By: Steven Brouillard and Jake Campbell

Seyfarth Synopsis: Starting January 25, 2023, USCIS will adjudicate I-539 and I-765 applications for H-4 and L-2 dependents when those applications are filed concurrently with the I-129 petition.  The bundling of those applications applies to both regular and premium processed H-1B or L-1 petitions.

USCIS will return to its historical process of adjudicating applications for H-4 and L-2 dependents when the Forms I-539 (application to change or extend status) and I-765 (employment authorization application) are filed concurrently with the H-1B or L-1 petition. In addition to L-2 or H-4 extensions, dependents seeking to change to H-4 or L-2 status using Form I-539 will also benefit from the bundled adjudication, provided that the Form I-129 is filed concurrently. The practice of bundled adjudications will be in effect for two years, effective January 25, 2023.

This shift in practice is the result of a settlement agreement in Edakunni v. Mayorkas, which challenged the lengthy adjudications for H-4 and L-2 dependents. Under the Trump administration, USCIS implemented several changes – requiring biometrics appointments and de-coupling the adjudication of I-539 applications filed together with Form I-129 – that led to extensive processing times for H-4 and L-2 dependents. USCIS, under the Biden administration, has taken several steps to improve the processing time for dependent applications. On May 17, 2021, USCIS suspended the biometrics appointment requirement for those filing an I-539 requesting H-4, L-2, or E dependent nonimmigrant status. On November 10, 2021, USCIS reached a settlement agreement in Shergill v. Mayorkas that permits L and E spouses to work incident to status, and provides automatic extensions of employment authorization for certain I-765 renewal applications.  

We expect USCIS to make an announcement regarding the Edakunni settlement agreement shortly. It remains unclear how USCIS will adjudicate pending I-539 or I-765 applications that were filed concurrently with Form I-129, prior to January 25, 2023.

Seyfarth will continue to monitor any further developments from the Edakunni settlement agreement. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

By Steven R. Brouillard and Victoria Ma

Seyfarth Synopsis: On January 12, 2023, USCIS announced the final phase of premium processing expansion for EB-1 Multinational Executive and Manager and EB-2 National Interest Waiver (NIW) Form I-140 Petitions, as well as steps to expand premium processing for certain I-765 and I-539 applications.

Background:

On March 30, 2022, the Department of Homeland Security (DHS) published a final rule, Implementation of the Emergency Stopgap USCIS Stabilization Act. This final rule codified certain premium processing and adjudication timeframes. Pursuant to this final rule, U.S. Citizenship and Immigration Services (USCIS) announced initiatives to increase efficiency and reduce burdens to the overall legal immigration system, including expanding premium processing to more petitions and applications. As a result, USCIS extended premium processing to certain pending EB-1 Multinational Executive and Manager (EB-1C) and EB-2 National Interest Waiver (NIW) petitions over three separate phases in May 2022, July 2022, and September 2022.

On January 12, 2023, USCIS announced the final phase of premium processing expansion for EB-1C and NIW immigrant visa petitions. This expansion is part of USCIS’s continued efforts to implement and achieve its processing backlog reduction goals. USCIS has previously stated that they aim to achieve their established new cycle time goals by the end of fiscal year 2023.

EB-1C Multinational Manager and EB-2 National Interest Waiver Immigrant Visa I-140 Petitions

Starting from January 30, 2023, premium processing will be available for all pending and new EB-1C Multinational Executive and Manager immigrant visa petitions and all pending and new EB-2 National Interest Waiver (NIW) immigrant visa petitions.

Before January 30, 2023, only EB-1C petitions with a receipt date of January 1, 2022 or earlier are eligible for premium processing; and only NIW petitions with a receipt date of February 1, 2022 or earlier are eligible for premium processing.

The premium processing filing fee for EB-1C and NIW immigrant visa petitions is $2,500. Premium processing service for EB-1C and NIW immigrant visa petitions means that USCIS will adjudicate the petition within 45 calendar days, as opposed to the standard 15 calendar days that many other immigration benefits enjoy. With processing times often exceeding one year for EB-1C/NIW petitions at the Texas and Nebraska Service Centers, this is welcome news. Upgrading an EB-1C/NIW petition to premium processing only expedites the adjudication of the I-140 petition and does not guarantee expedited processing of any pending I-485 applications.

