USCIS recently updated its policy manual for international students and their dependents.  A major positive development has been the agency’s recognition that international students can continue to qualify for student status even if they have been sponsored for employment or family-based green card petitions.  The agency indicates that so long as the international student can demonstrate a foreign residence that they do not intend to abandon, they can be sponsored for a green card based on employment or family.  This is particularly welcome for international students who are beneficiaries of severely backlogged family and employment-based petitions and who worry about how to maintain the nonimmigrant intent requirement for student status with an immigrant petition on their record. 

The new guidance also clarifies that international students working for companies they helped found could qualify for STEM OPT.  The startup must still comply with the student training plan requirement, pay the international student, and register for E-Verify.

Unfortunately, USCIS remains strict about its requirement that the application for employment authorization (EAD) for Optional Practical Training (“OPT”) be filed within 30 days of the student’s Designated School Officer (DSO) issuing the endorsed Form I-20 or 60 days for the STEM OPT extension application. If the EAD application is filed after the 30- or 60-day window, the application will be rejected. USCIS provides no exception to this requirement, which is extremely harsh for an international student who may miss the 30 or 60-day timeline because they simply weren’t aware of how firm that timeline is. 

While the agency’s policy manual is not binding law, it does provide transparency on the agency’s policies and practices.  USCIS officers should follow the manual when adjudicating requests for benefits, although they have discretion when making their final decision. 

If you would like to discuss this development or any other immigration matter further, please don’t hesitate to contact me.