Recent processing time trends at the U.S. Citizenship and Immigration Service (USCIS) are raising concerns for both Employers and F-1 visa holders relying on automatic extensions of work authorization while awaiting the processing of their F-1 STEM Employment Authorization Document (EAD) extension applications.
While USCIS published processing time data reflects that 80% of F-1 EAD applications are processed within 2 months, our observations suggest a notable shift towards longer processing times, ranging from 4 to 6 months. This shift underscores the need for careful consideration and proactive measures among those relying on automatic extensions of work authorization.
Why is a potential increase in processing times problematic?
- The extension applications for a STEM EAD may be filed only within 90 days of the current F-1 EAD expiration date.
- The auto extension based on a timely extension filing is only good for 180 days beyond the initial F-1 EAD expiration date.
- If USCIS takes up to 6 months to process the extension application and it was filed closer to the expiration date of the initial EAD, there is an increased risk of a gap in work authorization.
Who should apply for STEM Extensions & When?
STEM OPT EAD Eligibility: F-1 students who have completed a degree in a qualifying STEM field are eligible to apply for a STEM OPT extension. The initial OPT period allows for up to 12 months of work authorization, and the STEM extension provides an additional 24 months.
When to Apply: Students should apply for the STEM OPT extension during their initial OPT period. The application can be submitted up to 90 days before the expiration of the initial OPT EAD.
How to Apply: To apply for the STEM OPT extension, students must complete and submit the Form I-765 (Application for Employment Authorization). Along with this form, they need to submit supporting documents, including the Designated School Official (DSO) endorsed Form I-20 and the required fee.
Employment Considerations
While USCIS recently provided extended automatic extensions of certain EAD categories from 180 to 540 days, notably absent from this list were F-1 STEM EADs. The F-1 EAD automatic extension remains at the standard 180-day auto-extension period.
If the new STEM EAD card is not issued and available for an employee to present as proof of continued work authorization before the 180-day mark, they will be at risk and will have to stop working until they are able to present appropriate documentation confirming work authorization before their employment may continue.
Options for Consideration to Reduce the Risk of a Gap in Work Authorization
- File Early! Prepare documents and complete the necessary training plan paperwork and Form I-20 endorsements with the DSO as early as possible to file the extension application early during the 90 day filing window.
- Premium Processing: STEM extensions can be filed or "upgraded" to premium processing. This expedite option means USCIS is required to process the STEM extension application within 30 business days. The USCIS premium processing fee is $1,685.
- USCIS Case Inquiry: The Seyfarth Global Immigration and Mobility team often assists clients with guidance on leveraging USCIS' case inquiry options. If the expedite premium processing fee is not feasible, a case inquiry through the online process available on the USCIS website may help. While the effectiveness of this service may vary, it is definitely something worth consideration.
While there are evident improvements in USCIS service levels and processing times, consistency remains a challenge. Anticipating unforeseen circumstances and staying vigilant about trends remains crucial for effective planning and proactive measures to mitigate employment disruptions. The Seyfarth Global Immigration and Mobility team will continue to monitor developments and trends with USCIS.
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