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 Taral (not verified) on Wed, 04/07/2021 - 16:00 Permalink

I had a follow up question to this topic, how is the stay considered legal on day 1 cpt? As far as I know F1 visa is not renewed after taking admission in new college, also when you live the country you cannot come back even though you are enrolled in day 1 cpt!

I understand day 1 cpt as a legal way of earning in the states and trying for H1b luck but the legal stay is still a issue? I maybe wrong. Happy to get everyone’s comments.

Submitted by Sudheer (not verified) on Thu, 04/08/2021 - 13:52 Permalink

If a STEM student studies under graduation and masters degree continuously in usa (2015 to 2019 under graduation and 2019 to 2021 masters degree in usa ) can he get 2 years OPT and 4 years CPT .Thank you

Submitted by Trilok Kataria (not verified) on Thu, 06/10/2021 - 15:40 Permalink

I had H1B issued on Feb 01, 2018 and valid till expiration date Oct 31, 2018, however I have never traveled on this visa to the state, so basically it has never been used. Is it true that if my new employer is ready to transfer my H1B then I will not have to go through the H1B lottery again??

Thanks

Submitted by Guilherme (not verified) on Sun, 07/04/2021 - 20:44 Permalink

I’m under a full-time CPT at this moment while working for a multinational company that has been applying for my H1-B every year. My CPT expires in Jul/2022, supposing I get picked in the H1-b lottery next year (2022 - April), can I drop my CPT (Master's Program) right away?!

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