F-1 students have graduated from a Master’s program sometimes find themselves in the unfortunate position of having completed OPT but not having been selected in an H-1B Cap lottery. They would have spent considerable time, money and effort into establishing themselves in the United States, and in an attempt to remain in the U.S. or continue employment with their OPT employer, will enroll in a second Masters program that offers them CPT on day one. This can be problematic for the following reasons.
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. There are two types of practical training available:
(i) Curricular practical training. An F-1 student may be authorized by the DSO to participate in a curricular practical training program that is an integral part of an established curriculum. Curricular practical training is defined to be alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training. Exceptions to the one academic year requirement are provided for students enrolled in graduate studies that require immediate participation in curricular practical training. A request for authorization for curricular practical training must be made to the DSO. A student may begin curricular practical training only after receiving his or her Form I-20 with the DSO endorsement.
It has been the practice for Schools to interpret the prohibition in 8 CFR 214.2(f)(10)(i) against post-completion training for students who had already completed one year of full-time CPT, to mean that there was no prohibition against CPT for those who had already completed one year of full-time practical training.
Therefore, schools have routinely approved CPT for students enrolling in a second masters program even if the student had previously, completed one year of practical training at the same educational level. It turns out that USCIS officers are now often interpreting the statement within 8 CFR 214.2(f)(10) “… 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. …” to mean students that have completed one year of any kind of full-time practical training are ineligible for any kind of practical training including CPT unless they enroll in a higher education level. So if they had already completed a Masters program with one year of practical training, they are ineligible for any more practical training unless the join a program that is at a higher level than a Masters. USCIS may find those who have worked on CPT in a second master’s to have violated their status and so ineligible for a change of status.
In addition, on August 9, 2018, USCIS implemented a new policy of treating those in F-1 status who have violated their status as gathering unlawful presence. Therefore, where the student tries to consular process, the may be found to have accrued more than 180 days of unlawful presence if they have remained in the U.S for 180 days past August 9, 2018, without maintaining valid status. Such a finding will result in being barred from entering the U.S. for three (3) years. If the student has remained in the U.S. for more than 365 days after violating status they would be barred from entering the U.S. for ten (10) years.
We have to wait for March 26, 2019 to hear the results of the law suit filed in North Carolina Federal Court over the Unlawful Presence Memo to see if those who need to consular process, can return without having the 3/10 year bars applied to them.
There are several issues with USCIS’s new interpretation of the regulations:
The express prohibition in 8 CFR 214.2(f)(10)(i) against post-completion training for students who had already completed one year of full-time CPT seems to indicate there is no prohibition against more than one-year of CPT. The use of ” or more” in the 8 CFR 214.2(f)(10)(i) sentence “Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training” seems to indicate more than one year of practical training is permitted. There are some graduate programs that routinely require more than 12 months of CPT as an integral and mandatory part of the program.
SEVIS and ICE permit approval of more than 12 months of CPT.
USCIS has routinely approved a full 12 months of OPT for those had completed less than 12 months of full-time CPT.
A change in interpretation of the Regulations, to state more than 12 months of CPT is not permitted, when there has been no clear guidance to contrary, from ICE or USCIS raises issues of procedural due process for those who have relied on, many years of a different interpretation of the regulation.
ICE has been assigned the role of monitoring Sevis and DSOs have been assigned the authority to approve CPT but USCIS is taking an interpretation that has no basis in ICE’s procedures or guidance to DSOs.
The courts tend to defer very heavily towards an agencies interpretation on its own regulations, See Auer v. Robbins, 519 U.S. 452 (1997). The chances of getting a court findng against USCIS’s current interpretation are unpredictable at best. But a court may find the USCIS or ICE are required to take implement procedures that provide adequate notice before enforcing such a significant departure in the interpretation of the regulations.
It should be kept in mind that CPT within the first year of a program is always problematic unless one has extensive evidence to establish it was an integral part of an established program, that requires immediate participation. Additionaly, it is always necessary to establish that the CPT was related to education.
The purpose of the new policy is to stop students from joining Masters programs that offer day one full-time CPT, with the aim of being employed rather than to actually get an education. USCIS decisions on requests for a change of status where CPT /OPT has exceeded 12 months, has been unpredictable and inconsistent. Attorney’s report that clients with some of their clients have cases approved, while others with identical situations, where the same arguments were made in response to an RFE have been denied. Under such circumstances, it may be best to depart the U.S. before gathering 180 days of presences past August 9, 2018 in CPT or OPT that may be considered a violation of status. It is a good idea to only use part-time CPT, because there is protection within ICE guidance that states part-time CPT does not affect OPT. It may also be preferable to join a P.hd. program instead, so that one is not affected by the limitation on practical training at the same level.
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