November 20

Unlawful Presence Policy To Affect Students On CPT And OPT Longer Than 12 Months

Transitioning from F-1 to H-1B is becoming increasingly complicated.

International students seeking employment after graduation from a U.S. university increasingly experience difficulties as USCIS continues to reinterpret and redefine policy language, specifically related to their practical training experience.

While working on their degree, international students on an F-1 student visa are allowed to work for up to 12 months under the Curricular Practical Training program (CPT), which is typically performed for credit toward the student’s degree.

In certain cases, CPT can be approved beyond 12 months since it only requires authorization from the student’s school, according to ICE.

Post-graduates can obtain a limited-term (12 months) employment under the Optional Practical Training (OPT) program. STEM degree holders (Science, Technology, Engineering, and Mathematics), however, may request an extension for up to 24 months under the OPT rules.

For years, international graduates have been able to work in the United States for a total of up to 24 months under the CPT and OPT (+24 months for STEM OPT), as the language states explicitly,

“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.”

It appears that the USCIS has begun deferring and retroactively applying the original language, issued in 1991, that suggests practical training could not last for more than 12 months for both programs combined. If the student participates in CPT for more than 12 months, they become no longer eligible for OPT.

At the same time, USCIS continues to approve 12-month OPT applications, regardless of the CPT length, yet when the individual seeks to transition to an H-1B, their participation in practical training programs is counted against them.

The real issue arises when the new unlawful presence policy is applied to students who worked more than 12 months under the CPT or OPT. Per policy, post-graduates who participate in CPT or OPT for more than 12 months face accruing unlawful presence from the 366th day of work but could be unaware until they set out to start a career and are denied their H-1B visa.

Further, “unlawful presence” begins to accrue at the time of the violation instead of accruing when there is a formal finding of a violation. Being deemed unlawfully present for long periods of time carries stiff consequences, such as being barred from the U.S. for 3 to 10 years.

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