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Focus on Regulation

Increased emphasis on the timing of filing for F-1 Optional Practical Training authorization

According to reports received by the American Immigration Lawyers Association, F-1 students are now experiencing unforeseen denials of their applications for employment authorization (I-765) for Optional Practical Training (OPT) because some USCIS Service Centers have been taking a more restrictive approach to filing deadlines.  The USCIS regulations specify that, in addition to filing for post-completion OPT up to 90 days prior to program end date (and no later than 60 days after the program end-date), the student must file his/her I-765 application with USCIS within 30 days of the date the Designated School Official (DSO) enters the recommendation of OPT into the student’s SEVIS record.”  8 C.F.R. § 214.2(f)(11)(i)(B)(2).   The instructions accompanying Form I-765 also specify that an I-20 submitted alongside an I-765 requesting OPT must be “endorsed by a [DSO] within the past 30 days.”   However, prior practice by USCIS has been to issue a Request for Evidence (RFE) if an OPT application was received more than 30 days after the DSO entered the recommendation in SEVIS.  The RFE allowed the applicant an opportunity to submit a new Form I-20, which the DSO could reprint and sign without the need to enter a new OPT recommendation in SEVIS.  Recently, however, USCIS has begun to deny I-765 applications on the grounds that a new I-20 will not suffice given the language of the regulations.  To avoid a denial, the DSO should enter a new OPT recommendation in SEVIS if the OPT application is not submitted within 30 days of the entry of the DSO’s original recommendation.