1. If you have already applied for an immigrant visa petition, it may prove difficult for an American consulate or embassy to issue you the F-1 visa
A reader asks:
I’m currently working full-time in the US on an L-1 visa and haven’t received an H-1B lottery yet. I’m worried about being laid off, so I want to prepare early. Since my L-1 visa is tied to my employer, I’ll need a new status if I leave. I’m thinking of applying for an F-1 visa and continuing full-time work with a day-one CPT. However, I applied for a NIW visa in early July 2024 and am still awaiting a decision, expected in April or May 2025.
If I receive an I-140, can I still apply for an F-1 visa to obtain a day-one CPT? As I understand it, submitting a NIW visa indicates an intent to immigrate, which doesn’t seem to be permitted on an F-1 visa. However, some say this isn’t a big deal, as the F-1 visa is issued by the embassy and has nothing to do with USCIS. Even if the embassy sees my I-140 when reviewing my F-1 visa, the backlog is so far away that it’s unlikely I can file an I-485 while my F-1 visa is valid. Are there any other ways to work in the US? For example, changing status within the country (from L-1 to I-20). This way, although I can’t leave the country, I can still work.
Alan Lee Esq. answers:
If you are considering changing to F-1 and using Day 1CPT to continue working full time, please note that USCIS considers some institutions to be abusing the privilege of CPT, especially where Day 1 CPT is concerned. There is a chance that taking such without sufficient reasons for the school to issue it may be cause for later immigration problems. If you have already applied for an immigrant visa petition such as through NIW, it may prove difficult for an American consulate or embassy to issue you the F-1 visa as you may not meet the test of nonimmigrant intent. In our experience, we have had more success with changes of status through USCIS as that agency will usually give an opportunity to you to demonstrate your nonimmigrant intent if your case is flagged. You have touched on this in your last questions and come to the conclusion that you could not leave the country but could continue working – a reasonable assumption on the first but a presumption on the second as to whether you can continue working given the above caution on Day 1 CPT.