Seyfarth Synopsis:  USCIS Announces the FY 2020 H-1B Cap Reached.

On April 5, 2019, United States Citizenship & Immigration Services (USCIS) announced that it received sufficient H-1B petitions to meet the regular H-1B quota (or “cap”) for Fiscal Year 2020, which begins on October 1, 2019. This means that USCIS received more than 65,000 H-1B petitions in the first week of filing (April 1 – April 5).  USCIS will next determine if it received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the Master’s cap.

Seyfarth Synopsis: The Deferred Enforced Departure (DED) work authorization for eligible Liberian nationals has been extended automatically until March 30, 2020. While the previous wind-down period for DED was set for March 31, 2019, President Trump, on March 28, 2019, issued a presidential memorandum directing Secretary Nielson to provide continued work authorization for an additional 12-months.

On April 3, the US Citizenship and Immigration Services (USICS) published notice in the Federal Register with information on the six-month automatic extension of employment authorization documents (EADs) through September 27, 2019. The notice also provides guidance for Liberians with DED status on how to apply for their EAD for the full 12 month period, through March 30, 2020. For an employee with a current DED-related EAD with A-11  under “category” that expires on March 31, 2019, employers may rely on the Federal Register notice as evidence of continued work authorization until September 27, 2019 to update the employee’s Form I-9. After this date, the employee should present their new EAD to update their Form I-9.

How to Update an Existing Employee’s Form I-9?

For an existing employee who presented a DED-related EAD that has now been auto extended, the employer must update their Form I-9 to reflect the changes. Employees may choose to present their EADs to their employer as proof of identity and employment authorization for the Form I-9 through September 27, 2019.

In Section 1, the employee should:

1. Draw a line through the expiration date and write a new expiration date. If the Federal Register notice is used for the automatic extension, the new date in Section 1 should be September 27, 2019. If the employee presents an updated EAD, the expiration date in Section 1 should be the expiration date on the document.

2. Initial and date the correction.

In Section 2, the employer should:

1. If the Federal register notice is used:

a. Draw a line through the expiration date in Section 2 and write a new expiration date.

b. Write AUTO EXTENDED UNTIL September 27, 2019.

c. Initial and date the correction.

2. If the employee presents a new EAD or documents showing update in status:

a. Complete Section 3 in the current version of the Form I-9.

It is important to note that the automatic extension is not a reverification. Accordingly, Section 3 is not used in the example above. That said, once Section 3 is completed, an auto-extension could be recorded on the date in Section 3.

How to Complete an New Employee’s Form I-9?

In Section 1, the employee should:

• Check “An alien authorized to work until” and enter September 27, 2019, as the “expiration date”.

• Enter their Alien Registration Number/USCIS Number where indicated.

In Section 2, the employer should:

• Determine if the EAD is automatically extended 180 days by ensuring that it has category A-11 and has a March 31, 2019, expiration date.

• If the EAD has been automatically extended, the employer should:

• Write in the document title.

• Enter the issuing authority.

• Provide the document number.

• Write September 27, 2019, as the expiration date.

What’s Happens After 9/27/19?

Before the start of work on September 28, 2019, employers will required by law to reverify the employee’s employment authorization in Section 3 of Form I-9. If the original Form I-9 was a previous version, the employer must complete Section 3 of the current version of Form I-9 and attach it to the previously completed Form I-

My company participates in E-Verify, how do we verify a new employee whose EAD has been automatically extended?

Employers should use the data from the Form I-9 and record the auto-extension date for the expiration date of the EAD card.

What Else Do Employers Need to Know?

It is critical that those responsible for the Form I-9 process understand how, and when, to record TPS auto-extensions and Sections 2 and 3 updates. This avoids exposure to fines and penalties associated with incorrectly completed I-9s. We’ve written about the tremendous increase in enforcement activity in 2018, and watched the Administration “reduce the demand for illegal employment and protect employment for the nation’s lawful workforce.” It’s clear that Immigration and Customs Enforcement (ICE) plans to continue building on a strategy that includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections. Be prepared for 2019 as ICE continues using Form I-9 audits and civil fines to encourage compliance. We also anticipate a renewed focus on the IMAGE program and other employer outreach in an attempt to partner with employers acting in good faith and reserve their attention for egregious violators.

By: Deirdre M. Murphy

The following is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.

Seyfarth Shaw’s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.  If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.

