Filing for H-1B change of status while working as F-1 student under Curricular Practical Training (CPT)
The regulations allow international student visa holders (F-1 students) to participate in practical training and accept employment while still under F-1 status if the F-1 students have been lawfully enrolled on a full-time basis in a qualified educational institution for one full academic year. The regulations provide that 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. 8 C.F.R. 214.2(f)(10). There are two types of practical training: Curricular Practical Training and Optional Practical Training.
– Curricular Practical Training (CPT) allows F-1 students to participate in paid off-campus employment in their academic field. 8 C.F.R. § 214.2(f)(10)(i). CPT is defined as employment which is related to the program of studies and is an integral or important part of the curriculum. It can include alternative work/study, internship, cooperative education, or any other type of internship or practicum which is offered by sponsoring employers through cooperative agreements with the school. For an F-1 student to lawfully participate in CPT, the following requirements must be met:
- CPT must be an integral part of an established curriculum;
- The Sponsoring CPT employer must be in a cooperative agreement with the University;
- Students must complete a full one year of study before being eligible for CPT. Exceptions to the one academic year requirement are provided for students enrolled in graduate studies that require immediate participation in CPT (also called Day-1 CPT); and
- Reception of Form I-20 with the DSO endorsement.
– Optional Practical Training (OPT) allows for temporary employment directly related to the student’s major area of study. While under specific circumstances it can be allowed while the international student is still in school, OPT is usually permitted while school is not in session (during student’s annual vacation or after completion of the course of study). The regulations permit a 24-month extension of OPT for a science, technology, engineering, or mathematics (STEM) degree.
After completion of a STEM degree, many F-1 students apply for OPT, then for the STEM OPT extension. While doing these programs, they apply to be classified as H-1B, temporary worker visa holders. Unfortunately, many applicants do not get to the approval stage of their H-1B applications. For some, it is because they are not selected through the H-1B visa lottery. For others, the government denies the petition because they did not meet the specific requirements for H-1B classification. Many of those applicants chose the option to re-enroll in school and apply for CPT to work while in school.
The following notes focus on some issues raised by the participation in CPT when applying for H-1B visa classification after completion of OPT.
The main issue an international student in the situation described above may face is “Day-1 CPT”. The regulations provide that a student must complete one full year of study before being eligible for CPT. An international student starting CPT as soon as school starts will have to prove that he or she falls within the limited exception: (1) he or she is a graduate student, (2) he or she enrolled in a program requiring immediate participation in CPT. USCIS is very reluctant in finding that a particular program requires immediate participation in CPT. It is therefore imperative for an international student in this situation to consult an experienced immigration attorney. Please also refer to the article on Day 1 CPT written by our Senior Immigration Attorney via the link below:
Multiple years of practical training at the same educational level
USCIS has issued a lot of Requests for Evidence (RFE) with an issue titled: “multiple years of practical training at the same educational level.” Many have wondered how to respond to these types of RFEs.
Under the regulations, 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. 8 C.F.R. 214.2(f)(10). USCIS has denied many changes of status requests based on these provisions of the regulations.
An international student planning on participating in CPT should absolutely enroll at a level of education higher than the one he or she participated in when she was approved for OPT.
If you have received an RFE with this issue, contact Patel Law Group, and the experienced immigration attorneys will help you respond to the RFE.
Participation in more than one year of CPT
In some cases, USCIS has raised issues when students applying for H1B change of status have participated in more than one year of CPT. It seems that USCIS has taken the position that a student may only be granted a total of 12 months of any type of practical training. The only logical explanation is that USCIS considers that OPT and CPT are the exact same. The particular CPT regulations, however, provide that students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training. 8 CFR § 214.2(f)(10)(i). This should normally mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any post-completion practical training after graduation.
Given USCIS’ current trend, international students who have participated in more than one year of CPT and who are applying for an H-1B change of status should consult an experienced immigration attorney.
Contact the Immigration attorneys at Patel Law Group for a consultation, either Monique Mutombo at firstname.lastname@example.org or Chris Prescott at email@example.com.