The class action lawsuit – proposed at the District Court for the Southern District of Ohio – was led by 18 students with F-1 status on February 16, 2021. USCIS has since released an update, which seeks to reassure OPT applicants.

“This lawsuit seeks to mitigate the harm to the students resulting from the delay, which was solely in the control of USCIS”

In addition to compelling USCIS to process and adjudicate applications on a “timely basis”, the suit is seeking to prevent ICE from removing students who lose their F-1 status while waiting for USCIS to process applications, explained lawyer Robert Cohen at Porter Wright Morris & Arthur LLP.

“These students followed the law and timely applied for permission to stay in the US after completion of their formal studies,” he said, “for the purpose of completing a 12-month period of post-graduate optional practical training or an additional 24-month period based upon the OPT STEM extension.”

It also seeks to ensure students are put “in the same position and receive the same benefits they would have received had USCIS opened the mail and processed the applications as required”.

The USCIS update on February 18 said it is still experiencing delays at certain lockboxes in issuing receipt notices for Form I-765 which students require for employment authorisation applications. But USCIS reminded that delays will not affect the received date.

“We will not reject applications solely because they were filed at the lockbox address in use prior to the change to the filing address instructions announced on Jan. 8, 2021,” USCIS said.

“If you have timely filed Form I-765 based on STEM OPT, and your post-completion OPT period expires while the application is pending, we will automatically extend the employment authorisation for 180 days.”

However the delays have “created the risk that these students will lose their F-1 status, job offers, income, health insurance, and the opportunity to resubmit an OPT application if it is rejected”, Cohen noted.

“These problems become multiplied because the students also risk the threat of removal. This lawsuit seeks to mitigate the harm to the students resulting from the delay, which was solely in the control of USCIS.”

Cohen added that the lawsuit also seeks to ensure:

  • Students whose grace period expired while waiting for adjudication of their OPT applications should be permitted to remain in F-1 status until at least 14 days after their application is adjudicated.
  • Require USCIS not to reject applications for technical errors but instead issue a Request for Evidence
  • Require USCIS to accept applications that are corrected within 60 days after the date that they are rejected
  • Students are permitted to complete their full 12 months of OPT.

Students previously said they were considering mounting a legal challenge as a result of delays they have faced.

Under normal circumstances, USCIS would have issued receipts within days of submitting an application, but students have “been waiting for months”, Cohen continued.

“Starting October 2020, USCIS has unlawfully delayed opening, processing, and adjudicating applications submitted to its lockboxes in Arizona and Texas,” he said.

“Because USCIS didn’t do what it is supposed to do, the ability to gain the experience offered by the law may be lost or diminished. This is unfair and this lawsuit hopes to make it right.”

“We are aware of the impact the delays have had on nonimmigrant students,” USCIS said in a statement, adding that its lockbox workforce “continues to work extra hours and redistribute its workload, while maintaining Covid-19 protection measures, in order to minimise delays”.

Service centres are “aware of the impact of these delays and will work as quickly as possible to process Form I-765 applications for OPT”, it added.

It recommended applicants wait eight weeks to contact USCIS to enquire about case status.

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