Employment Authorization Document Applications for F-1 Students

The January 12th USCIS announcement also stated that in March 2023, USCIS will expand premium processing to F-1 students seeking Optional Practical Training (OPT) or STEM OPT who have a pending I-765 employment authorization application. The fee will be $1,500 for a 30-day adjudication period.

Additionally, in April 2023, USCIS expects to expand premium processing to all pending and new OPT and STEM OPT I-765 applications. USCIS will announce specific dates for each group in February this year. The premium processing eligibility timeline for employment authorization applicants in other nonimmigrant visa categories remains unclear.

I-539 Applications For Certain Students And Exchange Visitors

Finally, the January 12th USCIS announcement provided an update on the agency’s plan to expand premium processing to I-539 applications.  In May 2023, USCIS anticipates expanding premium processing for pending I-539 applications for certain student and exchange visitors. It is likely that this extension phase would be limited to applicants seeking F (academic student), M (vocational student), and J (exchange visitor) nonimmigrant status. The fee will be $1,750 for 30-day adjudication period. In June 2023, USCIS expects to expand premium processing to all pending and new I-539 applications filed by certain student and exchange visitors.

At present, there is no proposed timeline for implementing premium processing for other I-539 applications, including those in E-2, E-3, H-4, L-2, or O-3 status.

Seyfarth will continue to monitor developments with respect to premium processing expansion policy updates. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) published a proposed rule to increase fees for most immigration benefit requests. If implemented, employers will pay significantly more for most nonimmigrant and immigrant filings. The fee increases projects to boost revenues by over $4.5 billion providing USCIS with the much-needed resources the agency claims are necessary to “improve service levels.”   The USCIS is funded mainly by these user filing fees, as opposed to appropriations, which fund other agencies like the Department of Labor (DOL).  The rule is subject to a 60-day comment period closing on March 3, 2023. Details and key takeaways appear below.

What are the key takeaways for employers from the proposed rule?

  • Fees for cap H-1B registration would increase dramatically from $10 to $215 per registration.  Fortunately, the comment period makes it impossible for this increase to be implemented for the upcoming cap H-1B registration in March 2023.
  • USCIS seeks to collect additional fees from the employer community to help fund the asylum and humanitarian relief programs. Every I-129 and I-140 petition would require a separate $600 Asylum Program Fee payment. This fee would apply to all initial petitions, changes of status, and extensions of stay that use Form I-129. This $600 fee would be in addition to the separate Form I-129 and I-140 filing fee increases. The proposed fee is currently $600 regardless of the size of an employer or the number of foreign nationals it employs.
  • Premium processing service would change from 15 calendar days to 15 business days. Business days are defined as the days that the federal government is open for business, which does not include weekends or federally observed holidays. This could add a one to two week delay to case processing.
  • Adjustment of Status (AOS) applications would no longer benefit from one bundled fee for the I-485, I-131 (Advance Parole), and I-765 (EAD) applications. The total fees for a bundled AOS application (including the I-485, I-131, and I-765) would increase from $1,225 to $2,820. USCIS would also eliminate the reduced AOS fee for individuals under 14 years of age. Thus, some individuals may only opt to file the I-485 without I-131 and I-765 applications.
  • Individuals with a pending AOS application would need to pay the I-765 and I-131 filing fees with USCIS when renewing Advance Parole or Employment Authorization.
  • Filing fees for H-1B petitions would increase from $460 to $780 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for L-1 petitions would increase from $460 to $1,385 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for E or TN petitions would increase from $460 to $1,015 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for I-140 immigrant visa petitions would  increase more modestly from $700 to $715 (Not including the additional $600 Asylum Program Fee).
  • Filing fees for online applications would be lower than paper-based applications. For instance, USCIS proposes a new filing fee of $555 for I-765 applications filed online and $650 for paper-based I-765 applications. Similarly, the proposed filing fee for online I-539 applications is $525 and the proposed fee for paper-based I-539 applications is $620. USCIS views it less expensive to process when forms are filed electronically. The proposed rule cites the increase of online filings during COVID and encourages “continued use of online filing at the same or a higher rate after the pandemic, DHS proposes a lower fee for online filing of immigration benefit requests for which both paper and online filing options are available.”
  • Filing fees for EB-5 related Regional Center and investor petitions would see the most significant increases, with USCIS rationalizing the increases by referring to the mandate of the EB-5 Reform and Integrity Act of 2022 (RIA) and noting that RIA “requires DHS to . . . set fees for EB-5 program related immigration benefit requests at a level sufficient to recover the costs of providing such services, and completing the adjudications within certain time frames.”  The rule also discusses the need to increase staffing levels at the Immigrant Investor Program Office and “believes that immigrant investors and regional centers are able to pay the fees.” USCIS proposes to increase I-526E investor applications from $3,675 to $11,160 and I-829 petitions from $3,835 to $9,525. Regional Center Designation I-956 applications are proposed to increase from $17,795 to $47,695 and the I-956G Annual Statement is proposed to increase from $3,035 to $4,470.
  • To encourage the naturalization of Lawful Permanent Residents (e.g. green card holders) to U.S. Citizens, USCIS proposes  a modest increase for the N-400 application from $640 to $760.

