USCIS sent a notice that says OPT denied
Your day was going pretty well. You were planning your life post-graduation, searching for jobs, maybe you were already liaisoning with someone a company that has promised you a job once your post-graduate OPT is approved. But then you went to check your mail and found that USCIS sent you a notice… Inexplicably, the notice said contained the words “OPT denied.” Maybe you panic because your F-1 status is about to run out. That notice looked something like this:
Triaging after your OPT denied notice is in hand
Once the shock wears off you need to conduct a brief but critical triage to establish what could have gone wrong with the application. The notice of opt denial will list some reasons within the body of the form, so you definitely need to digest these. But you also need to think beyond the form. Is everything that USCIS claiming correct? For example, was the I-765 filed past the due date like the USCIS says, or do you have a different version of events? Did your international student office do everything correctly in filing its forms?
The goal of this triage exercise is to establish all of the facts within the notice and all of the relevant facts outside of the notice that also need to be considered. At this point you should either move to confirm the facts you believe may not be within the notice. For example, you may want to call your international student office to find out exactly when they think they filed your application, and ask for a confirmation of that date.
You should also start to think about everyone that may be relevant to contact for your particular situation and put their names in the list.
Deciding whether to file an appeal
Filing an appeal is fairly arduous, even in the best cases. The I-290B form is best filed with a motion, so the form’s 5 page length is quite deceptive in that it makes the appeal seem easier than it is.
So you need to decide whether or not to file one as soon as you get that notice. Depending on your circumstances, the type of appeal you will have to file – appeal to remand, appeal to reopen, etc. – and the amount of work needed to file it will wary. It could take a few days, but it may well require several weeks because of the need to gather evidence and a formal appeal.
Considerations will include costs, work needs, and your immigration status. If OPT is critical to your immigration strategy, that weighs in favor of appealing. If it is just something that would be nice to have, then consider that an appeal takes up to six months to adjudicate and if you lose it, all of the time you’ve spent in country for it to get adjudicated would count against your overstay time, putting you in danger of triggering various immigration bars for future entry into the United States.
You may also be considering other immigration avenues, like marriage. In this case, you might weigh the fact that your family adjustment petition makes your need for OPT mute and so you may very well decide to not file an appeal because you’ll immigrate through the family petition.
When to talk to a professional about your OPT denied notice
In almost every case, an OPT denial is a serious enough matter to contact a professional. Help out whoever you are asking to help you by reaching out early. The more time you give a lawyer to prepare, the better the appeal she can write, and the more money you save because the lawyer does not have to charge an expedited rate to take care of the OPT denied notice for you.