OPT Processing Delays.

Advantage OPT students in the class action:

Settlement Reached with USCIS in Class Action Suit Relating to OPT Processing Delays. USCIS recently settled a class-action lawsuit regarding lengthy delays in the processing of Employment Authorization Document (EAD) applications for individuals in F-1 student status. The settlement is welcome news to F-1 students who have been delayed in their ability to begin work following graduation due to long delays at USCIS.

What is The Law Suit About?

The OPT or the Optional Practical Training is a 1992 law that allows those on academic study or F-1 visas to work in the US for a year after their graduation in order to gain experience in their chosen field. The 2016 order allows this OPT time to be extended for another 24 months for students in the STEM fields – that is, science, technology, engineering, and math.

Background

A class-action lawsuit, Li v. USCIS, filed in February 2021 against the U.S. Citizenship and Immigration Services (USCIS) has been settled. The lawsuit alleged an impermissible delay in processing employment authorization document applications for post-graduate optional practical training (OPT) as well as STEM Extension OPT. Eighteen named F-1 students who had applied or planned to apply for employment authorization asserted that the delay in processing caused them and other similarly situated students irreparable harm. This harm included potentially being subject to removal from the U.S. when the grace period following their education program ended as well as losing job offers, income, health insurance, and opportunities to register for the H-1B lottery.

Details of the USCIS Settlement

  1. For applications for OPT and STEM extensions filed before Oct. 31, 2021, USCIS commits to processing within 120 days. Processing means that the application will be approved, denied or an RFE issued within 120 days.
  2. The Interim Relief announced on Feb. 26, 2021, continues for all cases filed between Oct. 1, 2020, and Oct. 31, 2021. This includes:
  •  A full 12 months of OPT irrespective of the requirement OPT be completed within 14 months of graduation.
  •  OPT will be granted for the full period recommended by the DSO, irrespective of the time of adjudication.
  •  If an EAD has been issued for less than these time periods, USCIS will issue a corrected EAD upon request.
  •  Rejected applications that were originally submitted on time can be resubmitted and will be processed as if received on the original date (the full period of OPT will be granted, but the original I-20 will be accepted without the requirement of a new I-20).
  • Requests for Evidence will be issued instead of denial for missing or deficient signatures.
  • OPT applications can be submitted up to 120 days (instead of 90) before completion of the program until Oct. 31, 2021.
  1. USCIS will provide monthly reports until all cases filed before Oct. 31, 2021, have been adjudicated, to permit the court and plaintiff’s counsel to monitor compliance. The court retains jurisdiction during this time period.
  2. The parties agree to negotiate any issues of non-compliance in good faith. If the problems cannot be resolved, the parties may request court intervention.

Feb. 26, 2021: USCIS has posted an announcement to provide for a full 12 months of OPT, beginning on the date of approval and irrespective of the date an academic program ended. In addition, any applications rejected between Oct. 1, 2020, and May 31, 2021, can be corrected and resubmitted before May 31, 2021, with the originally issued Form I-20. Include a copy of the rejection notice so that the application can be considered as if filed on the original submission date. We will continue settlement discussions next week to address the remaining issues in this case including the problems created by the increased processing times.

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