Seyfarth Synopsis: On March 14th, the UK Parliament voted in favor of an extension to Article 50, which is the legal mechanism to enable the UK’s exit from the EU. The non-binding vote seeks to delay the departure date by three months, from March 29th to June 30th, 2019. However, any extension must be agreed upon by the other 27 EU countries. Continue Reading Brexit: UK Parliament Votes to Delay Departure

Seyfarth Synopsis: On Friday, March 22, 2019, Seyfarth Shaw’s Immigration Compliance and Enforcement Group invites you to join the first webinar in our new Compliance Chatter Series: Inside E-Verify

While, following the federal government shutdown, E-Verify has returned to a modicum of normality, increasing audits and other government oversight activities mean that employers need to pay careful attention to compliance issues in their use of E-Verify. Up until recently there has been little or no oversight of the FAR E-Verify rule; that is expected to change in the coming year. And, growing calls on Capitol Hill for mandatory E-Verify for all employers mean that these issues may affect all employers before long.

Employers need to stay ahead.

In this webinar offered by the Seyfarth Shaw Immigration Compliance and Enforcement Team, we will explore the following topics:

  • The role of the US Citizenship and Immigration Service’s (USCIS) E-Verify Monitoring and Compliance program
  • What USCIS is looking for when they conduct reviews and what you should be looking for before you are reviewed
  • Next steps and timing for mandatory E-Verify web services updates, and the impact on companies using electronic Form I-9 vendors
  • Expected E-Verify legislative changes
  • Dealing with state and local E-Verify regulations and STEM related mandates
  • E-Verify-related considerations when deciding on Electronic I-9 System

Be on the lookout for an invite for the next upcoming webinars in our series:

  1. Social Security “No-Match” Letters Coming to Your Mailbox Soon
  2. E-Verify, Government Contractors and the FAR Clause 10 years Later

This program will be moderated by Chair of Seyfarth Shaw’s Government Relations and Policy Group, Randy Johnson.

Cost:  While there is no cost to attend, registration is required.

Friday, March 22, 2019

1:00 p.m. – 2:15 p.m. Eastern

12:00 p.m. – 1:15 p.m. Central

11:00 a.m. – 12:15 p.m. Mountain

10:00 a.m. – 11:15 a.m. Pacific

* Connection details will be emailed the day prior to the event

If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

By: Dawn M. Lurie and Greg Morano*

On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.

Continue Reading TPS Update: Last Minute Automatic Extensions For El Salvador and Three Other Countries

By: Dawn Lurie

Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th.  The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS).  Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown.  USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it.  We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.  

With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics.  Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.

Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown.  If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames.  For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems.  Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues. Continue Reading E-Verify Thawed: The Government Reopens but Guidance is Messy

Over the past few days, I’ve received a large number of emails and calls from stressed out clients asking about the lack of access to E-Verify. Do not panic, employers will not be penalized as a result of the E-Verify operations shutdown.

E-Verify is the U.S. Citizenship and Immigration Service’s (USCIS) internet-based system that compares information from an employee’s Form I-9 to Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility.

Since E-Verify is not fee based, the current lapse in appropriated government funding affects the program. Employers will not be penalized for any delays in creating E-Verify cases.  However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the E-Verify system. We expect USCIS to issue guidance—as they have during prior shutdowns— suspending the “three-day rule”  which mandates creating a query within three day of starting work for pay, for any case affected cases.  Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time. Continue Reading Government Shut Down= E-Verify Shut Down

By: Dawn M. Lurie and Greg Morano*

Seyfarth Synopsis:  On October 31, 2018, the Department of Homeland Security (“DHS”) announced that it would preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador.  To comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) protects the TPS designation for each country and provides automatic extensions to existing work authorization documents.  TPS and related documentation for Nicaragua and Sudan are now automatically extended through April 2, 2019.  The TPS expiration dates for El Salvador and Haiti remain unchanged; September 9, 2019 for El Salvador and July 22, 2019 for Haiti.

TPS: What is the Status of the Program?

The Trump Administration attempted to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador.  On October 3, 2018, a federal judge issued a preliminary injunction to prevent the termination of TPS and loss of work authorization for TPS beneficiaries.  The court case is ongoing with DHS appealing the injunction order to a higher court.

If the court case is not fully resolved by the time a designated TPS is set to terminate, DHS will issue a Federal Register notice extending TPS documentation for nine months.  This means that your employees will continue to work without interruption, but you will need to update Forms I-9 with the “Auto-Extensions”.  For assistance with identifying automatically extended documents and executing the automatic extensions, see our prior post here.

