Update: USCIS Withdraws Appeal, Policy Memo Remains Invalid

On July 31, 2020, U.S. Citizenship and Immigration Services (USCIS) withdrew its appeal in the U.S. District Court for the Middle District of North Carolina, which sought to overturn the court's ruling of February 6, 2020, that declared the USCIS memo referenced below to be invalid. With the dismissal of this appeal, USCIS has returned to the previous policy dated May 6, 2009.

Originally published: October 15, 2018

On October 8, 2018, SISS hosted a panel presentation to discuss UCSIS changes in counting days of unlawful presence. Below are questions from international students, scholars, and UC Davis staff and answers from the panel of Services for International Students and Scholars advisors.  For further information, please review the Unlawful Presence presentation. 

• Is it possible that I violated my status in previous stays in the US (e.g. 10 years ago) and if so, how do I know?
• Since we cannot know about your exact situation from a decade ago, we cannot say whether you violated status or not.  There is nothing you can do at this point to rectify or change prior violations.  Our best advice to you is to be careful to maintain status from this point going forward.  If you have questions about what that means in relation to enrollment or employment please contact our office.  We have resources that define key responsibilities available here for F-1 Students, here for J-1 Students, and here for J-1 Scholars.
  
  Keep in mind that any bars that might be imposed upon you take effect only when you leave, and seek to re-enter, the United States.
• Is there any way to know if unlawful presence is accruing?

• There is no way to officially know this.  In other words, there is no database or record system that enables one to assess this.  However, our message is that status violations are likely to “start the clock” on unlawful presence and that avoiding status violations is the key.

• What if any violation occurred before August 9, 2018?

• As noted in the presentation, students or scholars “(w)ho failed to maintain status before August 9, 2018 began accruing UP on August 9, 2018.”  Thus, even status violations committed before August 9, 2018 are now accruing unlawful presence.

• I went to a conference in Europe last May.  The organizer paid for my travel, am I in trouble?  (The Assistant Director of International Scholar Services at SISS mentioned that travel reimbursement for J visa holders is acceptable. So the question was whether this was true only for J-1 scholars, or “Is it is also the same for the F-1 student?”)

• Reimbursement for expenses is not the same as payment for employment.  There is nothing that leads us to believe that this would be construed as unauthorized employment for F-1 or J-1 students or J-1 scholars

•  How filling fee (for waive tuition) work for F-1 student?
• Filing fee is typically granted only in the final quarter of a graduate student’s program while s/he is working on a dissertation or thesis and not taking any classes. It is granted by Graduate Studies and the student does not enroll in any units.  When a student informs SISS, we verify that s/he is on filing fee, and treat the record as enrolled full-time. This means that even though a student is enrolled in zero units, SISS we considers him/her a full time student and s/he maintains full-time student status legally.
•   At what point is “dropping below 12 units” noted? End of quarter? Add courses deadline?

• The requirement is 12 units by the 12th day of class.  If students are not enrolled in 12 units by this deadline their records will be terminated, though we work closely with students and advisors to find solutions to this problem and can have some flexibility if a late course add is pending.   

  Students who drop below 12 units after the 12th day—that is, they were enrolled in 12 units on the 12th day but later dropped below 12—will also have their records terminated unless they can bring their enrollment back up to 12 units. 

  Keep in mind that failing a class is NOT the same as dropping below 12 units, nor is retroactive withdrawal.  The latter can only be done with Dean’s Office approval

•  When is the program completion date for a PhD program? (J-1 Student)

• The program completion date is listed on the DS-2019 for J-1 students and on the I-20 for F-1 students.  However, these dates may be shortened or extended, and, therefore, the key to knowing the actual end date is based on the quarter in which you will have completed all degree requirements. 

  In the case of F-1 graduate students going on OPT, the end date will be the last day of the quarter used to determine the start of the OPT authorization period.  However, for all students on OPT, even though the program end date is listed on the I-20, a pending and/or approved OPT application allows the student to remain in the US legally until the OPT end date plus a 60-day grace period.

• Does volunteer work for a student-run organization or event count as working without authorization?
• Student-run organizations are “on-campus” and work with them does not require authorization for international students.
• What kind of volunteer activity need to be authorized?  For example, volunteer at a shelter or an animal rescue needs to be authorized? (F-1 students).

• Neither Curricular Practical Training nor Optional Practical training require remuneration and can be thought of as “volunteer” work.  And yet, both require authorization.  In recent exchanges on a professional listserv and in communication with SEVP, it has become clear that “volunteer” work is being closely scrutinized in the case of OPT.  As a result, we want students to be very cautious about working without authorization simply because THE STUDENT deems it voluntary.  In the eyes of the US government, it may be and usually is, considered work requiring authorization.

  There are some clearly defined contexts in which volunteer work off campus is permissible without authorization.  Given the complexity of the issue, we STRONGLY encourage students considering volunteer work off campus to speak to an advisor so we can evaluate the specifics and provide advice

• Does volunteer work count as work or employment? Is so, are there any situations where it might be considered work versus not?

• Volunteering is always considered work that requires work authorization prior to beginning employment except in very narrow circumstances. If you have questions about whether a volunteer opportunity requires work authorization, contact your SISS International Student Advisor.

