The F-1 practical training regulations are prefaced at 8 CFR 214.2(f)(10) with the statement that:
"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. Students in English language training programs are ineligible for practical training. An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study."
In September, 2017, NAFSA was made aware of a USCIS "notice of intent to revoke" an H-1B petition that had been approved in 2015, which included an assertion that the overall 12 months of practical training eligibility referenced in the preface of the practical training regulation at 8 CFR 214.2(f)(10) applies to Curricular Practical Training (CPT) and Optional Practical Training (OPT) in the aggregate, such that use of 3 months of full-time CPT, for example, would leave only 9 months of OPT eligibility. It was later reported back that this particular case was eventually resolved favorably.
In June, 2018, though, NAFSA received reports of Requests for Evidence (RFEs) in two applications to change from F-1 to H-1B status, where USCIS once again appeared to be counting both CPT and OPT in the aggregate. In these instances, USCIS also cited to the introductory language of 8 CFR 214.2(f)(10), 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," without distinguishing OPT from CPT.
The interpretation in the recently reported RFEs runs counter to over fourteen years of precedent and practice, in which USCIS and INS before it would count CPT only to the extent that it was issued on a full-time basis for 12 months or more, for purposes of applying 8 CFR 214.2(f)(10)(i), which provides:
"... Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training."
This recognizes that CPT is by nature "integrally related to an established course of study," as compared to OPT, which is designed for practical application of theoretical principles at the election of the student. Even though CPT is curricular, the regulations balance things out by viewing "one year or more" of full-time CPT as reflecting a curriculum that has prepared a student to practically apply theory to world, simply by completing a course of study that included such an intensive practical element as a part of the course of study. 12 months of full-time CPT was at the same time a useful "bright line" that did not disadvantage a student who engaged in less than one year of full-time CPT from continuing her experiential learning in a 12-month period of post-completion Optional Practical Training.
The operation of the practical training provisions themselves also argue in favor an interpretation that less than 12 months of full-time CPT does not affect eligibility for the full duration of 12 months of OPT.
For example, even though the practical training preface states that, "[a] student may be authorized 12 months of practical training," 8 CFR 214.2(f)(10)(i) presumes that a student can have more than 12 months of practical training, by specifying that "one year or more of full time curricular practical training" renders a student ineligible for post-completion academic training at the same educational level.
So engrained is the interpretation that less than 12 months of full-time CPT does not affect eligibility for the full duration of 12 months of OPT, that SEVP’s Post-Completion OPT Planning Tool reflects the same counting protocol, and does not discount full-time CPT from the availability of a full 365 days of OPT. While this is only a tool provided by SEVP, the fact that it discounts only use of OPT, and not CPT, evidences the standardization of this practice over the years.
Students who receive an RFE on this issue, either on an application for OPT or in an application to change status, should discuss their response with an immigration lawyer.