2 years ago I wrote an article on the problems of taking Day 1 CPT and thought it was time to revisit this issue. Click here to see my previous article.
At the time of writing my previous article, USCIS was taking a very firm stand on Day 1 CPT cases. In fact, students applying for a change of status to H-1B, who had taken Day 1 CPT faced a denial, which at the time had extremely harsh consequences.
This was due to a Trump memo issued on August 9, 2018, which stated that students would accrue unlawful presence on the day that they failed to maintain their nonimmigrant student status. This was a change from previous policy and meant that certain individuals were accruing unlawful presence going back months or even years. Even if their H-1B petition was approved, because the change of status was denied, based on them having taken Day 1 CPT, they were forced to leave the US to go for consular processing. However, many of these students had been on Day 1 CPT for some time meaning that they had accrued, in some cases, more than 180 days of unlawful presence, which would then subject them to a 3- year bar when leaving the US. For those with more than 1 year of unlawful presence, they were facing a 10- year bar.
Fortunately, the August 9, 2018, unlawful presence memo was blocked by a Federal Court and is no longer in effect. This means individuals do not accrue unlawful presence until there is a finding by USCIS or an Immigration judge.
So, is it okay to take day 1 CPT? Most students taking day 1 CPT have exhausted other employment options including OPT and STEM OPT. Therefore, by enrolling in a University that offers day 1 CPT the student can remain in the US and continue working.
Although certain Universities continue to offer day 1 CPT, this form of work authorization still finds disfavor with USCIS. In fact, in the majority of cases where a student is on Day 1 CPT and applies for a change of status to H-1B, USCIS typically issues an RFE questioning maintenance of status and asking for evidence that CPT is required as part of their course and that the student has maintained a full course of study.
Whilst we have been able to get many the change of status petitions approved where the student is on Day 1 CPT, there are still some cases where USCIS will approve the case for consular processing. Although there is no issue in terms of unlawful presence, as this would only accrue from the day after the decision finding a status violation, going for consular processing during COVID 19 has been very difficult for many. Consulates are backed up with appointments due to prior closures and limited staff. Furthermore, in countries like India, the number of COVID 19 cases continues to rise, which means we might see more Consulate closures in the future. It is therefore important to try and avoid approval for consular processing where possible.
If you are on Day 1 CPT or are considering taking it, you should consult with an experienced Attorney to discuss how this could affect your status in the future. Please feel free to reach out to PLG Partner, Chris Prescott, at cprescott@patellegal.com