Last year, I prepared an H-1B petition for a company that
wanted to hire a woman, “Gloria” (not her real name of course) as a financial
advisor. Unfortunately, that petition did not get selected in the lottery.
Therefore, following the end of her optional practical training (OPT), Gloria
enrolled in a local college that provided an immediate curricular practical
training (CPT). She therefore was able to remain in lawful status until this
year. At that time, in April of this year, I prepared another petition by this
same company for Gloria, and asked for change of status processing. The
petition was selected and later approved, and Gloria is now working at that
company in H-1B status.
This strategy of using CPT as a “bridge” to the next H-1B
filing is a common one. Doing so allows a person to remain in status in the
U.S., to work or continue to work for an employer (for example, the same
employer as during OPT) and thus spares the person the trouble and expense of
leaving, then later re-entering the U.S. However, if you are doing so now or
are considering doing so, please keep the following pointers in mind to avoid
potential problems. You and others know about this idea, but so does the
immigration service. Therefore, they could review a CPT-to-H-1B petition more
carefully than an OPT-to-H-1B petition.
If the immigration service believes that you failed to
maintain the condition of CPT, or believes that the CPT is invalid, then they
could deny any change of status associated with an H-1B petition.
For this reason, I strongly suggest you consider the
following points in connection with any plans for CPT.
·
Choose a reputable school
Be careful when you choose a school. In particular, you want
to avoid a school that is similar to Tri-Valley University. That school’s
founder was sentenced to federal prison on charges of immigration fraud. The
school allegedly issued fraudulent I-20s to students but never had true
requirements for admission or graduation. As a result of the shutdown of the
school, many students faced removal from the United States. https://en.wikipedia.org/wiki/Tri-Valley_University
For this reason, thoroughly investigate any school you are
considering for CPT. At a minimum, the school should be accredited by the
respective regional accreditation agency for the school’s location. Here is a
directory of such agencies: http://www.chea.org/Directories/regional.asp. Of course, your investigation should include
more than just confirming such accreditation. However, the lack of such
accreditation by a school should make you pause before considering that school.
Not surprisingly, Tri-Valley University lacked accreditation.
You also could check online reviews of the school, such as
on Yelp, or talk with current or former students or with the school’s
international student advisor(s).
·
Comply with the conditions of the school and
respective courses
Just as with a “regular” F-1 program, make sure you comply
with all conditions of the school and courses you are taking. Attend all
classes and complete all your assignments. According to immigration
regulations, you must be making “normal progress toward completing a course of
study.” If the immigration service determines, while reviewing your H-1B
petition, that you failed to make such progress, they could conclude that you
failed to maintain your F-1 status.
·
Keep evidence of attendance
Make sure you have evidence that you attended classes, for
example, a sign-in sheet for the class sessions for your course. In Gloria’s
case, in addition, we submitted a statement from the person who drove her, and
included dates, times and starting and ending places. We also included
gasoline, restaurant receipts and credit card statement entries that
corresponded with times she was attending classes. This evidence will help
convince the immigration service that you did attend classes.
·
Consider consular processing as an alternative
to change of status, if necessary
Let’s suppose that in fact you are approved for H-1B status
as a result of your employer’s petition filing. While this news is great, it is
not the end of the story. You probably want to receive your H-1B status while
remaining in the U.S., that is, without having to leave the U.S. In other
words, you want to have this H-1B status via a change of status from F-1 to
H-1B.
Therefore, USCIS must make TWO decisions regarding your
petition. First, they must decide if you are eligible to have H-1B status,
based in large part on the complexity of your job and your qualifications.
However, they also must decide if you are eligible to receive a change of
status. Suppose, for example (God forbid) USCIS finds a problem with your CPT,
or problems with your F-1 status in general. In this case, even though they
might separately grant you H-1B status, they still would deny the change of status
portion of your petition. The result would be a requirement that you leave the
U.S. and return with an H-1B visa in order to have your H-1B status.
Furthermore, this denial of the change of status means that
you are unlawfully present following the denial. In this case, you are best
served by leaving the U.S as soon as possible. Otherwise, depending on your
length of unlawful presence, you could be subject to a bar of up to 10 years on
returning to the U.S. you most likely would be limited to only your home
country as the place for getting your visa. You most likely would not, for
example, go to Canada or Mexico for that visa, unless those countries were your
home countries.
You can avoid the risk of being denied a request for change
of status by simply not asking for it in the first place. In other words,
rather than ask for a change of status for the processing of your H-1B
petition, you instead request consular processing. Under this type of
processing, you and your employer specify, on the petition, the embassy or
consulate that USCIS should notify if and when they approve your petition.
Following such approval, you would leave the U.S., go to that consulate or
embassy, receive an H-1B visa stamp, then return to the U.S. using that visa.
By following these steps, you can increase the chances of
changing status from F-1 CPT to H-1B.
The above information
does not constitute legal advice and does not create an attorney-client
relationship.
