Generally, all persons in a non-immigrant classification are required to maintain their immigration status for the duration of their stay in the U.S. This issue is of particular importance as we approach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrant status must demonstrate compliance and maintain status at the time of the H-1B filing. Failure to maintain the status can cause a denial in the prospective employee’s H-1B petition.
More recently, the USCIS has narrowly focused on F-1 students and particularly whether the student maintained status during any period(s) of authorized employment. The authorized periods of employment may include any work performed while engaged in Optional Practical Training (OPT) or Curricular Practical Training (CPT).
There are 4 primary characteristics that serve as evidence of the student’s maintenance of status while engaged in OPT/CPT:
- The student was enrolled full-time each semester;
- The student was engaged in full-time employment while on OPT/CPT (or part-time work if so designated on the SEVIS Form I-20);
- The CPT was an integral part of the student’s degree program; and
- The student engaged in CPT work after completing 1 year of academic studies.
In their discretion, the USCIS can request for additional clarification of the student’s academic and employment history. And ultimately the agency can issue a denial of the H-1B petition when the evidence provided deviates from the above mentioned characteristics.