The following settlement was reached in Li v. USCIS in favor of the OPT and STEM OPT applicant students suffering from delays and rejections:
1. For post-completion OPT or STEM OPT Form 1-765 applications received on or after October 1, 2020, through October 31, 2021, inclusive, USCIS will:
a. Issue EADs for up to 12 months of post-completion OPT commencing
from the date of approval of the Form 1-765 for post-completion OPT,
regardless of whether the 14-month period would have expired during
the EAD validity dates.
b. Approve Form 1-765 for post-completion OPT with validity dates
reflecting the same amount of time originally recommended by the
designated school official ("DSO") from their school on the Form 1-20,
Certificate of Eligibility for Nonimmigrant Student Status, if eligible,
up to the maximum 12-month period permitted under regulations
governing post-completion OPT.
c. Where an EAD has already been issued to a Putative Class Member
for whom the DSO had recommended the full 12 months, but the EAD
was issued with a validity period of less than 12 months, upon receipt
of the Putative Class Member's request for correction as indicated on
the USCIS website, issue a corrected EAD with a new end date to
cover the full amount of post-completion OPT time recommended in
the original application, if eligible, up to the maximum 12-month period
permitted under regulations governing post-completion OPT.
d. Allow Putative Class Members whose original, timely Form 1-765 for
post-completion OPT and STEM OPT were received on or after
October 1, 2020, through October 31, 2021, inclusive, and whose
applications were subsequently rejected, to resubmit the application
and treat the application as though it were received on the original
received date if it is received by November 30, 2021.
e. Allow applicants resubmitting a Form 1-765 pursuant to "d" above for
post-completion OPT or STEM OPT to submit the application without
obtaining a new Form 1-20 with an updated OPT recommendation
from the DSO, as long as they originally submitted an application for
post-completion OPT within 30 days of the DSO's recommendation or
an application for STEM OPT within 60 days of the DSO's
recommendation as required by the regulations.
f. Issue a Request for Evidence ("RFE"), instead of a denial, for a
missing or deficient signature, if a Form 1-765 application for post-
completion OPT or STEM OPT was already accepted at a USCIS
Iockbox.
2. For post-completion OPT Form 1-765 applications received on or after
the date of the Consent Order until October 31, 2021, USCIS will allow
foreign students to submit the Form 1-765 up to 120 days before the
end of their program date, rather than 90 days before the end of their
program date.
3. For Putative Class Members whose applications are ultimately
approved, duration of status will be defined as the period beginning
on the date that the student's application for OPT was properly filed
and pending approval, including the authorized period of post-
completion OPT, and ending 60 days after the OPT employment
authorization expires, consistent with 8 CFR § 214.2(f)(10)(ii)(D).
AGREED-UPON TIMELINE
1. Subject to Section VI., USCIS agrees to comply with the following
Benchmarks from the date the Consent Order is entered by the Court:
a. For properly filed post-completion OPT (and STEM OPT) 1-765
applications mailed to the Chicago ("CHI") lockbox at the correct P.O. Box,
or physical address with the correct "Attn" line, USCIS
represents that it is issuing receipt notices within two (2) weeks of
receiving the OPT 1-765 (including STEM OPT) application.
Therefore, there are no receipting delays for the OPT 1-765
(including STEM OPT) applications correctly mailed to the CHI
Iockbox.
b. USCIS agrees that it will process OPT 1-765 (including STEM OPT)
applications within 120 days of receipt. By "process," USCIS
means that the application will be reviewed by an officer and acted
upon, including to approve, deny, issue an RFE, Notice of Intent to
Deny (NOID), or refer the case for investigation.
2. The above Benchmarks in this Consent Order will be tolled in
circumstances including those outlined below:
a. There is a quarantine, or other action, due to health concerns, such
as COVID-19, which affects the relevant USCIS office, file rooms,
or officers assigned to these cases.
b. Any other event beyond the control of USCIS, including, but not
limited to, weather related events or software or hardware
malfunction that affects USCIS's ability to process these
applications.
c. If any of the aforementioned circumstances become evident to
USCIS, Defendants' Counsel will promptly notify Plaintiffs' Counsel of
such circumstances and the Parties will negotiate an extension.
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