By: Dawn M. Lurie

two green leaves on white cardboard boxesSeyfarth Synopsis: ICE announces an extension to I-9 compliance flexibility rules relating to Form I-9 compliance that was initially granted in March of 2020 at the onset of COVID-19.  It continues to allow 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, as doing so will no longer trigger the in-person requirement for all new hires.  While the government is also warming to the idea of a permanent virtual option, employers should work under the assumption that anyone initially verified using the virtual flexibility will be required to review and record documents in-person as employees return to the workplace.

Close to midnight, on December 15, 2021 U.S. Immigration and Customs Enforcement (ICE) posted a 120-day extension for the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020.  These flexibilities are now extended until April 30, 2022.  For the first time, the announcement was issued several weeks before the current expiration and comes on the heels of a letter sent by SHRM, the Society for Human Resource Management, AILA, The American Immigration Lawyers Association, the US Chamber, and Compete America urging Secretary Mayorkas to extend the flexibilities and announce by mid-December.  Advocacy works.

Staying the Course.

The announcement affirms the last extension which expanded the scope of the in-person exemption benefit to certain employees hired on or after April 1, 2021, who are working remotely due to COVID-19 reasons.  Specifically, the guidance states:

“This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

The original requirement that companies needed to be 100% remote to allow for the use of virtual inspection of identity and work eligibility documents was changed for hires on or after April 1, 2021.

Unfortunately, that guidance is forward-facing and not retroactive.  However, as stated in an earlier blog:

The April 1 date implies that despite employers now being able to verify any remote new hires’ documentation virtually, if employers were not previously operating fully remote and were performing virtual inspections for their remote workers (or in-person workers), they may find themselves in a pickle. In these cases, employers should carefully memorialize their situation, the reasoning for using the flexibility, and, if audited, request that ICE evaluate their situation “on a case-by-case basis” referenced in the original 2020 announcement.

We remain optimistic that the government will show leniency for early misunderstandings and misapplications of the original policy.

In the interim, companies should plan accordingly and consider updating their Forms I-9s in-person, wherever possible, and safe.  As suggested, where appropriate, the authorized representative method serves as a significant time-saver when correctly crafted and implemented carefully.  Review ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021 for guidance on what employers can be doing now.

The Omicron variant is spreading like wildfire heading into the holiday season, and employers continue to struggle with implementing return to work policies, hybrid offerings, and onboarding changes.  Unfortunately, ICE did not ease any burdens in this respect; the Dec 15th guidance includes nothing about what happens when the virtual policy ends.  Organizations, associations, and individual employers alike have urged ICE to outline the wind-down requirements, provide a reasonable amount of time to inspect documents in-person, update expired List B documents (where required), and otherwise, ensure that all original Forms I-9 are accounted for.  The government has also been asked to consider abandoning the second touch required where identity was verified via video and certain other factors are met.  Similarly, requests have been made to reconsider the requirement to update expired List B documents. Only time will tell what the outcomes will be.

A Warmer Future in Store.

In late October, the Department of Homeland Security (DHS) requested input from the public (RFPI)regarding the virtual completion of Form I-9s.  DHS is seeking detailed information from employers regarding the impacts of remote document examination including the “potential costs and benefits of allowing for future remote document examination flexibilities”.  The RFPI also seeks input on Form I-9 modernization generally, including comments on the current List of Acceptable Documents (LOAD), and challenges with E-Verify, in the context of remote document examination. This is an excellent opportunity for companies to discuss the burdens created by the increased complexity of the US Citizenship and Immigration Service’s (USCIS) guidance surrounding accepting identity and work authorization documents not specifically listed on the LOAD, but still allowable. Comments are due on December 27, and all employers, large and small, are urged to share their experiences and comment directly or through an organization.

On December 7th the Fall Regulatory Agenda was released and DHS has targeted next June 2022 for the release of a proposed rule on remote I-9 inspection in an attempt to reduce burdens on employers and employees alike.  The announcement stated, “DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”  This follows USCIS’ ongoing modernization efforts with work focused on improvements to the E-Verify system, including an employee centric TNC process that shifts the responsibility from employers.  2022 promises to be an exciting year for employment eligibility matters.

For assistance with responding to the DHS RFPI or for 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.

This article was originally published as a Legal Update. Click here to access the original post.

By: Dawn M. Lurie and Zachary Perez

In response to continued lengthy processing delays, the United States Citizenship and Immigration Services (USCIS) posted guidance in early September offering an extension to the time certain processing receipts (Form I-797) may be used as evidence of lawful status, for conditional permanent residents that have pending applications. Conditional permanent resident status is granted for a two-year period of time to individuals that received their status through marrying a U.S. citizen, or through job creation and investment via the EB-5 program. Dependent children can also receive such conditional resident status.  In order to remove the restricted conditions on their residency, these residents must file Form I-751 or Form I-829 petitions to prove they have fulfilled the necessary requirements.

