USCIS’ Possible New Interpretation of Practical Training

In relevant portions, 8 C.F.R. Section 214.2(f)(10) states:

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.

There are two types of practical training: Optional Practical Training (OPT) and Curricular Practical Training (CPT). Historically, the Department of Homeland Security (DHS) and USCIS have interpreted the relevant regulation to apply only when a student is seeking additional OPT authorization. Same level of degrees prevented students from receiving additional 12 months of OPT authorization. On March 11, 2016, the DHS’ final rule publication reiterated the requirement of students earning a second degree at a higher educational level to benefit from a second period of OPT (AILA Doc. No. 16030901).

However, recent decisions from USCIS Service Centers indicate that USCIS is placing more emphasis on the plain language of the regulation to determine an F-1 student’s change of status. In light of this trend, F-1 students or H-1B employees deciding to go back to school should be aware that USCIS may now require students seeking their second period of OPT and CPT to complete their second degree in a “higher educational level” than their first degree. For example, if a student’s first degree with OPT/CPT was a Bachelor’s degree then her second degree must be a Master’s degree to be authorized for a second period of OPT/CPT.

As “practical training” under the relevant regulation is not limited to optional practical training, USCIS does have the ability to broadly interpret the regulation and apply it to curricular practical training. As this may result in a denial of an employee’s change of status or prevent a student from receiving additional 12 months of practical training, please be sure to discuss with your immigration attorney for alternative strategies.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.