DENIAL FOR FAILURE TO FILE FOR OPT EAD WITHIN THIRTY DAYS OF DSO’S RECOMMENDATION

The USCIS has taken a very hard line on approval of OPT (“Optional Practical Training”) EAD (“Employment Authorization Document”) applications filed by students who have completed their program of study. Recently, the USCIS disclosed it was denying applications where the applicant student had not filed the EAD application within thirty days of the DSO’s (Designated School Official’s) recommendation of optional practical training (OPT). Though the regulations mandate that the OPT must be filed within a window of ninety days before and sixty days after the completion of the “program end date”, there is an additional requirement in the instructions to the I-20 form: the application must also be filed within thirty days of the DSO’s endorsement recommending optional practical training.

Failure to comply with the time limits of BOTH these requirements will result in denial of the application, with significant hardship – and perhaps even loss of status – to the student.

However, in some cases, the DSO may have already issued the recommendation more than 30 days before the student is ready to file his or her OPT application. What is a student to do in that case? Here’s the answer:

The USCIS declared that the DSO cannot simply reprint the form I-20, update it or reissue the recommendation by hand, and have the student file it with an EAD application or in response to an RFE. The DSO must go into the SEVIS system, invalidate the earlier OPT recommendation, reissue a new recommendation, then reissue a new I-20, sign it and send it to the USCIS with the I-765 EAD application. Therefore, students are well advised to make sure that they are filing their EAD application within thirty days of the DSO’s recommendation, or failing that, to get a completely new recommendation – including an update in the SEVIS system – and then apply for an EAD within thirty days of receiving the new I-20 form.

The USCIS’ decision comes as a surprise to many, and is an indicator once again of the DHS’ policy to curtail the employment of aliens at a time when domestic unemployment appears to be high. Even though arguably this is a burdensome policy, the USCIS makes the rules and implements them. It would be prudent to follow its guidelines rather than having an application denied and then the student falling out of status.