News & Insights

Is Day 1 CPT Still A Problem?

Having previously written two articles on Day 1 CPT (Curricular Practical Training) I keep being asked whether I would recommend Day 1 CPT and what are the potential consequences of taking it.

If you haven’t read my previous articles, please find the links below:

https://www.patellegal.com/why-day-1-cpt-is-not-a-good-idea-and-can-cause-more-problems-than-it-solves/

https://www.patellegal.com/day-1-cpt-revisited/

Please note that the first article was written during a time when USCIS had a real issue with Day 1 CPT and was issuing decisions stating that Day 1 CPT was a violation of F-1 status.  Combined with this USCIS had tried to change the rules on unlawful presence by stating that unlawful presence took effect from the day the violation occurred.  As a result, individuals found themselves in a position where USCIS was contending that they had accrued months/years of unlawful presence and were in the US in violation of their status.

In contrast, the second article was written only two months ago, but I still advised caution because it was difficult to know how the new administration would view day CPT for change of status applicants during the new H-1B cap season.

However, I am happy to report that we are now seeing approvals for Day 1 CPT applicants, not only for the underlying H-1B itself but also for the change of status.  While Day 1 CPT wouldn’t mean a denial of the H-1B itself, in some cases it could mean getting their case approved for Consular processing.  Consular processing has become a nightmare since the pandemic, but it has become even more problematic with the India travel ban.  Therefore, getting the change of status approved is just as crucial as getting the underlying H-1B approved.

When submitting documentation, it is important for Day 1 CPT applicants to ensure they have sufficient documents to demonstrate that they have been maintaining their status, by attending classes, etc.  In some cases, applicants prefer to provide as much documentation as possible upfront to try and avoid a Request for Evidence (RFE).  Whilst we have seen some approvals, without RFEs, we are still seeing some RFEs from USCIS requiring applicants to demonstrate maintenance of status.

If you receive such an RFE you should work with an experienced Immigration Attorney to ensure your case is approved for a change of status and not consular processing.  In the event that your case is approved for Consular processing, you can always re-submit a change of status application if you believe you can overcome the deficiencies in the first application.  For help with this or the initial RFE please contact PLG Partner Chris Prescott at cprescott@patellegal.com

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