USCIS reaches settlement in a class action suit relating to OPT delays, assures timely adjudication

The US Citizenship and Immigration Services (USCIS) has reached a settlement, with a group of 18 plaintiffs, in the class action lawsuit challenging the delays in OPT adjudications. The terms of the settlement will also benefit the putative class (similarly placed individuals) and offer relief to international students who bore the brunt of these delays.
“Among other provisions, USCIS has agreed to adjudicate optional practical training (OPT) and STEM extension applications within 120 days for those applications filed before October 31, 2021,” Robert Cohen, partner and chair at the immigration practice group with the law firm of Porter Wright Morris & Arthur, stated in his social media posts. This firm represented the plaintiffs in the class action suit.
Under a 1992 regulation, the Optional Practical Training (OPT) program enables international students on F-1 (academic study visas) to gain experience in a chosen speciality by working for one year, usually after graduation. Subsequently, a regulation introduced in 2016, enables STEM students (those in the science, technology, engineering and mathematics field of study) to get a further OPT extension of up to 24 months. In other words, the OPT tenure available to them is three years.
The nationwide class action lawsuit was filed, as beginning approximately mid-October last year, USCIS significantly slowed or stopped opening, processing and adjudicating OPT and STEM extension applications that were submitted to lockboxes in Arizona and Texas.
It may be recalled that several international students, including those from India, had begun tweeting their woes and tagging USCIS for redressal.
Of the several issues covered in the lawsuit, the plaintiffs stated that this would cause them imminent and irreparable harm, as it could even lead to loss of status and they would be subject to deportation on expiry of the grace period post the date of completion of their education program. Owing to the delay plaintiffs and unnamed class members have not or will not be able to accept job offers, prospective employers will not be able to sponsor them for the H-1B lottery, they pointed out.
The law firm representing the plaintiffs and the US government began several months of negotiations resulting in a consent order. Porter Wright Morris & Arthur in its post has highlighted the salient features of the consent order. From the perspective of international students, the key points are:
1. For applications for OPT and STEM extensions filed between before Oct. 31, 2021, USCIS commits to processing within 120 days. Processing means that the application will be approved, denied or a Request for Evidence (RFE) issued within 120 days.
2. The interim relief announced on Feb. 26, 2021, continues for all cases filed between Oct. 1, 2020 and Oct. 31, 2021. This includes:
– A full 12 months of OPT irrespective of the requirement OPT be completed within 14 months of graduation;
– OPT will be granted for the full period recommended by the DSO, irrespective of the time of adjudication;
– If an Employment Authorisation Document (EAD) has been issued for less than these time periods, USCIS will issue a corrected EAD upon request;
– Rejected applications which were originally submitted on time can be resubmitted and will be processed as if received on the original date (the full period of OPT will be granted, but the original I-20 will be accepted without the requirement of a new I-20).
– Requests for Evidence will be issued instead of a denial for missing or deficient signatures;
– OPT applications can be submitted up to 120 days (instead of 90) before completion of the program until Oct. 31, 2021

As per the Open Doors Report, for the year 2019-20, nearly 18% of the total contingent of international students (or 1.93 lakh) were from India. Further, 81,173 were engaged in the OPT program. While the number of students from India has been on the decline, US educational institutions still continue to attract a fair share of students. This consent order will be a huge relief to those who were impacted by the delays.