This client faced two Requests for Evidence (RFEs), which is quite rare. In both instances, the USCIS attempted to make an issue seem more problematic than it actually was. We can only say that this was a tactic to intimidate the client from pursuing a conversion of his F-1 status to H-1B after cap lottery.
The first RFE argued that the Beneficiary was granted more than 12 months of practical training at the same educational level. The rule, however, states that students qualify for 12 months initially and then become eligible for another 12 months of practical training when they pursue a higher educational level.
The second RFE argued that the Beneficiary failed to maintain his F-1 status because he did not maintain a full course of study. The law provides that an F-1 student may only count one online or distance education course without the physical oversight of a school employee (or the equivalent of three credits) toward a full-course of study per academic term. The USCIS argued that the student was enrolled in more than one online course and, therefore, didn’t qualify.
The real solution here is not to be intimidated. We know the law well and could properly rebut with proper legal analysis.
With respect to the first RFE, we knew that the law as provided by the USCIS officer was not complete. Other immigration attorneys lacking experience may not have known an exception exists, and this exception is: students enrolled in graduate studies requiring immediate participation in curricular practical training (CPT) are eligible for post-completion academic training. This exception applied to our client.
After the first RFE response was successful, our client received a second and rare RFE arguing that the student was not in compliance with full-time course of study. We worked with the student and school officials to provide documentation that the Beneficiary benefited from hybrid courses and residency classes as opposed to online courses. In part, we proved our argument by showing the Beneficiary had to participate in three full days of in-class instruction under the supervision of a professor or course instructor. We met the legal standard and were able to show that the student’s status had been maintained.
With regard to the HB1 aspect of this case, we demonstrated that the CPT had been directly related to student’s major area of study. We further explained how the Beneficiary’s then-current MBA program provided specialized knowledge that allowed him to improve his ability to develop and test the systems used for his future employer’s large scale pharmaceutical manufacturing operation.