CPT at Same Educational Level Poses Risk after One Year of CPT or OPT

Under the Trump Administration, a troubling trend has emerged with the U.S. Citizenship and Immigration Services (USCIS) that evidences a radical reinterpretation of regulations regarding the use of curricular practical training (CPT) and optional practical training (OPT) by F-1 students in certain circumstances. The USCIS is now taking the position, at least in some cases, that an F-1 student who partook in one year or more of CPT or OPT is not eligible to subsequently participate in CPT employment at the same educational level.

Pertinent Regulations on F-1 Students and Practical Training

On its face, and read in isolation, there is a regulation that indicates that an F-1 student who uses 12 months of practical training (i.e., CPT or OPT) cannot then engage in additional practical training at the same education level. However, when read in context with a directly related provision, it becomes clear that this requirement only applies to OPT – that is to say, the regulations prevent the use of OPT after engaging in at least 12 months of full-time CPT at the same education level, but it otherwise does not prevent the use of more than 12 months of CPT.

It should also be noted that part-time CPT does not affect eligibility for OPT even if it was authorized for more than one year.

Reinterpretation Under Trump Administration

Under the Trump Administration, the USCIS has inexplicably reinterpreted the CPT and OPT regulations, at least in some cases, to prohibit the use of more than 12 months of any practical training, CPT or OPT, at the same education level.

The USCIS has not stated officially that there has been such a policy change, and many universities continue to routinely recommend OPT for students who previously have completed 12 months or longer of CPT and/or OPT at the same level. The USCIS, however, has inconsistently been issuing requests for evidence (RFEs) and denials of status based on this reinterpretation of the regulations. In these RFEs and denials, the USCIS cites to the aforementioned regulation that prevents F-1 students from using more than 12 months of practical training, while ignoring the related provision that clarifies its meaning as being limited only to those who have used 12 months of OPT.

USICS Interpretation at Odds with Guidance from SEVP

The Student and Exchange Visitor Program (SEVP), which represents the U.S. Department of Homeland Security (DHS) to manage policies and programs for schools and F-1 nonimmigrant students, does not appear to agree with this reinterpretation of the regulation by the USCIS. In December 2018, months after the USCIS had begun to sporadically enforce this reinterpretation of the rules, the SEVP website was updated to reconfirm that the 12-month limit on CPT only pertains to a student’s ability to complete OPT at the same educational level.

Options for F-1 Students

As previously noted, there has been no official policy change by the USCIS, and this reinterpretation of the regulation apparently has been applied inconsistently. Foreign nationals who have worked pursuant to CPT and/or OPT for more than 12 months at the same education level, and those who are considering this option, should consult with an immigration attorney to discuss how best to proceed.

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