You Down With OPT?

I recently answered the following question:

"I had applied for my EAD in October, but yesterday received an update from USCIS on the website as Request For Initial Evidence Mailed. What could be the reason for this? And after responding, how much more time can it take for approval?"

  

ANSWER:

  

Pardon the corny humor, but RFE's can be "Naughty By Nature" (hey you know me). Sometimes they are issued just to give new USCIS employee experience! So it's important not to panic.

It's first good to know what evidence it won't request. Whether or not you have secured the appropriate type of OPT employment will not yet be questioned. This is because securing an OPT job, or offer for job, is not required when submitting an initial application. As such, the RFE will likely focus on basic eligibility, such as questions about your education institution or whether you have enrolled in sufficient schooling. Timing is also an issue as to whether you applied too soon or too late (I note your October filing), or whether you've used any pre-completion OPT. And, you may have provided this information just fine in your application, but perhaps further documentation is requested. Also, it could be as simple as a lack of signature or a particular question forgotten to be answered.

Our experience as Immigration Attorneys is that it's best not to wring one's hands until the RFE is actually received. It never hurts to review the Official OPT Rules.

As for the amount of time to adjudicate the application after you've responded to the RFE, if the amount of time impacts a certain circumstance in your life, then you should formally consult an attorney to analyze the details. If it is just due to worrying or curiosity, I encourage you to enjoy your Friday night and wait for the RFE to arrive.

OPT RULES

"Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). However, all periods of pre-completion OPT will be deducted from the available period of post-completion OPT.

"All OPT must be directly related to your major area of study. If you are an F-1 student, you may be eligible to participate in OPT in two different ways:

• Pre-completion OPT:  You may apply to participate in pre-completion OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. You do not need to have had F-1 status for the one full academic year; you can satisfy the “one full academic year” requirement even if you had another nonimmigrant status during that time.

If you are authorized to participate in pre-completion OPT, you may work part time (20 hours or less per week) while school is in session. You may work full time when school is not in session.          

• Post-completion OPT:  You may apply to participate in post-completion OPT after completing your studies. If you are authorized for post-completion OPT, you may work part time (20 hours or less per week) or full time.

If you participated in pre-completion OPT, USCIS will deduct that amount of time from your post-completion OPT authorization period. For example, if you participated in 10 months of pre-completion OPT, you would be eligible for only up to 2 months of post-completion OPT."

S.T.E.M. OPT RULES 

"If you have earned a degree in certain science, technology, engineering and math (STEM) fields, you may apply for a 24-month extension of your post-completion OPT employment authorization if you:

• Are an F-1 student who received a STEM degree included on the STEM Designated Degree Program List  (PDF),
• Are employed by an employer who is enrolled in and is using E-Verify, and
• Received an initial grant of post-completion OPT employment authorization based on your STEM degree."

Read the STEM OPT Rules!