Where can I find the new proposed fee schedule from USCIS?

The chart showing the current and proposed fee increases is available starting at page 407 of the proposed rule.  (See 88 Fed. Reg. 402, 407 (Jan. 4, 2023)). Seyfarth has prepared the below chart to show the current fees and proposed fees for the most common employment-based petitions and applications. We have also included EB-5, Immigrant Investor Program, related fees.

Comparison of Current and Proposed Fees

History and Other Insights

The last time USCIS successfully increased fees was in 2016. There was a thwarted attempt to raise fees in August 2020, with an effective date of October 2, 2020. The 2020 final fee rule was challenged however, by AILA and partners, and a preliminary injunction and stay was issued by the U.S. District Court for the Northern District of California. Another injunction was issued by the U.S. District Court for the District of Columbia also staying the effective date.  One of the arguments outlined by the plaintiffs in the August 2020 complaint focused on the government’s lack of an explanation for the proposed fees. According to the complaint, there was inadequate explanation for the “dramatic change in the financial needs of the USCIS. DHS does not disclose calculations underlying its skyrocketing costs or explain why it projects a massive budget shortfall despite the agency’s recent history of running at a surplus with substantial cash reserves.” 

USCIS has learned from the failed fee increase attempt in 2020. In the 2023 proposed rule, USCIS appears to have spent a great deal of time and effort creating the 210-page document, describing in detail the fee review USCIS undertook. According to the USCIS Press Release, USCIS “determined that the agency’s current fees, which have remained unchanged since 2016, fall far short of recovering the full cost of agency operations. USCIS is required to publish a fee rule biannually and proposes these changes to account for the expansion of humanitarian programs, federally mandated pay raises, additional staffing requirements, and other essential investments.”

What happens next?

USCIS will host a public engagement session on the proposed fee rule on January 11, 2023. The agency will accept comments from the public until March 6, 2023. Individuals or employers may  visit review the proposed rule here and submit comments here. The Seyfarth Government Relations and Policy group is assisting various companies and organizations in preparing comments and would welcome the opportunity to speak with anyone interested in participating.

We expect that the comments will include concerns from small businesses, non-profits, and  educational institutions who are not generally in a position to absorb the enormous increase and will feel a disproportionate impact. Consequently, it is possible that with enough feedback, changes to the proposed schedule could be made, but it is highly unlikely that this will occur.  

Once the comment period is closed, USCIS will then take time to respond to the public comments and publish a final rule, which will contain the date of implementation. In 2016, the last time USCIS successfully increased fees, it took over seven months from the date the proposed rule was published before the new fees became effective. In short, it will take many months before the higher fees take effect, if at all.  If the rule is finalized without significant changes, it is very likely that litigation will ensue. Seyfarth will offer more details and insights once more information is available.

