Monday, October 17, 2016

Are you using CPT as a bridge to the next H-1B filing?

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.

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:  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.

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