Recently I have found myself regularly consulting with clients on the pros and cons of taking day 1 CPT to enable a student to continue working. The typical scenario is when a student has exhausted their OPT/STEM OPT options and wants to continue working for the same employer. There are a handful of Universities offering day 1 CPT. These Universities allow the student to work 40 hours a week and still attend classes. But is this a good idea?
My personal view is that day 1 CPT is not a good idea and those that have either taken it or are considering it are seriously jeopardizing their future in the US. CPT is supposed to be academic and is not intended to allow a student to simply continue working. Most Universities do not allow work in the first year at all. This not only applies to foreign students but also to US citizens. Studying for a degree is not easy and it certainly should not be possible to work a 40 hour week while studying. However, this is exactly what day 1 CPT is enabling students to do.
So why are some Universities offering this as an option? Well first of all, note that most Universities do not offer day 1 CPT. Let’s look at what the regulations actually say:
8 CFR 214.2(f)(10)
(10) Practical training. Practical training may be authorized to an F-1 student who has been lawfully enrolled on a full time basis, in a Service-approved college, university, conservatory, or seminary for one full academic year. This provision also includes students who, during their course of study, were enrolled in a study abroad program, if the student had spent at least one full academic term enrolled in a full course of study in the United States prior to studying abroad. 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.
So eligibility for CPT requires the completion of 1 full academic year which basically means 2 semesters. This is why most Universities are not offering day 1 CPT. Nowhere in the regulations will you find reference to day 1 CPT. The Universities that are offering day 1 CPT have seen a huge increase in their enrollment in the past few years because they have identified a need of a certain group of people. They have specifically designed programs to cater for International students who have exhausted other options for work.
Just because the University has issued an I-20 authorizing you to take day 1 CPT doesn’t mean that it is properly authorized in the eyes of USCIS.
The two Universities I have come across most frequently are University of Cumberlands and Campbellsville University. Most of the students that I have spoken with who have enrolled at one of these Universities, have already completed 12 to 36 months of practical training and have enrolled as a last option in order to continue working.
So what are the consequences of taking day 1 CPT?
Let’s say for example that you are a student who has taken day 1 CPT as of January 7, 2019. You intend to apply for an H-1B in FY 2020. Your application gets filed on April 1, 2019 and USCIS issues an RFE on say July, 1 2019. The RFE gets responded to with all the necessary documents and you receive a decision in say September, 1 2019.
Even if USCIS approves the petition, they deny your request for a change of status from F-1 to H-1B on the basis that you have taken day 1 CPT, which they consider to be a violation of your F-1 status. This means you would have to leave the US and go for visa stamping in order to re-enter in H-1B status.
However, in view of the unlawful presence memo issued on August 9, 2018 students can accrue unlawful presence when they fail to maintain their nonimmigrant student status. You are now out of status and because unlawful presence accrues from the date of the violation you have accrued unlawful presence from January 7, 2019, the day you took day 1 CPT. This means you have accrued 237 days of unlawful presence (January 7, 2019 until September 1, 2019). You are now subject to a 3 year bar when you leave the US. When you go to the Consulate to get your H-1B visa stamped you will be denied a visa on the basis that you are subject to that 3 year bar. Imagine if it takes USCIS even longer to issue a decision. You get this on January 8, 2020. Now you have more than 1 year of unlawful presence and you are subject to a 10 year bar. Any dream of living and working in the US is now over.
As you can see from the above example, taking day 1 CPT causes more problems that it solves. In this past year I have seen multiple denials from USCIS on this issue, which is why I want to inform individuals of the dangers of taking day 1 CPT.
The other question I get frequently asked is whether if I study for a second Master’s degree, having taken OPT on my first Master’s degree, whether I can take CPT if I complete two semesters. Even though this is not day 1 CPT, the regulations also state that someone who has done 12 months practical training is only eligible for further practical training if they move to a higher education level. This means someone who has completed OPT on their first Master’s would only be eligible for further practical training if they study for a PhD. If you are considering taking day 1 CPT then think again. Is it really worth jeopardizing your future in the US to continue working? If you have already taken day 1 CPT then consult with an experienced Immigration Attorney ASAP. If you took day 1 CPT on or prior to August 9, 2018 then there is a good chance you have violated your status and are accruing unlawful presence. 180 days from August 9, 2018 is February 5, 2019. The 3 year bar is triggered by having accrued more than 180 days of unlawful presence, but less than 1 year. This means to avoid a 3 year bar you need to leave by February 5, 2019. However, to avoid a difference of opinion with a Consular officer as to the exact date I recommend leaving by February 4, 2019.
If you have read the above and are wondering if all CPT is unlawful then don’t fret. CPT taken under the right circumstances is perfectly lawful and will not result in a violation of your F-1 status. If you have completed 2 semesters and are undertaking an internship, for example in the summer, using CPT to enable you to apply the knowledge from your course to a more practical setting, then there is nothing wrong with this at all. This is assuming that this is your first practical training and is not being taken as part of a second Master’s degree as described above.
Original post from immigrationnews.online on January 24, 2019 by attorney Chris Prescott.