For questions or assistance please contact the Seyfarth Immigration, Immigration Compliance and Enforcement or EB-5 Immigrant Investment groups, or the authors directly- Dawn Lurie at dlurie@seyfarth.com or Steven Brouillard at sbrouillard@seyfarth.com.

By: Dawn Lurie, Matthew Parker* and Amber Stokes*

As U.S. Citizenship and Immigration Services (“USCIS”) continues to deal with their backlogs, they have announced that, effective September 26, 2022, USCIS is automatically extending the validity of expired Forms I-551, Permanent Resident Card ( or “PRC”), commonly known as a Green Cards, for lawful permanent residents (or “LPRs”) who properly file a Form I-90, Application to Replace Permanent Resident Card.

This extension will now extend the validity of an expired green card for 24 months from the expiration date of the green card. In June of 2021 the USCIS first introduced the concept of extending an expired green card by using  an I-797C, Notice of Action (“receipt notice”) for a Form I-90. These original extensions were   granted for a 12-month extension to an expired I-551’s validity. This will assist green card holders facing long extension times who wish to present their green cards as proof of employment eligibly.   

The I-797C, Notice of Action for anyone with a pending Form I-90 after September 26 will reflect the new 24-month extension. Additionally, USCIS has already begun issuing amended receipt notices for LPRs with an already pending Form I-90 application and a receipt notice dated before September 26.

How Do I Complete the Form I-9 using the Expired Green Card and Form I-90 Receipt Notice?

First thing to note is that a I-797C, Notice of Action for a Form I-90 presented with an expired green card combination is an acceptable List A document that establishes identity and employment authorization and does not require reverification.

Here are the steps for recording these documents for a new hire

  1. Record the document title and issuing authority in the appropriate List A fields of Section 2.
  2. Record the document number of the employee’s expired green card, located on the back of the card.
  3. Record the expiration date as the ”Card Expires” on the front of green card plus 24 months. In other words add two years onto the “Card Expires” date listed on the employee’s green card.
  4. Record “PRC EXT” and the I-797C receipt number in the Additional Information box.
Employment Eligibility Verification Graphic

Things to Remember

  • Employees that present an expired green card and Form I-90 (I-797C receipt notice) should not be reverified.
  • No action needs to be taken on existing employee’s I-9s where they have previously presented the I-797C granting a 12-month extension along with the expired green card.

For questions or assistance regarding Form I-9 compliance, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

* Matthew Parker and Amber Stokes are part of Seyfarth’s Business Immigration team, however they are not practicing attorneys.

By: Dawn Lurie, Matthew Parker, and Amber Olson

On July 22, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a reminder regarding the Department of Homeland Security’s (DHS) termination of the COVID-19 temporary policy allowing employers to accept expired List B documents for the Form I-9. As of May 1, 2022, employers must only accept unexpired List B documents.

As discussed in previous blogs, DHS adopted a temporary policy at the onset of COVID-19 in 2020 to allow expired List B documents to be accepted for Form I-9 purposes in response to the many difficulties individuals experienced with renewing identity documents. Since May 1, 2022, DHS has returned to their original policy which only allows for unexpired List B documents to be used for the Form I-9.

USCIS reminds employers that they are required to update Forms I-9 for any employees who presented an expired List B document between May 1, 2020 and April 30, 2022 that were not formally extended by their issuing authority, by July 31, 2022 – that’s this weekend! To update, employees must be asked to provide either an unexpired List B document, or unexpired List A document. Please note, if the employee originally presented a List B document that was formally extended by the document’s issuing authority, no further action is required.

The USCIS announcement also offers an informational chart outlining the specifics of updating these Forms I-9 – see below.

