It is common for individuals on F-1 visas to make mistakes when applying for their OPT or STEM OPT. Unfortunately, these mistakes are typically fatal to the immigration benefit sought, and are rarely, if ever able to be corrected. Some of the common mistakes lead to denials of OPT or STEM OPT, and the chances of fixing them on a motion to reopen or reconsider are highly unlikely. There are a number of specific regulatory rules that individuals need to be aware of that can lead to denials.
Before going into the pitfalls, it is important to provide a basic understanding of OPT and STEM OPT. Optional Practical Training, or OPT, is a temporary employment authorization valid for up to 12 months. This article will focus on post-completion OPT as it is the most common. The OPT regulations can be found in 8 C.F.R. § 214.2(f)(10)(ii). Generally speaking, OPT is valid for anyone graduating from an accredited degree program and completion of all course requirements of that program. The regulations require that the 12 months of training must be completed within 14 months of graduation. Importantly, the training must be directly related to the student’s major area of study. The 12 months of OPT is only available once per degree level, that is to say, an individual can receive OPT for a bachelor’s, a master’s or a doctoral program, but cannot receive OPT authorization at a second master’s degree. Additionally, OPT automatically terminates if a student begins a program at another educational level.
The STEM OPT extension is a 24 month extensions of post-completion OPT for a graduate with a degree in science, technology, engineering, or mathematics. The STEM OPT regulations can be found in 8 C.F.R. § 214.2(f)(10)(ii)(C). In order to determine the qualifications of the degree program, USCIS and ICE utilize the Department of Education’s Classification of Instructional Programs (CIP) list to determine if it falls into a STEM category. Students can only receive two lifetime STEM OPT regulations, and in order to qualify for a second STEM extension, the individual must complete a qualifying degree at a higher degree level and complete the post-completion OPT for that degree. STEM OPT has more stringent requirements than OPT, and because of that tends to see more pitfalls.
Both OPT and STEM OPT have requirements that if not met can result in a denial. For purposes of this article, the requirements will be put into one of the following categories: 1) timing, 2) clerical, and compliance.
For the initial post-completion OPT, an F-1 student must file an I-765 with USCIS. This application must be filed no earlier than 90 days prior to and no later than 60 days after the program end-date. Additionally, the I-765 must be received by USCIS no later than 30 days from the date the DSO updates the SEVIS portal recommending OPT. It is worth noting that these dates are hard deadlines and USCIS rarely, if ever, provides leniency to these deadlines. In the few instances we have seen leniency been given, it is strictly due to very extreme and extraordinary circumstances such as natural disasters. OPT applicants should coordinate with their DSO and apply early. There have been instances where the I-20 says one date, but the DSO recommend OPT in SEVIS at an earlier date. Unfortunately, this can result in a denial if the individual waits for 30 days from the I-20 date as it will be more than 30 days from the date the DSO has recommended OPT.
For STEM OPT extensions, the individual must apply for STEM OPT using an I-765, and it must be applied for prior to the expiration of the 12-month post-completion OPT. Please note, if you are in your 60-day grace period, you cannot apply for your STEM extension. Additionally, STEM OPT applicants must apply for STEM OPT within 60 days of the DSO entering a STEM OPT recommendation into SEVIS. The filing date is not the date you mail your I-765, but the date a proper application is received by USCIS, so again, it is better to file earlier rather than later.
Clerical pitfalls impact both OPT and STEM OPT similarly. They are not nearly as common as the timing issues, but we still see plenty of clerical problems at our office.
First, it is important that the individual sign all required documents prior to mailing the application. This includes signing the check, the I-765, the I-20, and the I-983 training plan for those applying for STEM OPT. Additionally, ensure that when you send the check, your check is still valid, is for the proper amount, filled out correctly, and properly addressed to the Department of Homeland Security. Another common mistake is using an improper version of the I-765. USCIS changes form versions often, and using an expired, or not yet valid, form version will result in a rejection.
Having clerical errors such as improper checks or wrong version can result in a rejected I-765. The filing and rejection of the I-765 can result in the timing issues addressed above as USCIS does not stop the clock until the application is actually receipted. This means that if you mail your application one month before the deadline, and it takes USCIS 4 weeks to reject it, which is not uncommon, you will not be able to apply for the benefit you seek.
OPT and STEM OPT has numerous regulations related to the compliance of the OPT and STEM OPT programs that both the individual student and the business must follow in order to allow continuation of the OPT or maintenance of status in order to properly apply for STEM OPT.