• If graduate students are ABD, may they work 75% FTE if they can show that the appointment is fulfilling degree requirements?
• Under our new policies for Academic Training (AT) and Curricular Practical Training (CPT) we would not authorize ANY on-campus employment above 50%. If the work is 75% off-campus or a combination of off and on-campus, SISS would authorize ONLY if the Graduate Coordinator can demonstrate the additional 25% is necessary to complete a dissertation or thesis.  This is not the same as required to fulfill a degree.  This is about demonstrating that the additional work will be necessary to complete a final (required) degree component.  In other words, SISS needs a clear statement that a student must work full-time to complete a dissertation/thesis and that failure to work full time will prohibit them from doing so. 
   

  In the past, the 75% FTE came into play with students on a 50% GSR who wanted to add a 25% TAship (or other employment).  In such cases, we will no longer authorize the additional 25% of AT or CPT.

• During OPT, is it required to have insurance?
• No, but it is strongly encouraged.
• If my I-20 end date is in June 2019 and I would like to extend my graduate program for another year (June 2020), without violating any rules of grad studies at UCD, how do I approach this issue and when should I start the process?
• Whether graduate or undergraduate, you should start the process by talking to an academic advisor (Dean’s Office advisor, or Graduate Coordinator).  The reason for this is that SISS can extend your program for legitimate academic reasons as attested to by an advisor.  Once you have an agreement from an advisor you will make an extension request via iGlobal and the advisor will be asked to provide verification via an e-form.  SISS will then extend your program.  Extension requests after the end date on an I-20 are NOT possible.
• Due to this policy, is there new/extra something F-1 students should do before leaving for winter/summer breaks?
• Students leaving the US should always have an updated travel authorization signature on the back of their I-20 or on their DS-2019.  A travel signature is valid for one year for students in J-1 status with a DS-2019 or F-1 status with an I-20 EXCEPT for when F-1 students are on OPT/STEM OPT when the signature is valid for only 6 months. J-1 scholars must get an updated travel signature from SISS every 6 months.  
• Does on-campus work require any authorization for any sort of work if we are in F-1 status? Would it matter for paid/unpaid work?
• On-campus work is a benefit of the F-1 status and does not require any authorization.  It is limited to 20 hours per week during the regular quarter but may be more than 20 hours per week during official school breaks including summer breaks.
  
  If you have questions about what is considered “on-campus” please come to SISS and talk to an advisor.
• What happens to one's legal status if the EAD card arrives after 90 day unemployment?
• Unemployment begins to accrue after the employment start date on the EAD. F-1 students who have been unemployed for a total of 90 days must plan on leaving the United States. Staying in the United States after having reached 90 days of unemployment for one year of standard OPT or 150 days for all 3 years of STEM OPT will render a student in unlawful presence.
• Is an interim EAD still valid or does USCIS still issue interim EAD?
• There is no interim EAD.
• After getting hired and handling all the OPT documents, what are some additional things we have to have to ensure that we can enter back into the United States without the risk of getting denied entry? Are there any new policies that might affect us to enter back into the States?
• Make sure you have a valid travel signature and review the information located on our website: Traveling on OPT 
• Are J-1 students allowed to do an internship or part-time job in a company? If yes, what procedures should be followed in this case?
• Information, procedures, and a detailed PowerPoint presentation about Academic Training are on our website.
• As a J-1 student, I’d like to stay two years after the completion of my studies for post academic training. How does this new law affect me?

• Post-completion Academic Training is an employment benefit for J-1 students. The training times vary, but students completing a doctoral level program may be eligible for up to 36 months of training. Talk to your SISS International Student Advisor for details.

  J-1 students must request Academic Training before completion of studies and must begin training no more than 30 days after completion of studies.

  Both F and J students will have an additional 60 or 30 day Grace Period at the end of OPT or Academic Training. It is important not to stay in the United States beyond the Grace Period because that is one way to begin accruing unlawful presence.

• Should I apply for OPT much earlier before completing the course of study or program?
• SISS recommends submitting the request to USCIS 90 days prior to completion of studies which means starting the iGlobal request process approximately four months prior to program completion.
• J-1 Student: If I want to do an internship related to my academic program after graduation, would that be affected by the grace period?
• Academic Training (AT) is a benefit of J-1 status and can extend beyond the end of all degree requirements.  Students must request authorization for AT before the end of their program and must have authorization before they begin work.  At the conclusion of the AT, there is a 30-day grace period during which the student is permitted to prepare to leave the US—but NOT work. The following table provides a comprehensive look at “grace periods:”

  Situation	Grace Period Before Leaving United States
  F-1 upon completion of degree requirements	60 days
  F-1 upon authorized early withdrawal	15 days
  F-1 upon OPT completion	60 days
  F-1 OPT pending past 60 day grace period	As long as application is pending adjudication**
  F-1 OPT/STEM OPT unemployment	90 total days or 150 total days (including unemployment during OPT)
  F-1 upon unauthorized withdrawal	0 days
  F-1 upon dismissal/transfer deadline	0 days
  J-1 upon completion of degree requirements	30 days
  J-1 upon Academic Training completion	30 days
  Change of status (COS) pending	While COS is pending
  SEVIS Transfer	Release of SEVIS record within 60 days and in class within 5 months of program end date or last day of class.

• What is the extent of the “Grace Period” after graduation and how does OPT fall into this issue?
• The “Grace Period” for F-1 students is 60 days after completion of studies and 30 days for J-1 students. I-20s/DS-2019s are shortened, if necessary, to the last day of the term that the student finishes all coursework required to earn a degree. This may be different from the original date on the I-20/DS-2019 and different from the graduation date.
   

  F-1 students may request OPT between 90 days prior to completion of studies and up to 60 days after completion of studies (which is during the grace period). The start date of OPT must be during the grace period. More detailed information can be found on our website: Optional Practical Training (OPT)