Credit – USCIS: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/reminder-dhs-to-end-covid-19-temporary-policy-for-expired-list-b-identity-documents

While USCIS does not include this in the reminder announcement, prior USCIS guidance for updating Section 2 differs depending on who reviewed the original List B document and who is now reviewing the new List B (or List A) document. If the individual reviewing the new document is the same, simply record the document information in the Additional Information box and initial and date. See Form I-9 Mark Up provided by USCIS. However, if the individual reviewing the new document is different from the original reviewer, then employers have two (2) options:

  1. Record the document information in the Additional Information box and sign their full name and title, instead of initials – and don’t forget to date!
  2. Complete a new Section 2 and attach to the original Form I-9.

For assistance with updating Forms I-9, preparing for a post-COVID I-9 compliance world, or for general questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and Department of Justice’s Immigrant and Employee Rights section (IER) anti-discrimination matters, please contact the Seyfarth Immigration Enforcement and Compliance group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

By: Dawn LurieLeon RodriguezAngelo Paparelli, and Zachary Blas Perez

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) has announced an important policy change that will benefit noncitizens holding Temporary Protected Status (TPS). The new policy permits USCIS to issue a new TPS travel authorization document, amending the previous mechanism required for TPS to receive foreign travel permission.  This policy change is significant because  noncitizens who enter on this new TPS travel authorization will now be considered as “inspected and admitted,” and accordingly may qualify for adjustment of status to lawful permanent resident (green card) status with an underlying employment-based or family-based immigrant visa petition.

On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum: Rescission of Matter of Z-R-Z-C– as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, announcing a new pathway for persons granted Temporary Protected Status (TPS) to travel outside the United States and be readmitted in a legal status that would allow them, in certain circumstances, to qualify for lawful permanent residency.

This memorandum, written in close consultation with the Department of Homeland Security’s Office of General Counsel (DHS OGC), is an attempt to better harmonize and administer decades of TPS protocols that have been at times inconsistent or infeasible for TPS holders as well as their dependents and other family members.  Just last year, the Supreme Court held, in Sanchez v. Mayorkas, that while a grant of TPS could not be considered an admission, it still constituted a “kind of lawful status” which USCIS has interpreted to make the shortcomings of Matter of Z-R-Z-C- warrant a rescission. (Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021)).

Created by Congress in 1990, TPS is available to eligible noncitizens present in the United States who are nationals of a foreign country that has been designated for temporary protection by the Secretary of Homeland Security.[1]  These countries currently include Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Syria, Somalia, Sudan, South Sudan, Ukraine, Venezuela, and Yemen. All designations of countries for TPS are discretionary, and before any such designation can occur, the DHS Secretary must make a formal finding that conditions in the particular country meet one or more alternative statutory criteria, namely, the presence of ongoing armed conflicts, environmental disasters, or “extraordinary and temporary conditions.”[2]

In general, a noncitizen physically present in the United States who meets the TPS statutory criteria may be granted temporary protection regardless of one’s underlying immigration status and regardless of the lawful or unlawful manner of entry into the country.[3] Broadly, TPS provides protection from removal by DHS, carries with it the inherent right of work authorization incident to TPS status, and allows for the submission to USCIS of an application for advance permission to travel abroad and be readmitted to the US. The USCIS July 1 Policy Memorandum (discussed below) addresses the new process envisioned by the agency for granting pre-departure consent to travel abroad and be readmitted, and explains potential eligibility to qualify for adjustment of status.

Continue Reading Opening the Door to Adjustment of Status with New TPS Travel Authorization Policy

Tuesday, June 28, 2022

2:00 p.m. to 3:00 p.m. Eastern
1:00 p.m. to 2:00 p.m. Central
12:00 p.m. to 1:00 p.m. Mountain
11:00 a.m. to 12:00 p.m. Pacific


Please join Seyfarth’s Immigration Compliance and Enforcement Team as they launch a four-part series focused on critical challenges faced by employers in the current era of more frequent immigration focused audits and investigations.

Employers already know that compliance with rapidly changing I-9 and E-Verify directives from the government is complex and challenging. Couple this with new agreements between agencies to provide access and share information and compliance becomes even more perplexing.

It is critical for employers to ensure that when federal or state agencies send any type of correspondence- or just show up unannounced -your company is prepared.

