H1B RFE about OPT and CPT status

[James SP]

I received an RFE asking about the following details:

1. Employee-Employer Relationship.
2. During the F1 OPT period is the employment related to the case of study?
3. Current CPT work authorization and how it is related to the case of study?

Employee Employer: I am currently working for employer A and the application was selected under employee B. Do I have to switch to employer B to support the RFE?

During the F1 OPT period is the employment related to the case of study? I completed my masters in non-IT related field but I worked as a IT Systems analyst during this OPT period. Does this leads to denial of the H1B petition or are there ways to support this scenario?

Current CPT work authorization and how it is related to the case of study? I am currently pursuing my second masters and I took up day 1 CPT as a part of the program. This masters program is related to Information Technology (IT) and my work is also in the field of IT. Over the past few weeks I have seen several forums where the USCIS is seeking to change the rules that day 1 CPT work authorization is considered as an Immigration benefit and there fore the individual will acquire unlawful presence. Does this provokes the denial of the H1B petition?

 

Thanks!

[satya2k1]

1. your employer, whoever submitted H1B petition, should have submitted employer-employee relationship document.. If not, then your employer will submit sufficient documentation.

2. You have to provide documentation showing your OPT work related to the field of education you were graduated in.  Otherwise, you have to get a letter from that employer justifying your work on OPT is related to the education in your master's program.

3, You have to get a letter from your current college (professor and DSO) showing that CPT is an integrated part of the curriculum and it is a necessary CPT to complete your master's degree.

[xTDx]

2 hours ago, James SP said:

I received an RFE asking about the following details:

1. Employee-Employer Relationship.
2. During the F1 OPT period is the employment related to the case of study?
3. Current CPT work authorization and how it is related to the case of study?

Employee Employer: I am currently working for employer A and the application was selected under employee B. Do I have to switch to employer B to support the RFE?

During the F1 OPT period is the employment related to the case of study? I completed my masters in non-IT related field but I worked as a IT Systems analyst during this OPT period. Does this leads to denial of the H1B petition or are there ways to support this scenario?

Current CPT work authorization and how it is related to the case of study? I am currently pursuing my second masters and I took up day 1 CPT as a part of the program. This masters program is related to Information Technology (IT) and my work is also in the field of IT. Over the past few weeks I have seen several forums where the USCIS is seeking to change the rules that day 1 CPT work authorization is considered as an Immigration benefit and there fore the individual will acquire unlawful presence. Does this provokes the denial of the H1B petition?

 

Thanks!

1- no but employer B should be able to meet the employer - employee relationship criteria. This doesn't necessarily require you to be on their payroll.  

2- Consult a lawyer, this seems like something a lawyer needs to review to respond the RFE

3- Day 1 CPT is not allowed. And can cause major issues. Practical training may be authorized to  student who has been lawfully enrolled on a full-time basis, in a Sevis approved institution for one full academic year. Consulat   a lawyer. You in theory may already be out of status because of F-1 violation. 

 

[JoeF]

You have used OPT for one year after your Master's degree. Only one year of practical training per education level is allowed, which means that your CPT is illegal, and you are out of status.

[Ken7]

I keep reading that Day 1 CPT is not allowed. That is factually incorrect. While most universities only allow it after a couple of semesters,  CPT's are the University's prerogative and USCIS doesn't control it. Here's a link to further fortify the point, which actually surprisingly specifically says first sem CPTs are allowable :

https://www.ice.gov/sevis/practical-training

There is no question that since it's generally certain kinds of universities (which are SEVIS approved though) that offer sem 1 CPTs, it may result in issues in the immigration process down the line, but it's wrong to say and advice people that it is illegal, if it's a SEVIS approved University.

Additionally, based on multiple personally known cases (which have done two masters using up 12 month OPT and 7 months of CPT and have gotten GCs without issues), 12 month total OPT is per education level, but CPT (less than 12 months) appears to be allowable for a second masters (in addition to the completely used up OPT). Ofcourse part time CPT has no bearing on the 12 month OPT which is clear in the rules.

 

[JoeF]

The law (8CFR214.2(f)(10)) says that only 12 months of practical training per education level is allowed. There is an exception for STEM OPT, but not for CPT.

Doing OPT for 12 months and then doing CPT for a second program on the same educational level violates that rule.

[devenchhillar]

@JoeF

I have seen many post of yours, and you say only 12 months of practical training is legal.

So can you explain how did i get Opt and Stem OPT.

I did my 1st masters then didn't take opt instead started 2nd masters from day 1 Cpt school - Did for 12 months - then I got my OPT Now my stem opt card is produced. So can you explain?

[JoeF]

4 hours ago, devenchhillar said:

@JoeF

I have seen many post of yours, and you say only 12 months of practical training is legal.

So can you explain how did i get Opt and Stem OPT.

I did my 1st masters then didn't take opt instead started 2nd masters from day 1 Cpt school - Did for 12 months - then I got my OPT Now my stem opt card is produced. So can you explain?

8 CFR 214.2(f)(10), as I've mentioned before. The law is online, e.g. on the USCIS website.

"(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."

In particular, the last sentence.

USCIS may not check this when a school files the CPT paperwork. But they DO check later on when you try to get a COS. Lots of people got RFEs about maintenance of status (which they didn't if they used more than 1 year of PT.)

It is YOUR responsibility to be aware of the rules.

Edited October 14, 2019 by JoeF