OMG, I received the notice for CPT RFE!
Abstract: As many of you have known, the H-1B policy this year has tightened, many applicants have already received the CPT RFEs. For those who have received the requests, keep calm, and don’t fret! Our firm has already helped numerous applicants successfully responded to similar supporting document notices. In this article, we will further discuss the topic of CPT.
1. What is CPT?
CPT (Curricular Practical Training) is a work permit that allows F-1 students to work legally outside of schools. Under the CPT permit, the content of the work performed must correspond to the applicant’s degree of study. The work includes an internship, Coop, or other work that meet the permit requirements.
What are the advantages of CPT?
(1) Work legally while maintaining the F-1 status;
(2) No minimum degree requirement
(3) Under normal circumstances, you can obtain the CPT work permit. Whereas some graduate-level projects require the students to participate upon entry, in that case, you can apply for the CPT right away
(4) Can work full-time
Many CPT users have mistakenly assumed that as long as the employers agree, they can continue to work while maintaining their F-1 status. Many perceived working under the CPT permit is an alternative to being missed out in the H-1B lottery. However, in recent years, USCIS has tightened its evaluation as a means to target the abuse of CPT. This has caused an increasing number of CPT users from receiving RFE notices concerning CPT in the year of 2018.
2. Who will receive the CPT?
Any H-1B Beneficiary who has used or is currently using the CPT.
3. What is in the CPT RFE notice?
CPT RFE is primarily questioning the legitimacy of academic courses during the time of CPT, and the correlation between the courses and work performed under the CPT permit. For applicants that have used the CPT, the USCIS will requests evidence from these three following aspects:
(1) Full Course of Study- Are you taking classes?
(2) Curricular Practical Training- Are the courses taken correlate to the work performed under the CPT?
(3) Multiple Years of Practical Training at Same Education Level- Have you abused the use of CPT? (the total time for OPT and CPT under the same degree level can not exceed twelve months)
Given these requesting evidence, we advise the applicants in the following: (Please note the actual material list includes the following but are not limited to the list comprised below. We are providing the examples as reference.)
(1) Full Course of Study- Please prepare I-20, transcripts, degree diploma, tuition receipt, student ID card, transportation ticket or receipt, course overview, and other supporting materials.
(2) Curricular Practical Training- Please prepare school policy, regulation, course code, instruction, or explanatory letter regarding the CPT work. The cooperation form between the school and the employer, letter explaining how to find the job, a letter explaining CPT or correlating courses, etc.
(3) Multiple Years of Practical Training at Same Education Level- This part needs to be discussed by the attorney.
As of now, the responses drafted by our firm in response to the “Multiple Years” have thus all been approved by the USCIS. But it is too early to finalize a strategy. Our current strategy is based on the calculated approved results by the USCIS in August. However, we still need to take note of how the USCIS will rule the result for this type of CPT in September and the subsequent months to ensure the shift of the USCIS internal policy direction. As for “Multiple Year”, the attorney will prepare this part, and no other additional material is needed from the employee or the employer.
4. Q & A
1）OMG! I got the CPT RFE, do I have to respond?
Answer: Yes, you have to respond to the RFE. However, you can opt for consular processing in place of submitting relevant CPT evidence or material.
2）Will my H-1B be approved upon submission of material or evidence proving the legitimacy of my CPT?
Answer: Not necessarily. If you opt for the submission of material or evidence, it will possibly lead to the 3 following results:
(1) H-1B petition and change of status request will usually be approved. Congratulation, your H-1B and Change of Status have been approved, you are now assured and can continue to work in the U.S.
Friendly reminder: If the applicant decides to leave U.S. upon the receipt of H-1B approval, the applicant has to go to the U.S. consular to obtain the updated H-1B Visa for the next entry into the U.S. Please see our article on the consular interview for details.
(2) H-1B petition approved, change of status request in the U.S. denied. The determinant of the H-1B approval is dependent on the employer, position, or meeting the application requirement, and not on whether if the beneficiary has maintained a legal status in the U.S. before submitting the H-1B application (which might involve the misuse of CPT). Don’t be discouraged, your H-1B petition is still eligible for approval. You have to go back to your home country or the U.S, consular in a third country to activate the H-1B visa. Nonetheless, we do not rule out any risks of going through the visa interview. If your interview is denied, then your H-1B will be not activated and will be equivalent to the denial of the H-1B petition.
(3) H-1B petition and change of status request are both denied. Unfortunately, you would have to reapply next year.
3）If I refuse to submit material or document proving my CPT legitimacy, will my H-1B petition be denied?
Answer: Not necessarily. If you choose not to submit material or document, it will possibly lead to the 2 following results:
(1) H-1B petition approved, change of status request denied. For this instance, please go back to your home country or to a U.S. consular in a third country for the visa interview to activate the H-1B visa. The determinant of the H-1B approval is dependent on the employer, position, or meeting the application requirement, and not on whether if the applicant has maintained a legal status in the U.S. before submitting the H-1B application (which might involve the misuse of CPT permit).
(2) H-1B petition and change of status request are both denied. Unfortunately, you have to reapply next year.
4）The result of my H-1B petition is: The USCIS asked me to visit the consular to activate the H-1B. In this case, if I go back to my home country and that my H-1B visa interview is denied, will I still able to re-enter the U.S. holding the F-1 visa and continue to use my CPT?
Answer: Not necessarily.
(1) If you have already submitted material or document evidencing the legality of your CPT, but the USCIS still concluded that you have misused the CPT, in this instance, your F-1 status will be deemed as illegal, and you will not be able to re-enter the U.S. and continue to use the CPT. Meanwhile, according to the new “Unlawful Presence Memo”, the calculation for the length of the unlawful stay will start on August 8, 2018, or the first day of your CPT (depending on the later date).
(2) If you have not submitted any material or document evidencing the legality of the CPT in response to the RFE: Theoretically, you can still re-enter the U.S. holding the F-1 visa and continue to use the CPT. ( However, there is a prior condition that the F-1 is still effective by the time of re-entry into the U.S.). This is mainly because the employer is still the H-1B petitioner whereas the employee is the beneficiary. Therefore, the beneficiary’s F-1 visa will not be affected as the H-1B petition is being denied. However, it is hard to predict if there will be any potential risk in re-entering the U.S. and continuing to work holding the F-1 visa, There have been instances that the USCIS had taken the beneficiary out of the SEVIS system which leads to the interruption of coursework for the H-1B beneficiary, and therefore can not return to work in the U.S.
Friendly reminder: There is a risk with the H-1B visa interview. How to prepare for the interview? Please go to the workshop on the 2018 H-1B visa interview for instructions on how to ace the consular interview.
We hope the above CPT article can ease your anxiety amid the complex process! We wish all the applicants the best of luck in obtaining the H-1B petition approval. Till then and cheer!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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