If a higher court permits DHS to terminate TPS, the beneficiaries’ status will terminate either 120 days after the court order, or on the TPS termination date, whichever is later.

Seyfarth will continue to monitor the court case and provide updates. Continue Reading DHS Complies With Court Order, Preserves TPS for Four Countries

[Blogger’s Note:  Today’s post originates from a discovery – a gem hidden in plain sight – first brought to my attention by  Gabe Mozes, my immigration partner at Seyfarth Shaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services (USCIS) pursues extralegal, pretextual grounds, far afield from its supposed expertise, to deny employment-based requests for immigration benefits. In the birthing process, this post generated a slew of exchanges by email between us, much of it involving a friendly dispute over the eventual title. Initially, I proposed, “USCIS ~ The ‘Expertly’ Inexpert Immigration Agency.” He parried with, “What Disclaimer? USCIS Ignores DOL Instructions Not To Use OOH for Legal Purposes.” I responded with the suggestion to add before “USCIS” in the title, “Sciolist” (“[one] who pretends to be knowledgeable and well informed”), or “Ultracrepidarian” (“one who is presumptuous and offers advice or opinions beyond one’s sphere of knowledge”). You get the point, we compromised. His genial if begrudging email acceptance expressed mild disappointment that the post below beats around the bush: “[While] I like your angle, my original intent was to be more direct and hard-hitting.  I may draft a separate one. The time for skirting around the edges is over.”  So stay tuned.]

 

In our increasingly complex and specialized world, we all seek out experts — be they plumbers, arborists, fertility specialists, immigration lawyers, or other categories of seasoned practitioners. Why? Because getting the right result is important. True or not, experts are usually seen as having more than ordinary knowledge because they are credentialed through education, training, skill, long experience, or a mélange of these attributes.

Reliance on experts — most people generally assume — is preferable to taking a chance on an amateur. This assumption underlies a venerable judge-crafted principle of administrative law known as the deference principle, i.e., if the words in a statute are ambiguous, courts will ordinarily defer to an administrative agency’s interpretations of its own regulations administering the law.

The “principle of deference to administrative interpretations” – on its face – makes logical sense, as the U.S. Supreme Court recognized in its long-standing precedent decision, Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984) (Chevron). The principal rests on the hallowed concept of judicial restraint, and the recognition by the courts that whenever Congress enacts broadly applicable laws , it may also confer on relevant Executive Branch agencies the authority to interpret and implement what may later involve situations which Congress perhaps never anticipated:

[The deference principle applies whenever a] decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. Chevron, 467 US at 844. (Emphasis added.)

But what if a plumber, after merely skimming Arboriculture for Dummies, were to offer expert advice on how to cure diseased trees ? For a homeowner to defer to the plumber’s advice would be sheer folly.  Equally absurd would be if a seemingly infertile couple were to rely upon the guidance of an immigration lawyer expounding on advanced techniques of in vitro fertilization.

Unfortunately, however, ultracrepidarianism happens every business day at USCIS (the agency within the Department of Homeland Security charged with determining eligibility for such immigration benefits as work visas, travel permits, green cards, and naturalization). USCIS’s Immigration Service Officers (ISOs or simply, adjudicators) routinely offer ill-informed proclamations about immigration issues which Congress has rightly tasked the DOL to address and resolve.

Sadly, this has been going on for decades, not only in USCIS but also at its agency predecessor, Immigration and Naturalization Service (INS), where the former INS General Counsel cautioned INS that it had no authority to interfere with decisions by Department of Labor (DOL) that an employer had violated DOL H-1B (specialty-occupation visa) regulations, and therefore must be debarred by INS from sponsoring employment-based requests for immigration benefits.  See, INS GENCO Opinion, CO 212(n)P (April 12, 1994).

For years now, USCIS’s ISOs have blindly and lazily “borrowed” from the hard work, expertise, data repositories, research materials, and regulations of the DOL, a distinct federal department with specialized immigration-related domain knowledge, experience and training over such employment-related matters as job requirements, wages, and working conditions.

One class of the USCIS adjudicators’ favorite pontifications are the inferences they draw from the Occupational Outlook Handbook (OOH), a DOL Bureau of Labor Statistics (BLS) publication intended to provide the public with “career information on duties, education and training, pay, and outlook for hundreds of occupations.”

