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Practice Note
 
OPT Applicant Must Pay Special Attention to Filing Deadline

According to an information release of AILA (the “American Immigration Lawyers Association”) of Oct. 19, 2012,  the AILA Students and Scholars Committee has learned that some USCIS Service Centers have been taking a more restrictive approach to filing deadlines for F-1 Optional Practical Training (OPT) applications, which is resulting in unexpected denials.

There are several deadlines to consider in handling an OPT application: Pursuant to 8 C.F.R. § 214.2(f)(11)(i)(B)(2) “[f]or post-completion OPT, the student must properly file his or her Form I-765 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 the Form I-765 with USCIS within 30 days of the date the DSO enters the recommendation of OPT into his or her SEVIS record” (emphasis added). In addition to the deadlines provided in the regulation, the I-765 instructions (Item 3.A. on page 2) require that an I-20 submitted with Form I-765 requesting OPT must be "endorsed by a Designated School Official within the past 30 days."

Until recently, when USCIS received an OPT application more than 30 days after the DSO entered the OPT recommendation in SEVIS, it would often send the applicant a Request for Evidence requiring a new Form I-20 signed by the DSO. The DSO could simply reprint the Form I-20 from SEVIS (without entering a new OPT recommendation in SEVIS) and sign it, and the student could submit it to USCIS. However, USCIS has recently taken the position that the phrase “within 30 days of the date the DSO enters the recommendation of OPT into his or her SEVIS record,” does not allow this approach, and applications submitted more than 30 days after the DSO’s recommendation of OPT in SEVIS are now being denied. This was also recently confirmed at the I-539 Stakeholder Engagement Meeting of 6/9/12, where USCIS officials stated that failure to timely file within 30 days of the date the DSO enters the recommendation for OPT will result in a denial of the application.


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