OPT and STEM OPT unemployment is one of the most common issues that cause a failure to remain compliance with the OPT program. For initial OPT, students cannot accrue more than 90 days of unemployment during the 12 month program. For STEM OPT, students cannot accrue more than 150 days of unemployment during both the OPT and STEM OPT period. In order to be considered employed, a student must work for at least 20 hours per week. Additionally, anytime not working and time without a job offer on OPT is considered unemployment. That is to say, if you receive your OPT on March 1, but do not secure an employer for your OPT and start working for them until April 1, you will have 31 days of unemployment. Unemployment time is also considered during period between OPT employers, so if you change from employer A to employer B and have a two week gap, this will be two weeks of unemployment. That said, taking advantage of company benefits you are offered, such as PTO, would not count as unemployment as long as your employment is active and you are utilizing benefits offered to you.
For STEM OPT, your employer must be an active E-verified employer. While many immigration benefits do not require the employer to be E-verified, for STEM OPT, there is no exception to the rule. It is advisable that STEM OPT applicants verify that their potential STEM OPT employer is actually E-verified. In a recent case, an employer provided an E-verify number, and unbeknownst to the company and the applicant, the E-verify status of the company had been terminated. This caused a denial of the STEM-OPT, and the employee was unable to refile. You can search for E-verify companies here: https://www.e-verify.gov/about-e-verify/e-verify-data/how-to-find-participating-employers.
One of the initial steps of STEM OPT is the completion of the Form I-983 training plan between the student and the employer. The training plan must clearly articulate the STEM OPT learning objectives and the employer must commit to helping the student achieve those goals. The I-983 training plan is submitted to the DSO in order for the DSO to review and recommend STEM OPT. Employers and students are subject to the terms and conditions of the I-983 training plan, as well as all STEM OPT regulations, and failure to do so can result in a determination of failure to maintain status. Given the time sensitive nature of the STEM OPT application, it is important to properly complete the I-983 the first time, and consider having it reviewed by an attorney, so that it is not rejected by the DSO.
For STEM OPT there are various reporting requirements for both the employer and the student that must be met to maintain STEM OPT compliance. Whenever a student on STEM OPT changes employers, the first employer must notify the DSO within 5 business days of any early departure or termination from employment. OPT students must report all name and addresses changes and interruptions of employment to the DSO, and to change employers, STEM OPT students must have DSO approval and a new training program submitted to the DSO.
Additionally, STEM OPT students must report to the DSO in 6-month increments and must report any name, residential, or employer changes. Additionally, every time a student leaves a position, a final self-evaluation on the Form I-983 is required by the student. In addition to the 6-month reports, each STEM OPT student must complete and submit an annual self-evaluation to their DSO describing the progress of their training. These must be received no later than 10 days following the conclusion of the training period. In essence, students will submit the following reports on STEM OPT:
- STEM OPT Start + 6 months: SEVIS information confirmation
- STEM OPT Start + 12 months: Annual self-evaluation and SEVIS information confirmation
- STEM OPT Start + 18 months: SEVIS information confirmation
- STEM OPT Start + 24 months: Final assessment that recaps the training and knowledge acquired and SEVIS information confirmation.
Students must report any material changes or deviations to their I-983 training plan. This can include, but is not limited to:
- Any change of the employer’s EIN.
- Any reduction in student compensation that is not tied to a reduction in hours worked.
- Any significant decrease in hours per week that a student engages in a STEM training opportunity.
- Changes to the employer’s commitments or student’s learning objectives as documented on the Form I-983.
Whenever a STEM OPT student is terminated, they must report the termination of their training within 10 days of the termination.
While this article focuses on the student aspect of OPT, there are STEM OPT reporting requirements for the employer as well.
- Employers must work with the student to complete the I-983 and have it signed verifying it is true and correct.
- Employers must review the student’s annual self-evaluation and sign attesting to its accuracy.
- Employers must work with the student to report any material changes or deviations of the I-983 such as, but not limited to, those listed above.
- Employer must notify the DSO when the employer terminates the students STEM OPT within 5 business days after the termination or after the student voluntarily departs the employer.
There can be a lot of potential issues for OPT and STEM OPT applicants. When preparing to file for and maintain your OPT and STEM OPT it is important to be mindful of the complex regulatory paradigm for the two programs. Failure to properly maintain your OPT or STEM OPT can result in significant consequences to your immigration journey. While your DSO can provide a majority of the information necessary, it may be worth discussing your situation with a qualified employment-based immigration attorney before applying.
Reddy & Neumann has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.
Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.