When penning decisions denying employment-based immigration benefits, USCIS adjudicators unfortunately are wont to wax poetic about statements in the OOH as if they were spouting “thou shalt nots” from the Decalogue. For example, in response to U.S. employer visa petitions seeking the okay to employ or continue employing H-1B workers in specialty occupations, USCIS officers routinely issue Requests for Additional Evidence (RFEs) stating that the agency “routinely consults the Department of Labor’s [OOH] for information about the duties and educational requirements of particular occupations.” USCIS then uses the OOH description for a particular job, say a Management Analyst, to argue that the position does not qualify for an H-1B under the “specialty occupation” standards at 8 CFR § 214.2(h)(4)(iii)(A). This is because ISOs interpret the OOH as saying that the job cannot be a specialty occupation since some employers are willing to hire persons with a bachelor’s or master’s degree in various academic majors, or that a small percentage of employers will accept someone with less than a baccalaureate degree.

The problem with the USCIS adjudicators’ wholesale lifting of OOH excerpts – which are often taken out of context or misquoted – is that ISOs completely disregard the BLS’s own published restrictions contained in its “Disclaimer” accompanying the OOH, which provides in relevant part:

[The] OOH provides a general, composite description of jobs and cannot be expected to reflect work situations in specific establishments or localities. The OOH, therefore, is not intended to, and should never, be used for any legal purpose. For example, the OOH should not be used as a guide for determining wages . . . BLS has no role in establishing educational . . . standards for any occupation. . . The education information in the OOH presents the typical requirements for entry into the given occupation and does not describe the education and training of those individuals already employed in the occupation. . . . [The] information in the OOH should not be used to determine if an applicant is qualified to enter a specific job in an occupation. (Emphasis added.)

Another illustration confirming USCIS adjudicators’ purloining of OOH excerpts is found in their common practice of rigidly relying on this publication when deciding whether long-delayed green card applicants can invoke the “job flexibility” benefits granted by Congress that permit workers to change jobs or employers without being required to go back to the end of the immigrant visa queue.  This “job-portability” law allows green card applicants to pursue career advancement despite USCIS or visa-quota backlogs of more than six months as long as the new job is in the “same or [a] similar occupational classification.” See, the USCIS Adjudicator’s Field Manual, Chapter 20.2(e), Note 5 (“ISOs may reference additional resources to determine whether [two] jobs are in the same or similar occupational classification(s), including, the DOL Bureau of Labor Statistics’ [OOH]”).

Unfortunately, USCIS adjudicators’ misbehavior in poaching from the DOL is not limited to the OOH. Yet another USCIS encroachment on DOL’s immigration turf involves reliance in the H-1B “Specialty Occupation” work visa category on an outdated “itinerary” requirement incorporated into agency regulations based on the immigration laws in existence in 1952, a rule intended to maintain agency oversight of the intra-U.S. meandering of athletes and entertainers (who have had their own visa categories, the O and P classifications, since 1990). Immigration litigator, Jonathan Wasden, in a tour de force complaint, ITServe Alliance v. USCIS, filed October 11, 2018 in the Federal District Court for the DC Circuit, calls out USCIS interloping in its recurrent attempts to define the H-1B “area of intended employment,” found in DOL regulations, even though USCIS only has statutory authority to determine if the job and the worker involve a specialty occupation.

Whatever the validity or benefit of the agency deference principle in other contexts, its application to the USCIS adjudicators’ mass appropriation and misapplication of DOL source materials must be stopped. USCIS must not be given Chevron deference when the DOL itself cautions that the OOH: (1) should “never” be used “for any legal purpose,” (2) “should not be used to determine if an applicant is qualified to enter a specific job in an occupation,” and (3) “does not describe the education and training of those individuals already employed in the occupation.”

Simply put, the courts or Congress should take USCIS out of the business of pilfering and impersonating DOL expertise.

By: Randy Johnson and Walt Mullon

Senate Returns to Work. On Wednesday, the Senate returned from its nearly two-week recess to resume its rare August work period. The chamber has two more federal appeals court judges teed up for confirmation and could also consider a third spending package this week. These come on top of a record-breaking string of confirmations, as there have been 24 appellate judges confirmed by the Senate since President Trump was sworn in, the highest number for a president’s first two years in office. There are currently 13 remaining vacancies on the U.S. Court of Appeals.

Continue Reading Seyfarth Shaw Policy Matters Newsletter – August 16, 2018