USCIS Settles Class Action Lawsuit Seeking Relief from OPT Delays

The agency promised to offer relief to students on the receiving end of OPT adjudication.

The USCIS has agreed to open, process and adjudicate applications for OPT and STEM extensions within 120 days. 

(Photo: The Quint)

The United States Citizenship and Immigration Services on 26 July, reached a settlement with plaintiffs in a lawsuit seeking injunctive relief from delays in Optional Practical Training (OPT) adjudication.

The USCIS denied all allegations but agreed to offer interim relief to the plaintiffs, adding that the negotiations were carried out in "good faith". The terms of the consent order will also benefit the putative class – others affected by the same issues as the plaintiffs, reported The Times of India.

What is The Law Suit About?

The OPT or the Optional Practical Training is a 1992 law that allows those on academic study or F-1 visas to work in the US for a year after their graduation in order to gain experience in their chosen field. The 2016 order allows this OPT time to be extended for another 24 months for students in the STEM fields – that is, science, technology, engineering and math.

The class action suit was filed in October 2020, when the USCIS allegedly slowed or stopped the processing of OPT and STEM extension applications which affected a lot of International students, including those from India.

Eighteen plaintiffs, who are students on the F-1 visa, and have applied, or will apply, for permission to stay in the US on completion of their formal studies for OPT, alleged that "USCIS slowed and/or stopped processing applications, causing the named plaintiffs and other similarly-situated students (who are referred to as unnamed or putative class members) to potentially be removed from the US when the grace period following their education program ends, as well as to lose job offers, income, health insurance, and lose their opportunities to register for the H-1B lottery".

It would result in, the plaintiffs claimed "irreparable harm" and might lead to deportation and thus they will not be able to accept job offers from prospective clients.

What Interim Relief Has Been Granted?

1. For the applications for OPT and STEM extensions filed before 31 October, the USCIS will process them within 120 days.

2. Rejected applicants can reapply.

3. Requests for evidence will be issued instead of rejecting an application for missing signatures.

4. Applications can be submitted up to 120 days before completion of the program if the application is made before 31 October.

5. 12 months of OPT has to be completed within 14 months from the date of graduation.

6. A monthly report has to be submitted to the plaintiffs' lawyers regarding the data and status of applications and aggregate data of the cases that have not been approved.

7. The same relief has to be provided to the putative class or others in the same situation. It continues for all cases filed between 1 October, 2020 and 31 October 2021.

What Are The Terms of Settlement?

• The settlement was signed on the terms that the parties mutually release their claims and that the consent order remain binding irrespective of what any court of law might take up into consideration.

• The USCIS also maintained that the consent order should not be considered an admission of guilt and it cannot be used in the future as an evidence of guilt against the agency.

• The order should be deemed as final and supersedes any oral or previous communication.

What About The Legislation to End OPT?

A legislation has been re-introduced in the US House of Representatives to eliminate the OPT program. Congressmen Paul Gosar, Mo Brooks, Andy Biggs and Matt Gaetz have been instrumental in introducing the Fairness for High-Skilled Americans Act, which looks to amend the ICE's existing policy on the OPT.

The Fairness for High-Skilled Americans Act was first introduced in the 116th Congress.

twitter/@RepGosar

Supporters of this legislation believe that "OPT circumvents the H-1B cap", takes jobs of citizens away only to replace them by cheap foreign labour who do not have to pay taxes.

"This week I sponsored a 10-year-old moratorium on immigration until we can figure out how to put Americans first," Paul Gosar wrote on Twitter.