H-1B approval for CP where F-1 out of status from Post OPT CPT in the same degree level as OPT

An H-1B beneficiary should be prepared to consular process the H-1B where U.S. Citizenship and Immigration Services (USCIS) approves the underlying petition but denies a change of status request. Where, the F-1 had 12 months of Optional Practical Training (OPT) followed by another 12 months of Curricular Practical Training (CPT)at the same degree level. 8C.F.R.§214.2(f)(10) provides ‘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’ and 8C.F.R.§214.2(f)(10)(i) provides a student is ‘ineligible for post-completion academic training at the same degree level’.

An F-1 student’s use of 12 months CPT forbids 12 months of OPT. The above application is the reverse of that. 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.

On the above facts USCIS may issue a Requests for Evidence (RFE) and ultimately deny the change of status request.

Likely documentation requested from the student and the CPT-granting institution is to substantiate the validity of the CPT, such as (but not limited to):

• 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.