This USCIS announcement has Form I-9 implications for employers.

How do I Complete the Form I-9 using the Expired Green Card?

USCIS has begun issuing I-797, Notice of Action, receipt notices that may be used as evidence of lawful status and work authorization for up to 24 months past the expiration date found on a conditional permanent resident card (PRC) or green card. These notices extend the validity of the card and allow it to continue to be used for work and travel.

The expired PRC is not sufficient alone for I-9 purposes, however USCIS does allow employers to accept it, along with an I-797 receipt notice (for the Form I-751 or Form I-829) as evidence of continued status, now for 24 months past the expiration date of the PRC. Specifically, the expired PRC with the Form I-797 indicating USCIS has extended the card’s validity can be used as a List C document on the Form I-9. Employers should record the I-797 receipt number as the document number, and then record the expiration date of the PRC, including the 24 month extension.

Things to Remember

  • Employees who present an expired PRC card/Form I-797 combination, must also present an acceptable List B document that establishes identity.
  • Employers must also reverify the employee’s employment authorization in Section 3 before their extension ends.
  • Employers should always keep in mind that INA §274B permits employees to choose which documents to present to establish identity and employment eligibility. Allow your employees to choose.
    • Accordingly an employee who previously produced an PRC and I-797, is not precluded from producing an alternative List A or List C document during the reverification process.

By: Dawn M. Lurie

On June 9, 2021 U.S. Citizenship and Immigration Services (USCIS) advised the public about its recent updates to the USCIS Policy Manual. Specifically, the USCIS updates:

  • Clarify the criteria and circumstances for expedited processing
    • The guidance discusses emergencies, restores benefits to non-profits, and discusses the relationship between ICE and USCIS when addressing an expedite for someone in removal;
  • Address the circumstances in which officers should issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)
    • This rolls back the Trump Administration’s harsh guidance permitting the issuance of denials of petitions or applications requesting immigration benefits without first issuing an RFE or NOID; and
  • Extend the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.
    • Basically the validity period of new EADs is increased from one to two years, freeing up significant USCIS resources by decreasing the number of EAD applications, also reducing the number of related Forms I-9 reverifications.

The USCIS notice states that “these updates support Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” directing federal agencies to identify strategies that promote inclusion and identify barriers that impede access to immigration benefits, issued by President Biden on Feb. 2, 2021.”

The USCIS Public Engagement office issued an excellent summary of the Policy manual update so we are including its announcement below:

Expedited Processing

Benefit requestors may request USCIS to expedite the adjudication of their immigration benefit requests, such as applications or petitions. USCIS considers all expedite requests on a case-by-case basis. We are updating our policy guidance, primarily in Volume 1, Part A  of the Policy Manual, to clarify the relevant criteria and circumstances.

Highlights

  • Clarifies what USCIS considers an emergency situation, such as a critical need to travel to obtain medical treatment in a limited amount of time.
  • Restores the ability for a nonprofit organization (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural and social interests of the United States to request discretionary expedited service, even when premium processing is available for that benefit.
  • Clarifies that expedited processing of applications for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement.

RFEs and NOIDs

In 2013, USCIS published guidance instructing officers to issue RFEs in cases involving insufficient evidence before denying such cases, unless the officer determined that there was no possibility that the benefit requestor could overcome a finding of ineligibility by submitting additional evidence. In 2018, USCIS rescinded this “no possibility” policy and issued guidance stating that officers may deny benefit requests for lack of initial required evidence without first sending an RFE or NOID.

USCIS is returning to the principles of the 2013 policy and issuing guidance in Volume 1, Part E, Chapter 6 of the Policy Manual.

 Highlights

  • Explains that an officer should generally issue an RFE or NOID if the officer determines there is a possibility the benefit requestor can overcome a finding of ineligibility for the benefit sought by submitting additional evidence.
  • Emphasizes that officers should not issue unnecessary RFEs and NOIDs, such as in cases where the officer determines the evidence already submitted establishes eligibility or ineligibility for the benefit sought.
  • Provides guidance on when and how officers should issue RFEs and NOIDs and the limited circumstances in which officers may deny a case without first issuing an RFE or NOID.
  • Explains timeframes and options for benefit requestors to respond to RFEs and NOIDs.

EAD Validity

USCIS will increase the current one-year validity period on initial and renewal EADs to two years for certain adjustment of status applicants. This will significantly lessen the number of employment authorization requests we receive, allow us to shift limited resources to other priority areas, and ease an unnecessary burden on individuals waiting on the adjudication of their adjustment of status applications. Additional information can be found in Volume 10, Part B, Chapter 4 of the Policy Manual. 

Highlights

  • Effective immediately upon publication, initial and renewal EADs for eligible adjustment applicants will be valid for two years, instead of one year.

For additional information on these updates, see the USCIS Policy Manual. These policy updates are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.

