USCIS Appears to Question Immediate F-1 CPT Validity for Second Degree Students

Our office has been seeing cases and reports that USCIS is changing their approach and starts to question the validity of F-1 CPT work authorization especially in cases where the F-1 foreign student has used more than 12 months of combined CPT and OPT at the same degree level.     Most often this issue is raised during an H-1B petition which includes change of status from F-1 to H-1B.

The Regulations and the Prior Practice

The relevant regulations are in 8 C.F.R. § 214.2(f)(10):

…A student may be authorized 12 months of practical training, and becomes eligible for another 12 months of practical training when he or she changes to a higher educational level…

It appears that USCIS has shifted their stance and has taken a more restrictive reading where they challenge cases where the F-1 student has used more than 12 months of CPT and OPT combined at the same degree level.     The argument appears to be that by accepting more than 12 months of CPT/OPT combined time at the same educational level,  the student has failed to maintain valid F-1 status.   It appears that the focus is on cases where the foreign student, upon completion of their OPT, is enrolled in a second master’s degree at an institution that authorized immediate CPT.

Preparing for USCIS Scrutiny

First, it is important to understand that this kind of scrutiny does not appear to happen in all cases, at least based on our experience and reports at this time.   Also, this scrutiny happens when the F-1 to H-1B petition is filed with a request for a change of status from F-1 to H-1B.

Our office recommend, as part of every request for change of status from F-1 where there is similar OPT/CPT combined period in excess of 12 months,  to consider documenting very strongly the valid authorization and maintenance of F-1 CPT status during the petition filing.

Also, as a strategic consideration, it may be worth filing an H-1B petition with consular processing in order to avoid the scrutiny of maintaining valid F-1 status.  While this may require leaving the U.S. and seeking H-1B stamping abroad, this approach may eliminate the risk of having an F-1 student’s status deemed invalid (without much advance notice) during the H-1B adjudication process.

USCIS Issues Multitude of H-1B Cap RFEs Questioning 12+ Months of Practical Training

Update:  August 19, 2018.     As we anticipated in February of this year, USCIS has taken an active approach in scrutinizing the maintenance of lawful status for F-1 students who have engaged in more than 12 months of practical training during the same educational legal.    The RFEs are mostly issued when there is an OPT term (12 or more months) followed by enrollment at a same-level degree with CPT authorization.

We invite F-1 students or their employers who where the combined OPT/CPT period is more than 12 months after the completion of one degree level to consider very careful the options for filing H-1B petitions especially cap cases.

If you wish to have our office analyze and provide an option or to start a new H-1B work visa petition please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare the strongest possible H-1B petition.