Supreme Court Rules to Keep Optional Practical Training Intact

On October 2, 2023, the U.S. Supreme Court indicated that it will not hear the WashTech case (Washington Alliance of Tech. Workers v. Department of Homeland Security) that challenged the legality of the Department of Homeland Security’s authority to create and maintain its Optional Practical Training (OPT) program for international students (F-1). This puts the case to rest once again, and leaves in place the lower courts' decisions upholding the program. The court’s decision to leave OPT intact resolves a major area of uncertainty for international students and preserves an important tool—applied learning—for student advancement and U.S. competitiveness in the global economy.

DHS Expands List of Fields Eligible for STEM OPT

The U.S. Department of Homeland Security added eight fields of study to the latest revision of its STEM (science, technology, engineering, and mathematics) Designated Degree Program List on July 12. Among the new fields are landscape architecture; institutional research; mechatronics, robotics, and automation engineering technology/technician; composite materials technology/technician; linguistics and computer science; developmental and adolescent psychology; geospatial intelligence; and demography and population studies. Full descriptions of these fields can be found in the Federal Register notice.

International students who earn degrees in fields on the list qualify for the STEM Optional Practical Training (OPT) program, which allows F-1 students to work in the United States for 3 years instead of the 1 year allowed under the standard OPT program. The STEM OPT list was last expanded in January 2022, when 22 fields were added. Notably, the DHS STEM OPT Designated Degree Program List is an exclusive list: CIP codes that are not on this list are not eligible for STEM OPT.

There is an annual deadline of August 1 for interested parties to nominate additional CIP codes for the DHS STEM Designated Degree Program List. The next annual deadline is August 1, 2023.

DHS Adds 22 Fields to STEM Designated Degree Program List

A Federal Register notice published January 21, 2022 announced that DHS "is amending the DHS STEM Designated Degree Program List by adding 22 qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each." See 87 FR 3317 (January 21, 2022). This critical list controls which F-1 students are eligible to apply for a 24-month extension of their Optional Practical Training (OPT).

The additions span a number of fields, from Bioenergy, to Human-Centered Technology Design, Climate Science, and Business Analytics, and is a welcome step for international education.

The STEM Designated Degree Program List is used to determine whether a degree obtained by certain F-1 Students qualifies as a science, technology, engineering, or mathematics (STEM) degree, as required for the F-1 Student to be eligible to apply for a STEM Optional Practical Training (OPT) extension. The STEM OPT extension is a 24-month extension of OPT available to F-1 Students who have completed 12 months of OPT and received a degree in an approved STEM field of study as designated by the STEM list.

USCIS Extends Flexibilities to Certain Applicants for OPT Impacted by Receipt Delays (Mar. 1, 2021)

USCIS has announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021, inclusive.

USCIS has experienced significant delays in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students, and is permitting the following flexibilities to assist certain applicants for OPT impacted by the delays.

14-month OPT Period Flexibilities

• F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period.

• To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.

• As of February 26, 2021, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

• F-1 students requesting post-completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.

Refiling Following Rejection

• Applicants for OPT must file the Form I-765 during certain timeframes. However, USCIS has recognized that due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.

• USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:

1. The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and

2. USCIS subsequently rejected it.

• Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.

• Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-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.

• Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.

Missing or Deficient Signatures

Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency. USCIS encourages applicants filing Form I-765 to review the form instructions on its website to ensure their application is complete before filing it.

If you are a student seeking OPT or STEM OPT and have been impacted by the receipt delays at USCIS or a rejection as described above, speak with your international advisor and should you need assistance requesting the flexibilities above, contact us.