August 29, 2016 Barbara Velarde Director Potomac Service Center U. S. Citizenship and Immigration Services 2200 Potomac Center Drive, Stop 2425 Arlington, VA 20598-2425

RE: Denial of Applications for STEM Extensions of Optional Practical Training

Dear Director Velarde:

NAFSA has been alerted by many Designated School Officials (DSOs)

that applications for STEM Extensions of Optional Practical Training

filed by students pursuant to 8 CFR 214.16(a)(1) and received by

USCIS after May 10, 2016 have been denied. We respectfully request

that USCIS agree to reopen applications that were received in the two-

month period between May 10 and July 23, 2016 and were denied on

the sole basis that the application was supported by a Form I-20

bearing a recommendation for a 17-month STEM OPT extension,

rather than a Form I-20 bearing a 24-month STEM OPT

recommendation. These applications were filed in a somewhat

chaotic period of transition from the prior STEM OPT regulations to

the new STEM OPT regulations and procedures implemented on May

10. During this time DSOs were grappling with new regulations, a

complicated transition process, agency work-arounds established in

both the new regulations and agency guidance, and with delayed

SEVIS functionality until May 14, 2016. Issuing Requests for Evidence

(RFEs) in any cases filed during this period and not yet adjudicated,

and re-opening the denied cases will help ensure that students and

DSOs are not penalized for the harmless error of submitting slightly

late applications in the midst of the chaos.

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In the month preceding the May 10, 2016 effective date of the 24-month STEM OPT

rule, as well as the four-day period following the rule’s implementation, many DSOs

recommended STEM OPT in a SEVIS system that would only generate a Form I-20

bearing a 17-month STEM OPT recommendation, and students filed their Form I-765

application for a STEM OPT extension supported by those Forms I-20. They

reasonably assumed that when USCIS received applications filed with a legacy 17-

month STEM OPT recommendation it would issue an RFE for a 24-month Form I-20,

even if the application was received by USCIS on or after May 10.

Although workarounds had been created both by regulation and by agreement of

USCIS and ICE, they were quite narrow and difficult to explain, sometimes leaving for

inference what could have been more expressly communicated by DHS. For example,

although the regulations required USCIS to issue an RFE for 17-month STEM OPT

applications that were pending as of May 10, they did not clarify that applications

received by USCIS after May 10 would be rejected even if the DSO recommendation in

SEVIS had occurred before May 10. Furthermore, the exception at 8 CFR 214.16(a)(1)

requiring USCIS to issue an RFE in the case of applications pending as of May 10 does

not preclude an adjudicator from issuing a discretionary RFE for a 24-month STEM

OPT recommendation in an application received after May 10.

Under 8 CFR 103.2(b)(8), USCIS has the discretion to issue RFEs in appropriate

circumstances. A 2013 USCIS policy memo established guidance to adjudicators on the

proper exercise of that discretion. The memo “emphasizes that an RFE is not to be

avoided; it is to be used when the facts and the law warrant. If not all of the required

initial evidence has been submitted or the officer determines that the totality of the

evidence submitted does not meet the applicable standard of proof, the officer should

issue an RFE unless he or she determines there is no possibility that additional

evidence available to the individual might cure the deficiency.” In the circumstances

described above, an RFE could have easily resulted in “additional evidence available to

the individual [that] might cure the deficiency.” In these cases that were denied

without an RFE, the DSO could have simply prepared a 24-month STEM OPT

recommendation and reissued a Form I-20 that conformed to the new requirements.

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Therefore, NAFSA asks that USCIS take a more equitable approach to STEM OPT

applications between May 10 and July 23, 2016 and issue RFEs in any cases not yet

adjudicated and re-open the denied cases so that applicants and their DSOs may

provide a Form I-20 recommending a 24-month STEM OPT extension in place of the

previously filed 17-month form. On reopening the denied applications, USCIS could

simply issue an RFE requesting the updated Form I-20, which would allow the student

and his or her DSO to work with the Student and Exchange Visitor Program (SEVP) to

update the student’s SEVIS record to allow the conversion of the prior 17-month

STEM OPT recommendation to a 24-month STEM OPT recommendation.

Several important factors support a favorable exercise of USCIS discretion to reopen

these cases and issue an RFE, including

The nature of the rule change. The 24-month STEM OPT rule was born out of

extended litigation on the 17-month STEM OPT rule, and was overshadowed by a

court-ordered vacatur date of May 10, 2016.

SEVIS readiness. Although the 24-month STEM OPT rule became effective on

May 10, 2016, the SEVIS release needed to update the system so that schools

could comply with the new rule was not available until May 14, 2016.

The range of applications to be considered. Although many applications could

be affected, they are all within a narrow and date range, and show similar

characteristics, such as:

Form I-765 indicates code (c)(3)(C) at item 16

Filed with a Form I-20 bearing a 17-month STEM OPT recommendation

Received by USCIS between May 10, 2016 and July 23, 2016 (this includes

the 60-day filing period during which a 17-month STEM OPT I-20 could

have been produced in SEVIS)

Denied on the sole basis of the application having been submitted with a

17-month STEM OPT recommendation on Form I-20

Lengthy OPT application processing times. USCIS is just beginning to deny

applications that were filed 100 days ago and students will have moved beyond

their grace periods and their SEVIS records have been completed.

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The harsh consequences. The consequences to students is not commensurate

with the nature of the applications’ deficiency. Students eligible for a STEM OPT

extension have invested years of their lives in obtaining a U.S. education. To

deprive them of the opportunity to benefit from this investment and the

experiential learning provided is not only a loss to them, but also to the

development of U.S.-based STEM activity as well.

Thank you for considering this request. We would be pleased to provide additional

information if necessary.

Sincerely,

Sheila Schulte

Deputy Executive Director

Leadership and Professional Development Services