NAFSA Practice Advisory

Transcription

1 NAFSA Practice Advisory Managing the 30-Day Post-Completion OPT Filing Deadline October 23, 2012 Table of Contents Introduction... 1 What is the the date the DSO enters the recommendation of OPT into his or her SEVIS record?... 3 Advising and procedural challenges... 3 Options if the student misses the 30-day deadline... 5 Regulatory and SEVIS programming factors that impact the options available... 5 The status of the OPT request in SEVIS... 5 The recommended OPT employment start and end dates... 6 Whether the student is still within his or her 60-day post-completion grace period... 6 Scenarios... 6 I-765 not yet filed with USCIS... 7 I-765 filed, but status of OPT request in SEVIS listed as REQUESTED... 7 I-765 filed, but status of OPT request in SEVIS has changed to PENDING... 7 USCIS has denied the OPT request... 8 Introduction A post-completion Optional Practical Training (OPT) application can be rejected or denied if filed outside required date ranges. 1. Rule 1 - Filed too early: sooner than 90 days before the requested OPT start date. Under 8 C.F.R (f)(11)(i)(B)(2), the DSO recommendation must be made in SEVIS, and the I-765 and OPT I-20 must be received by USCIS, no sooner than 90 days before the program end date. 2. Rule 2 - Filed too late: later than 30 days following the date the DSO updated SEVIS with the OPT recommendation. Under 8 C.F.R (f)(11)(i)(B)(2), the Form I-765 and I-20 in support of postcompletion OPT must be received by USCIS no later than 30 days after the DSO updates SEVIS with the OPT recommendation. 1

2 3. Rule 3 - Filed too late: later than 30 days following the date the DSO endorses the OPT I-20. The instructions to Form I-765 also state that in addition to the above, an I-20 submitted with Form I-765 requesting OPT must be "endorsed by a Designated School Official within the past 30 days." 4. Rule 4 - Filed too late: later than 60 days after the program end date listed in SEVIS and on Form I- 20. Under 8 C.F.R (f)(11)(i)(B)(2), the OPT application must be received by USCIS no later than 60 days after the student s program end date. 5. Rule 5 14-month window. All post-completion OPT must be completed within the 14-month period following the completion of studies [8 C.F.R (f)(10)(ii)(A)(3)]. This means that: a. The requested OPT employment start date may be no more than 61 days beyond the program end date. b. The 14-month period is use it or lose it. The student s 12 months of OPT eligibility must fit within the 14-month window. If less than 12 months remain by the time USCIS adjudicates the OPT application, the OPT end date will not be extended beyond the 14-month mark, and the student will lose practical training time. 30 DAYS 60 DAYS 90 DAYS Post-Completion OPT Filing Timeline Funnel This practice resource focuses on Rule 2, described above. USCIS Service Centers are consistently denying post-completion OPT applications received more than 30 days after the DSO updated SEVIS with the OPT recommendation. If the denial is received after the student s 60-day post-completion grace period, it may not be possible to reapply for OPT. Schools should implement procedures to ensure that students are aware of this and all OPT filing deadlines. 2

3 What is the the date the DSO enters the recommendation of OPT into his or her SEVIS record? 8 C.F.R (f)(11)(i)(B)(2) requires that: 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. The date the DSO enters the recommendation of OPT into his or her SEVIS record is recorded in the Event History of the student s SEVIS record, bearing the event name OPT Employment Requested. Here s a sample event history to illustrate how to identify the date: It is the OPT Employment Requested date in the Event History that begins the 30-day filing deadline specified in 8 C.F.R (f)(11)(i)(B)(2). Post-completion OPT applications received by USCIS more than 30 days beyond that date will be denied. Advising and procedural challenges You should be aware of several challenges as you advise students and help them with their postcompletion OPT applications to USCIS. Do not confuse the date the DSO enters the recommendation of OPT into his or her SEVIS record with the date the I-20 is issued or signed. They are not the same. It is the OPT Employment Requested date in the Event History, not the date the I-20 was issued or signed, that begins the 30-day filing clock specified in 8 C.F.R (f)(11)(i)(B)(2). Do not confuse the Form I-765 instruction that an I-20 submitted with Form I-765 requesting OPT must be "endorsed by a Designated School Official within the past 30 days, with the regulatory requirement that the I-765 must be received within 30 days of the date the DSO 3

4 enters the recommendation of OPT into his or her SEVIS record. These are two different requirements, each of which must be met. Reissuing the I-20 will not change the OPT Employment Requested date. Be aware that the OPT Employment Requested date recorded in SEVIS does not automatically print out anywhere on Form I-20. Here is a sample of an I-20 for which OPT has been requested. As you will see, only the requested employment start and end dates print out, in the Student Employment Authorization and Current Authorizations sections on page 3 of the I-20: Another challenge schools face is how to consistently educate their students about their OPT Employment Requested date and the 30-day filing deadline. Strategies, which can be applied to other OPT deadlines and filing requirements as well, might include: o Place a comment in SEVIS that prints out on the Form I-20 o Include filing deadline information in a notice affixed to the I-20 once it has been signed by the DSO o Offer (if feasible, require) students to attend an OPT information session/workshop before applying; consider alternate formats such as online modules in addition to live workshops 4

