H-1Bs for Foreign National Seeking Second Degree at Institution Authorizing Immediate CPT

Background Information

Recently, there have been a lot of examples indicating that U.S. Citizenship and Immigration Services (“USCIS”) has taken a restrictive reading of 8 C.F.R. § 214.2(f)(10) and as a result, it has issued a limited number of Requests for Evidence (“RFEs”) and denials for H-1B change of status petitions where the foreign national has used more than 12 months of combined Curricular Practical Training (“CPT”) and Optional Practical Training (“OPT”) at the same degree level. USCIS claims that by accepting more than 12 months of CPT and OPT at the same educational level, particularly where CPT occurs after the foreign national has used same-level OPT from a degree program at a different institution, the foreign national has failed to maintain valid F-1 status. In doing so, USCIS is interpreting the overall 12-month limitation of practical training eligibility referenced in the regulatory provision as encompassing both CPT and OPT.

While this appears to be a new interpretation of 8 C.F.R. § 214.2(f)(10) by USCIS, it does not yet appear to be affecting all cases. Instead, USCIS appears to be targeting RFEs and denials at cases where the foreign national is enrolled in a second master’s degree at an institution that authorizes immediate CPT. In other words, these tend to be cases where a foreign national, upon completion of his or her OPT, continues working for the OPT employer by enrolling in an institution that will immediately authorize CPT to do so.

Practice Tip

H-1B applicants fitting this fact pattern should obtain following documentation to substantiate the validity of the CPT:

• Official copies of the student’s current transcript;
• Copies of degrees and/or certificates issued to the student showing course completion;
• Receipts for tuition payments, books, parking passes, and school supplies;
• Student’s school ID;
• Course syllabi or outlines for the student’s current program;
• Documentary evidence to show that the student was physically attending the courses in which s/he was enrolled (e.g. transportation receipts, confirmed transportation reservations, attendance records, etc.);
• Utility bills/rental contracts or other receipts documenting the student’s current residence;
• Confirmation as to the number of online/distance education class credits the student was/is enrolled in for the duration of his/her studies;
• A letter from the school, that establishes that the student has been engaged in a full course of study and is working towards program completion; and
• A letter from the school or the employer explaining how CPT is directly related to the academic program and how it will form an integral part of that program.