This series will take a deep dive into the mindset, behaviors and traps of the myriad of federal and state immigration enforcement agencies.


Part 1:  Love Letters From E-Verify – Complexities and Nuances

In our first conversation, our panel will focus on E-Verify compliance and establishing measures essential to proper use of the platform as well as state and federal enforcement. Employers should take any communications from the government seriously and be proactive in their compliance efforts.

We will address:

  • E-Verify account compliance;
  • Mandatory vs. voluntary participation, including FAR contractors; and,
  • E-Verify state requirements and related audits.

Our conversation will also concentrate on account compliance monitoring, including desk reviews, historical reporting tricks and ways to identify issues relating to closing cases, duplicate cases, no cases, and more. Additionally, we will discuss how DOJ’s Immigrant and Employee Rights Section I uses E-Verify data as well how ICE may mine it. Finally, if time permits, we will cover E-Verify compliance challenges, specifically electronic I-9 vendor relationships.

Register Here

Speakers

Dawn M. Lurie, Senior Counsel, Seyfarth Shaw LLP
Angelo A. Paparelli, Partner, Seyfarth Shaw LLP
Zachary Blas Perez, Staff Attorney, Seyfarth Shaw LLP
Leon Rodriguez, Partner, Seyfarth Shaw LLP

If you have any questions, please contact Kate Avery at kavery@seyfarth.com and reference this event.


Future Installments of the Series

  • Immigration Discrimination: U.S. DOJ’s Immigrant and Employee Rights Section.
  • Form I-9 (Employment Eligibility Verification): The Homeland Security Investigations Unit of U.S. Immigration & Customs Enforcement.
  • Site Visits by USCIS’s Fraud Detection and National Security Directorate, and  U.S. Department of Labor Wage and Hour Division H-1B and PERM Labor Certification Investigations.

Learn more about our Immigration practice.

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC and VA. The following jurisdictions may accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. If you have questions about jurisdictions, please email CLE@seyfarth.com.

By: Angelo A. Paparelli  [1]

Seyfarth Summary: In 2004, U.S. Citizenship and Immigration Services (USCIS) – an agency in the U.S. Department of Homeland Security (DHS) – created its Fraud Detection and National Security (FDNS) Directorate.  Since then, FDNS’s immigration officers have frequently appeared, without prior notice, at the business premises of employers that have petitioned USCIS to authorize the employment of noncitizens on U.S. work visas.  USCIS and FDNS describe these encounters as mere “site visit” intended to confirm the facts stated in employment-based nonimmigrant visa petitions.  As part of its “site visit” program, FDNS typically asks for voluminous documentary records, and demands physical access beyond the employer’s front desk in order to photograph the worksite.

This blog post challenges FDNS site visits as unlawful investigative activities that are conducted in violation of the Homeland Security Act of 2002 (HSA).  The HSA contains an express prohibition limiting the legal authority of USCIS solely to the “adjudication” of requests for immigration benefits,  such as work and travel permission, lawful permanent residency and naturalization.  Investigative activities and intelligence gathering under the HSA, the blog post explains, may only be conducted by two other DHS component agencies –  U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

The blog post therefore offers guidance to employers on practical strategies to consider when FDNS knocks at the door.

Continue Reading Challenging Unlawful Demands and Site Visits of USCIS’ Fraud Detection and National Security Directorate (FDNS)

By: Dawn Lurie and Matthew Parker*

Seyfarth Synopsis: On May 3, 2022, U.S. Citizenship and Immigration Services (USCIS) announced an increase to the automatic extension period for certain Employment Authorization Documents (EADs) from 180 days to 540 days. This Temporary Final Rule (TFR) was published on May 4, 2022, will go into effect immediately, and is valid through October 15, 2025. USCIS is soliciting comments on the TFR that must be submitted on or before July 5, 2022.   

TFR Overview

The new TFR, effective immediately on May 4, 2022, and valid through October 15, 2025, will expand the automatic extension period of expiring EADs for certain renewal applicants from the previous length of 180 days to up to 540 days. This rule is in response to the massive backlogs of EAD renewal applications currently pending with the Service, and as described in the USCIS press release, “[t]his temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families while avoiding further disruption for U.S. employers.”