5 o o o o Communicate regularly with students via website, blasts, newsletters, etc., about the OPT process Set realistic turnaround times for OPT application processing depending on your office environment and advisor workload Establish an internal (recommended) OPT application deadline that works for your office Create a fact sheet/acknowledgment form for students to sign if I-20/OPT packet is picked up within 10 days of grace period end date along these lines: I understand that if my application arrives after XXX date (filing deadlines) my OPT application will be denied and I may have to go home. I understand that there is no appeal to an OPT denial. I understand that it is my responsibility to ensure that the application arrives at the appropriate lock box facility on or before XXX date (filing deadlines). Options if the student misses the 30-day deadline Ideally, of course, a student will not miss the 30-day deadline, by properly filing his or her postcompletion OPT package with USCIS as soon as possible after receiving the OPT I-20 from the DSO. The options available to a student who misses the 30-day deadline depend on how far along in the OPT process the student is when it is realized that the 30-day deadline has been missed. We ll examine the following scenarios: I-765 has not yet been filed with USCIS I-765 has been filed, but the OPT request in SEVIS is still listed as REQUESTED I-765 has been filed, but the status of the OPT request in SEVIS has changed to PENDING USCIS has denied the OPT request Regulatory and SEVIS programming factors that impact the options available Several regulatory and SEVIS programming factors will impact the options available in the above scenarios: 1. The status of the OPT request in SEVIS 2. The recommended OPT employment start and end dates 3. Whether the student is still within his or her 60-day post-completion grace period The status of the OPT request in SEVIS An OPT request can have six statuses in SEVIS: Requested Canceled Pending Approved Denied 5

6 Withdrawn When the OPT request is first entered into SEVIS by the DSO, it is automatically placed in Requested status. A DSO can Cancel an OPT request (and thereby change the status of the request to Canceled) only when the request is in Requested status. The other request statuses are normally changed through a data interface with USCIS s CLAIMS system as the application moves through the stages of USCIS processing. And so, when USCIS accepts the application, USCIS enters it into CLAIMS, and CLAIMS should interface with SEVIS to update the status of the request to Pending, etc. Each update should also appear as an event in the student s event history in SEVIS. In some cases, however, the CLAIMS-SEVIS interface does not correctly update the status of the request, in which SEVIS Help Desk intervention is required to update the request status. We will be referring to request statuses as we describe the options available to help your students. The recommended OPT employment start and end dates Although the SEVIS system allows multiple segments of OPT to be recommended, the system does not allow the dates of those segments to overlap, and so a new OPT recommendation cannot be entered into the SEVIS if the employment begin and end dates overlap with a prior recommendation, unless the status of the prior OPT request is Canceled, Denied or Withdrawn. Whether the student is still within his or her 60-day post-completion grace period Before the 60-day grace period has passed, it may still be possible for the DSO to make a new OPT recommendation in SEVIS and to file a new OPT application with USCIS. After a student s 60-day postcompletion grace period has passed, the situation may not have an easy remedy, if any remedy at all, because: From the process point of view, SEVIS will not permit a DSO to Add OPT Employment more than 60 days beyond the student s program end date, nor will the system accept an employment start date that is more than 61 days beyond the program end date. From the regulatory point of view, a student can no longer apply for OPT once the 60-day postcompletion period is over. Scenarios Taking into account the above factors and considerations, let s examine the following scenarios. The goal is to file a new, complete application for OPT. To do that, the following conditions would have to be met: 1. The DSO must make a new recommendation for OPT in SEVIS, before the student s 60-day grace period ends. 2. The student must submit a new OPT application to USCIS with a full application (and fee) for postcompletion OPT, and file the application so USCIS receives it within 30 days of the date the DSO made the new OPT recommendation in SEVIS and before the student s 60-day grace period ends. The possibility of filing a new OPT application will differ depending on the scenario. 6

