Impact: Day 1 CPT Universities vs New Unlawful Presence Memo

I wrote about the Day 1 CPT universities yesterday and why I think it tough times are ahead for students attending Day 1 CPT universities.

What I wrote yesterday was an extension of the comment I made in the F1 Visa OPT, STEM OPT Facebook Group (While you are visiting the group, click Join the Group, the most active group for F1 Visa Student community).

I did not know the interpretatons of the into details of the new draft memo and it’s impact until I noticed a comment in the Facebook Group.

The comment said, “Day 1 CPT Universities are illegal” by one of the moderators.

When I published the previous article, I said that the purpose students are using Day 1 universities are in the gray area. It’s been so ever since the term Day 1 CPT came into existence. My argument was also based on the two questions about the purpose the students are using the program and current immigration memo and policies.

I asked the moderator of the group, “Why did you think Day 1 CPT universities are illegal”.

He mentioned that Immigration attorneys are talking about it. And it did not take long before I started noticing the impact of the new draft memo from USCIS  (USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors).

If you haven’t had a chance to fully understand the memo, please take some time to understand what is in the draft memo and potential impact. The memo goes into effect on Aug 9, 2018.

Here’s an excerpt from the memo about accruing unlawful presence.

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Now, how is this related to Day 1 CPT Universities? There is no mention of such colleges and programs in the memo.

Read the highlighted part in the following sentence again:

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;

If USCIS considers the purpose of CPT issued by the Day 1 CPT Universities as unauthorized, then F1 students will start accruing unlawful presence.

Here’s another key term to pay attention – Accruing.

Here’s what the Draft Memo says:

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

So, how does this accruing unlawful presence related to Day 1 CPT Universities?

As I stated in the previous article, your immigration checkpoints are at USCIS, Port of Entry and Visa Interview.

DSO issues your I-20 for CPT. Immigration officials from any of the above departments is not involved at this point.

When F1 students are applying for H1B Visa, and at that juncture, if USCIS thinks the CPT from Day 1 college is unauthorized, because of purpose it was used, then you will start accruing unlawful status from the Day the CPT was issued from Aug 9, 2018. This my understanding after watching this video.

Here’s what Attorney Jack Sung said about this scenario with respect to Day 1 CPT Universities

And as most users are expecting to see more concrete data to verify the claims. Here’s a reply from Immigration Attorney Satveer Chaudhary:

 

If you are following this article, it’s easy to figure out the reasons.

But now, a new interpretation of the regulations by USCIS suggests that CPT cannot be authorized AT ALL if the student is at the same degree level. This is based on an existing regulation which 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.” 8 CFR 214.2(f)(10).

This has historically been interpreted only to apply to OPT, not CPT. However, the regulation itself just refers to “practical training” and does not specify which types of practical training it applies to.

Now, if this were true, what can possibly happen (and go wrong)?  And there are several questions related to an individual scenario and here’s one from the comment.

If I am taking CPT only for certain period, and leave it to go home country before H1B application, where my company can apply H1B through a consular process (not the change of status). What is the impact?

As per the interpretation of this memo and the impact Day 1 CPT option, USCIS considers the day the CPT was issued to be count as unlawful presence. You may leave the country, for now, what about future opportunities in the USA?

Forget future opportunities and visa stamping. If you knew Day 1 CPT option in second masters is considered to be illegal by USCIS, why would you even consider that?

If you have a specific question about this proposed memo, you can Ask an Immigration Attorney to figure out the impact and make plans. The example discussed here is based on Day 1 CPT colleges and universities. There are several scenarios at play here. For example, if employment started a day before authorized CPT date to unemployment period in OPT and so on.

Summary:

• CPT for the second master’s degree from Day 1 CPT colleges are not specifically called out as illegal
• USCIS issued RFE’s and/or denied Change of status for F1 to H1B  for applicants in Day 1 CPT program
• Such COS denial could be treated as say “unauthorized activity”
• The unauthorized activity could result in 3 or 10 years or permanent bar from entering the USA
• If USCIS considers Day 1 CPT in second masters is unauthorized activity at the time of your H1B application, and if you may have accrued unauthorized stay in the USA and it’s tough to recover from that
• These are my opinions based on observations of events. Talk to your attorney.

Next: Life of Long Distance Couple of H1B Visas