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Not Selected In The H-1B Lottery? Is Day 1 CPT The Only Option?

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It’s that time of year again when I find myself speaking to people who have not been selected in the lottery and need to consult with PLG to find out whether they have any other options.  The majority of people we speak to are nearing the end of their OPT or Stem OPT and want advice on how to remain in the U.S. and continue to work.

Should I switch to H-4?

Not everyone has the same options, and this will largely depend on your individual circumstances.  For example, if you are married to someone on H-1B, you will have the option to switch to H-4.  Depending on whether you wish to work this may not be a great option.  Unless your spouse has an approved I-140, then switching to H-4 will only allow you to remain in the U.S.  If your spouse does have an approved I-140, switching to H-4 may be attractive as this will allow you to apply for unrestricted employment authorization (EAD).  The downside to this is the wait time to receive the EAD.  USCIS has a huge backlog of EAD requests, and you are looking at 8-12 months or longer to receive work authorization.   H-4 applicants are however now eligible for the 180-day automatic extension, provided they are in continuing H-4 status.  Also worth noting is that USCIS’S new rule to extend premium processing to other categories does include the I-539 and the I-765.  This means at some point in the future you may be able to change status and apply for an EAD under premium processing.  However, when this will be available remains to be seen.

Should I apply for Day 1 CPT?

We talk to more clients about Day 1 CPT than any other issue, especially at this time of year.  We have previously written 3 articles on Day 1 CPT.  They can all be found here below.  Don’t be freaked out after you read the first article.  You need to read all three in order to fully understand where the current administration stands on Day 1 CPT.

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/

https://www.patellegal.com/is-day-1-cpt-still-a-problem/

For those wanting to continue working with the same employer, Day 1 CPT may be the best option.  Most people’s primary concern is whether Day 1 CPT is legal and whether it will cause issues further down the line.

The Department of Homeland Security (DHS) is aware of all Day 1 CPT universities and allows them to operate and offer Day 1 CPT.  However, under the Trump Administration USCIS claimed Day 1 CPT was unlawful.  If this was true, why did DHS not close these Universities?  Because this was just an attempt by the previous Administration to reduce legal immigration.

There is nothing wrong with Day 1 CPT Universities and experience has taught us just that.  Over the last 12-18 months we have filed numerous change of status applications to H-1B where the candidate has been on Day 1 CPT, and all (except for one case) of these applications have been approved. We would estimate however that 70% of these cases get a Request for Further Evidence (RFE) asking whether the student has maintained their status by working and attending classes.  However, students on OPT and STEM OPT also receive similar RFEs, so Day 1 CPT is really no different.

If you are considering Day 1 CPT universities, ask them how they can help in the event of an RFE.  Some Universities do a great job of providing letters to the students confirming why Day 1 CPT is required and confirming that the student is attending classes, etc.

The one thing to bear in mind is that if you take Day 1 CPT you need to ensure that the job you take is closely related to your field of study.  If it’s not an obvious match USCIS could deny your case stating that you were working in an area not related to your study.  This is the one case which we received a denial for.  Just because the University issues the I-120 doesn’t mean that it’s related.  It’s your responsibility to make sure you are working in an area that is sufficiently related to your degree and quite honestly you are really the best person to make that call.

Other Options

Depending on what field you work in you may be able to obtain a job with a cap-exempt employer.  This includes the following employers:

  1. Institute of Higher education.
  2. A non-profit entity related or affiliated with an Institute of Higher education.
  3. A government research organization.
  4. Non- Profit research organization.

Cap-exempt employers can file H-1Bs at any time of the year and are not subject to numerical limitations i.e., the H-1B lottery.

Studying for another degree is always an option.  This doesn’t have to involve Day 1 CPT.  For example, if you have done a master’s you can always pursue another master’s in a different field or a Ph.D.

Finally, just because you have not yet been selected in the H-1B lottery there is always a chance you may get selected later in the year.  In 2021 USCIS ran a second and third lottery in July and November.  Although there is no guarantee that this will happen again we expect at least a second lottery at some point later in the year.

If you have questions about the above or wish to schedule a consultation to discuss your options, please reach out to us at cprescott@patellegal.com.

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