7 I-765 not yet filed with USCIS If the DSO has recommended post-completion OPT in SEVIS, but the student has not yet filed Form I-765 with USCIS, the status of the OPT request in SEVIS will remain REQUESTED. This scenario can also arise if the student s OPT application was rejected without processing by USCIS, as can happen if the student fails to include the filing fee or to sign his or her Form I-765. SEVIS allows the DSO to cancel an OPT request while it is in REQUESTED status, through the Cancel Request link on the OPT Employment screen. Refer to section of the SEVIS RTI User Manual for details on the Cancel Request procedure. After the OPT request is cancelled, the DSO can enter a new OPT recommendation, which will then create a new OPT Employment Requested date in the student s Event History in SEVIS. The DSO would then issue a new I-20 bearing the new OPT recommendation, and the student would submit a new complete OPT application to USCIS. I-765 filed, but status of OPT request in SEVIS listed as REQUESTED Updates to the status of the OPT request done through the CLAIMS-SEVIS interface may not be immediate. As long as the OPT request is in REQUESTED status, the DSO can use the Cancel Request procedure described in the scenario above. Since the application has been filed with USCIS, however, the DSO should also have the student withdraw the OPT application, following the specific Service Center s procedures. After the OPT request is cancelled and the OPT application is withdrawn, the DSO can enter a new OPT recommendation, which will then create a new OPT Employment Requested date in the student s Event History in SEVIS. The DSO would then issue a new I-20 bearing the new OPT recommendation, and the student would submit a new complete OPT application to USCIS. I-765 filed, but status of OPT request in SEVIS has changed to PENDING If the status of the OPT request has been changed to PENDING through the CLAIMS-SEVIS interface, the DSO can no longer use SEVIS Cancel Request function. In this case, the OPT application should be withdrawn following the specific Service Center s procedures. After the application has been withdrawn, USCIS should note the withdrawal in CLAIMS, and the CLAIMS-SEVIS interface should change the status of the OPT request to WITHDRAWN. The other alternative is to insist that USCIS deny the application, which would should result in the OPT request status being changed to DENIED. After the OPT request status has been changed to WITHDRAWN or DENIED, the DSO can enter a new OPT recommendation, which will then create a new OPT Employment Requested date in the student s Event History in SEVIS. The DSO would then issue a new I-20 bearing the new OPT recommendation, and the student would submit a new complete OPT application to USCIS. If the CLAIMS-SEVIS interface does not change the status of the OPT request to WITHDRAWN or DENIED, the DSO may need to request SEVIS Help Desk assistance. DSO can initiate this request through the SEVIS Request Change to Student Request function. To do this, click the Request Change to Student Request link on the Student Information screen. On the Request Change to Student Request screen that 7

8 appears, the PDSO or DSO selects the Request Correction link in the Command menu corresponding to the OPT request. In the screen that appears, in the Change Request Status To field, choose Withdrawn or Denied from the drop-down list (depending on what action was taken on the request), and include any in the Correction Remarks field the justification for requesting the change to Withdrawn or Denied status. Those remarks display to DHS during the review process. If timing is an issue after submitting this request, contact the SEVIS Help Desk to ask that the request be elevated. In this case, the Help Desk will need some documentation from USCIS to corroborate that the requested change is valid. After the OPT request status is changed to Withdrawn or Denied, the DSO can enter a new OPT recommendation, which will then create a new OPT Employment Requested date in the student s Event History in SEVIS. The DSO would then issue a new I-20 bearing the new OPT recommendation, and the student would submit a new complete OPT application to USCIS. USCIS has denied the OPT request If USCIS denies a post-completion OPT application on the basis that it was not filed within 30 days of the date the DSO enters the recommendation of OPT into his or her SEVIS record, options will differ depending on the status of the SEVIS record at the time the denial notice is received. The student can consider make a new application for OPT if the denial is received before the student has reached the end of his or her 60-day post-completion grace period. To do this, the following conditions would have to be met: 1. The DSO must make a new recommendation for OPT in SEVIS, before the student s 60-day grace period ends. a) To do this, the status of the OPT employment request is SEVIS has to have been updated by the CLAIMS-SEVIS system interface to DENIED. If the request is still in PENDING status, a new OPT recommendation cannot be made if the dates of the new recommendation overlap the dates of the prior recommendation. There may be a lag in this interface update. It is also possible that the CLAIMS-SEVIS interface fails to update the request status. A correction to the request status may be necessary to update the request status if this happens. Follow the Request Change to Student Request procedures described in the preceding scenario, but ask instead that the request status be changed to Denied, rather than Withdrawn. b) After making the new OPT recommendation, the DSO should print a new Form I-20 that reflects the new recommendation, sign the I-20, and give it to the student to sign and send to USCIS as part of a full OPT application. 8

9 2. The student must reapply to USCIS with a full application for post-completion OPT, and file the application so USCIS receives it within 30 days of the date the DSO made the new OPT recommendation in SEVIS and before the student s 60-day grace period ends. a) The new application of OPT must include everything needed for a complete application, including a properly completed and signed Form I-765, a Form I-765 filing fee in the proper amount, and a new Form I-20, properly signed and reflecting the new OPT request. Denials received after a student s 60-day post-completion grace period has passed are much more problematic, and may not have an easy remedy, if any remedy at all. From the process point of view, SEVIS will not permit a DSO to Add OPT Employment more than 60 days beyond the student s program end date, nor will the system accept an employment start date that is more than 61 days beyond the program end date. 9