Both employers and employees throughout the country will benefit from the TFR, which reflects the Administration’s willingness to implement a solution to the growing processing time and backlog disaster. The TFR recognizes the incredible challenges companies are facing across the U.S., acknowledging that, “[EAD] renewal applicants are losing their jobs and employers suddenly are faced with finding replacement workers during a time when the U.S. economy is experiencing more job openings than available workers.” Further, the Rule outlines the burden employers and employees alike are facing, and describes the problem as, “[a] result of several converging factors affecting USCIS operations that have been compounded by the COVID-19 public health emergency.”

EADs that are already eligible for the 180 day extension will receive an additional 360 day extension for a total of 540 days. Examples of these categories include adjustment of status applicants, refugees and asylees applicants and beneficiaries, Temporary Protected Status (TPS) applicants and beneficiaries and spouses of E, L-1 and H-1B applicants (with an unexpired I-94 showing related nonimmigrant status). Unfortunately, DACA and OPT-based EAD cards do NOT benefit from the auto extensions.

What is an Automatic Extension?

Originally conceived during the Obama Administration, the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers went into effect on January 17, 2017, allowing the USCIS to issue to certain EAD renewal applicants automatic extensions of the expiration date on their expiring EAD, subject to three (3) criteria. These three (3) criteria are as follows:

  1. The individual’s expiring EAD has a category code eligible for an automatic extension as provided by USCIS. The eligible category codes are A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19.
  2. The individual timely filed the Form I-765, Application for Employment Authorization, for renewal of their EAD before their current EAD expired.
  3. The I-797C, Notice of Action for the filed Form I-765 contains the same category code as their expiring EAD.**

* For category codes, A17, A18, and C26, additional documentation is required to receive the extension of up to 540 days. Individuals with EADs containing these category codes must also present an unexpired Form I-94, Arrival-Departure record indicating the unexpired nonimmigrant status of E-1, E-2, E-2C, L-2, or H-4. These employees will be able to receive an extension on their work authorization for either 540 days from the expiration date on their EAD, or until their Form I-94 expires, whichever is earlier.

**Keep in mind that sometimes the DHS issues a blanket automatic extension of the expiring EADs for TPS beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. For certain TPS beneficiaries (those with EADs containing the category codes A12 or C19), while the I-797C, Notice of Action, is not required to receive the blanket TPS extension, the I-797C will be required in order to benefit from the 540 day automatic extension. TPS is made even more complicated by ongoing litigation affecting certain TPS countries. Hopefully the USCIS will address those affected by the Ramos litigation for countries that have or have not been redesignated.

Another thing to remember is that for TPS beneficiaries presenting an EAD and I-797C Notice, the Notice must contain either the A12 or C19 category, but the category codes do not need to match each other.

Additionally, readers are reminded that the Country of Birth listed on a TPS beneficiary’s A12 or C19 EAD has no bearing on whether the employee is eligible for a TPS and a related automatic extension. Specifically, the country of birth may not reflect a TPS designated country. Hey, @USCIS can you memorialize this somewhere?

Before today, if an employee met the three (3) criteria above, they qualified for a 180 day automatic extension of the expiration date on their expiring EAD. Starting May 4, 2022, those same employees now qualify for a 540 day automatic extension of the expiration date on their expiring EAD. In addition, the 540 day automatic extension also applies to those employees who may have already been experiencing an employment authorization gap due to their 180 day automatic extension lapsing. Accordingly, employers who suspended workers, or terminated with an expectation of rehire, should be prepared to reintegrate these auto-extended employees as soon as possible. This may be challenging for employers with a large number of affected employees.

What’s Needed for the Form I-9?

