H-1B and CPT

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Can CPT be a good way to gain experience in addition to or instead of H-1B?

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In my opinion, yes. CPT is a good option. But, the USCIS has been taking the position that after exhausting their OPT, the students should not be allowed any CPT. If they use CPT, USCIS may try to deny them status within the USA, requiring them to leave the USA and return only when an H-1B visa stamp is procured. While that is not any more difficult than an H-1B petition in which no CPT was involved, it is nonetheless a hassle.

I also think that the USCIS interpretation is incorrect.  There is no limit on CPT.  It is an integral part of the students' education.

The F-1 practical training regulations contain the following provision:

"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. Students in English language training programs are ineligible for practical training. An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study."
8 CFR 214.2(f)(10)

USCIS has been interpreting this language to mean that the 12 months of practical training applies to CPT and OPT combined.  For instance, if you obtain 7 months of full-time CPT, you would then have only 5 months of OPT remaining. 

This interpretation is in direct contradiction to over a decade of policy, which has consistently held that the CPT time is deducted from the OPT only if: (i) CPT was issued for full-time training; and (ii) used for a year or more. If both these conditions exist, then and only then would the OPT ineligibility kick in: 

"... 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)

CPT was always construed as an integral part of your education. It is not based upon an “optional” choice made by students to undertake OPT. There also is no limit on the time CPT can be allowed.  The regulations presume and allow for more than one year of CPT: 

"one year or more of full time curricular practical training" makes a student ineligible for OPT at the same educational level. 8 CFR 214.2(f)(10)(i)

In fact, as noted by several DSO’s SEVP’s Post-Completion OPT Planning Tool uses the computation directly counter to the USCIS illegal interpretation.

Note that if a change of status is denied on this ground, getting an H-1B visa stamping takes care of that.  Additionally, it is highly likely that the USCIS would lose if there is litigation on this issue.

Comments

Submitted by Zoé (not verified) on Tue, 01/04/2022 - 16:54 Permalink

Hello Rajiv,

What will happen if someone apply for i-485 then enrolled in a Day - 1 CPT program? (Concurrently filed AOS and receipt notice received before the CPT start date) Can the I-140 or AOS be denied base on day 1 CPT? If it's denied, Is there an option for consular processing with approved i-140?

Thank you in advance!

This is not an easy answer. There are too many variables. You may want to post this in the next free community conference.

Submitted by Sai Basamseti (not verified) on Tue, 02/08/2022 - 00:27 Permalink

Last Year I got my CPT visa approved and I started for TCS. In October, I got an offer from other organization and I submitted my resignation to TCS giving them a 2 week prior notice saying that my last date of employment would be on November 5, 2021. But that HR missed my email and again on November 16, 2021 when I dropped him an email about the update, he then said that he hasn’t received any email about resignation. Then I sent him the screenshots of resignation email. He said he would put that into system and now when I received employment letter, it states my last working date with TCS was November 16, 2021. How many times I try to tell them I have mentioned my last as November 5, 2021, they still argue that their system has November 16 as my end date and they are not willing to change it. But I am on CPT visa and I have started to work for new organization from November 10, 2021 and also in my cpt application I jave specified the same and got approved I-20 with November 5 as last date from TCS and November 10 as start date of my new employer. So my question is can I work for 2 employers at the same time for More than 40 hours a week just for 11 days during this conflicting period. If I am not supposed to work like that, what steps or action I need to take

I do not have a definitive answer for you. But we can always argue that this is a minimal violation and that too unintentional. Your DSO might be able to give you better guidance.

Submitted by Sai Kumar (not verified) on Sat, 02/26/2022 - 22:17 Permalink

Hi Sir, Last year I came to Us on F1. I'm going to Grad in Aug 2022. I have CPT for 20 hours from Jan to April, 40 hours CPT from May to Aug, can I file for H1b now?

Thanks in Advance

Submitted by Akanksha (not verified) on Wed, 03/30/2022 - 21:48 Permalink

How does the process of changing employers work when you are doing Day 1 CPT? Are there any rules that require to continue with the same employer throughout? Also, if you do get picked for H1B during your degree duration, when does your status change from F1 to H1B?

Thank you for your guidance.

Submitted by Clinton Cheang (not verified) on Mon, 06/06/2022 - 04:37 Permalink

Hello Rajiv, I recently got layoff from my employer but I was lucky enough to get selected for the H-1B lottery. The bad thing is that they still haven't submitted my H-1B petition yet. I am wondering if I have an offer from a different/new employer, will they be able to file the H-1B petition for me?

Submitted by Jaidev Krishnan (not verified) on Wed, 06/22/2022 - 16:51 Permalink

Hello Sir,

Thank you for everything you do. I am planning to enroll in a Day 1 CPT MBA program and was wondering if dropping the course midway will affect my chances of getting a future H1-B or L1-A to green card process?

Also, do you know any way that we can vet a university before joining the program?

Thank you, Jaidev

Submitted by Halak Gandhi (not verified) on Tue, 07/26/2022 - 10:03 Permalink

Hello Sir,

I am enrolling in Day 1 CPT as my H1B was no filed by my company this year. I was wondering when can I apply for H1B while I am on Day 1 CPT? Is it during the course or after I complete the course?

Thank you so much for your time.

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