Generally, all persons in a non-immigrantclassification are required to maintain their immigration status for theduration of their stay in the U.S. This issue is of particular importance as weapproach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrantstatus must demonstrate compliance and maintain status at the time of the H-1Bfiling. Failure to maintain the status can cause a denial in the prospectiveemployee’s H-1B petition.
More recently, the USCIS hasnarrowly focused on F-1 students and particularly whether the studentmaintained status during any period(s) of authorized employment. The authorizedperiods of employment may include any work performed while engaged in OptionalPractical Training (OPT) or Curricular Practical Training (CPT).
There are 4 primary characteristicsthat serve as evidence of the student’s maintenance of status while engaged inOPT/CPT:
- The student was enrolled full-timeeach semester;
- The student was engaged infull-time employment while on OPT/CPT (or part-time work if so designated onthe SEVIS Form I-20);
- The CPT was an integral part of thestudent’s degree program; and
- The student engaged in CPT work aftercompleting 1 year of academic studies.
In their discretion, the USCIS canrequest for additional clarification of the student’s academic and employmenthistory. And ultimately the agency can issue a denial of the H-1B petition whenthe evidence provided deviates from the above mentioned characteristics.