Employees whose EAD renewal application is pending at the implementation of the TFR will be granted an additional 360 day extension in addition to the 180 extension (total 540 day). We understand that USCIS is preparing detailed FAQs, including how to update the Form I-9. What we know now is that employees eligible for a 540 day automatic extension of their EAD need only present the same documentation as they would or did for a 180 day automatic extension; 1) their expiring (or expired) EAD, and 2) the I-797C, Notice of Action (which meets the criteria above). We also know that the USCIS will begin issuing updated I-797C Notices of Action outlining the new 540 day automatic extension period, but for those individuals who already have an I-797C (or who receive one before the new I-797C Notices are issued), there is no cause for concern. Specifically, those employees can still present the current I-797C (noting the 180 days extension) along with the qualifying EAD to complete the Form I-9 and receive the 540 day extension.

While the USCIS updated the Automatic Employment Authorization Document (EAD) Extension information page, we expect that Section 4.4 of the M-274 Employer Handbook will be updated shortly to describe how employers should record the new extension of the Form I-9. In the interim, for existing employees it would be reasonable to update Section 2 with the new expiration date, and enter “540 Day EAD EXT” in the Additional Information field. Some electronic I-9 systems may find this directive challenging and may only leave you with the option to create a new I-9.  In this case, it will be helpful to ensure the two I-9s are linked and appropriately annotated. In situations where employees were terminated or suspended based on the expired EAD,  the employer may complete Section 3, if appropriate, or a new Form I-9.  In fact the TFR discusses employees who “experienced a lapse in employment authorization and/or EAD validity prior to the effective date of this rule” noting, “their employers must complete Form I-9 by treating the individual’s employment authorization as having previously expired pursuant to 8 CFR 274a.2(c)(1)(ii) but have a choice of either reverifying employment authorization on the employee’s Form I-9 or completing a new Form I-9.”

For new employees, the instructions will likely mirror the existing M-274 guidance, which we have copied here:

In Section 2, the employer must:

  • Enter EAD in the Document Title field.
  • Enter the receipt number from Form I-797C in the Document Number field.
  • In the Expiration Date field, enter the date 540 days from the “Card Expires” date on the EAD (or, for A17, A18 or C26, the expiration date of validity shown on Form I-94, whichever is earlier). This expiration date may be cut short if USCIS approves or denies the employee’s Form I-765 renewal application before the 540 day period expires.

For any questions related to this new TFR, or for any other questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

 

*Matt Parker is a Business Compliance Specialist in the Immigration Compliance and Enforcement practice. He is not admitted to the practice of law.

By: Dawn M. Lurie

Seyfarth Synopsis: On April 25, ICE announced its 13th extension, this time for a six-month period (until October 31, 2022), of the I-9 compliance flexibility rules relating to Form I-9. There is no substantive change in this extension of the policy, allowing for the “in-person” exemption (of identity and work authorization document review), benefiting certain employees and offering flexibility for companies that are phasing back in employees. While we are confident that the government is considering a permanent virtual option, we continue to advise employers to work under the assumption that anyone initially verified using the virtual flexibility will be required to conduct an in-person update as employees return to the workplace, especially in cases where identity was not verified (i.e. those that used the fax/email option). 

Lucky #13 – Extension of the COVID I-9 Flexibility

In a thirteenth extension, ending on Halloween 2022, U.S. Immigration and Customs Enforcement (ICE) posted an unprecedented (it’s been a while since I said that word) six (6) month extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities are now extended until October 31, 2022.  The posting on the website is a bit confusing, as it just updates the December 2021 announcement, and includes an alert attached to the top of the page which indicates the new deadline.

ICE’s announcement affirms that employers who are taking COVID-19 related precautions and offering working in remote or hybrid environments, may continue inspecting I-9 documents virtually for newly hired employees as well as for reverification of work authorizations.  See our prior blog for the guidance and discussion on its forward-facing application, noting that ICE will evaluate a company’s situation “on a case-by-case basis” should a company have used virtual without the workforce being 100% remote from March 20, 2020 to March 31, 2021. Given the confusion and lack of guidance surrounding the directive, we remain optimistic that the government will show leniency for early misunderstandings and misapplications of the original policy.

Continue Reading Trick or Treat: I-9 Flexibilities Extended until October 31, 2022