These actions are in line with President Biden’ promise to reduce the bureaucratic barriers associated with immigration processing. This is also reflective of  what USCIS Director nominee stated at her May 26 nomination hearing before the Senate Judiciary Committee, “My most immediate responsibilities, if confirmed, will be to return the agency to firm solvency, resolve dramatically increasing processing times and backlogs, and utilize 21st-century tools.”

Seyfarth applauds these steps in the right direction.

By Angelo A. Paparelli

On June 1, 2021, President Biden heralded the 30 days when Spring transitions into Summer as “National Immigrant Heritage Month,” by issuing a Proclamation that paid homage to immigrants’ contributions past, and offered lofty, aspirational goals:

In every era, immigrant innovators, workers, entrepreneurs, and community leaders have fortified and defended us, fed us and cared for us, advanced the limits of our thinking, and broken new ground. . . .

I have directed Federal agencies to rebuild trust in our immigration system that has been lost, to reach out to underserved communities unable to access the opportunities our Nation offers them, to offer again a welcoming humanitarian hand to the persecuted and oppressed, and to reduce barriers to achieving citizenship and equality.

The Proclamation comes on the heels of three recent auspicious developments:

  1. Orders from the Top. As the New York Times recently reported, “Biden Aims to Rebuild and Expand Legal Immigration,” the White House is reviewing an internal but unpublished May 3, 2021 “46-page draft blueprint . . . [which] maps out the Biden administration’s plans to significantly expand the legal immigration system, including methodically reversing the efforts to dismantle it by former President Donald J. Trump. . .” The plan appears to be the response to President Biden’s February 5, 2021 Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,”  which requires the Secretary of State, the Attorney General, and the Secretary of Homeland Security (in which USCIS resides) to devise a plan within 90 days to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law.”    Among other things, the plan, once implemented, would help high-skilled noncitizens, and farmworkers.  Offering strategies that “could be put into practice without passage of Biden’s proposed overhaul of the nation’s immigration laws,” the plan also features these proposed improvements:

Immigrants who apply online could pay less in fees or even secure a waiver in an attempt to ‘reduce barriers’ to immigration. And regulations would be overhauled to ‘encourage full participation by immigrants in our civic life.’

  1. Immigration Stakeholder Suggestions Invited and Submitted. U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security component which adjudicates requests for naturalization, green cards, work permits, work visas and a host of other immigration-benefits requests, invited public comments in a notice entitled, “Identifying Barriers Across USCIS Benefits and Services,” during a 30-day period that ended on May 19, 2021. Included among the more than 7,390 comments received was one from the 40 immigration lawyers in Seyfarth’s Business Immigration Group (BIG). Our comment – authored by Leon Rodriguez (former USCIS Director under President Obama), Dawn Lurie, Tieranny Cutler, and this blogger – shared with USCIS the results of a customized survey of our clients (ranging from Fortune 100 to midsize companies, including publicly traded and privately held entities). Our immigration clients gave us a bountiful feast of suggested improvements, and we added many of our own, all of which USCIS is now digesting. (Meanwhile, to stay on top of immigration and other public policy news, please subscribe to our Policy Matters podcasts and newsletters offered by Seyfarth’s Government Relations & Policy practice group.)
  2. New Boss Waiting in the Wings. On May 26, 2021, President Biden’s nominee for USCIS Director, Ur Mendoza Jaddou, appeared before the Senate Committee on the Judiciary.  Her immigration qualifications – both in and outside government – are extensive and impeccable.  She gracefully handled Senators’ questions and appears slated for bipartisan confirmation soon.

* * *

To be sure, these portents of fresh changes are tantalizing.  Yet, “the proof of the pudding is in the eating,” a phrase that some attribute to Cervantes’ Don Quixote.  Bluntly stated, however, legal-immigration stakeholders are famished, impatient and ornery.  There is simply no more time for impossible dreaming.  Federal immigration agencies must hurry up!

By: Angelo A. Paparelli and David J. Bier

Seyfarth Synopsis: This is the final installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first, second, third, and fourth installments here.  In total, five installments have been published.

President Biden Should Require Immigration Agencies to Apply the Rule of Lenity to All Decisions

The President should issue an executive order requiring all federal immigration agencies to interpret ambiguous statutes and regulations with leniency in favor of the applicant or petitioner.

Immigration law is commonly referred to as “second only to the Internal Revenue Code in complexity.”[i] It is a convoluted morass of vague and poorly defined terms, making life‐​altering decisions hang on the meaning of unfamiliar and ambiguous terms like “moral turpitude” or subjective analyses about an applicant’s “credibility.”[ii] In the removal context, courts have dealt with this phenomenon by “construing any lingering ambiguities in deportation statutes in favor of the alien.”[iii] The Supreme Court has stated, “since the stakes are considerable for the individual, we will not assume that Congress means to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”[iv] This interpretative method is referred to as “strict construction” or “the rule of lenity.”[v] Continue Reading Require Agencies to Apply the Rule of Lenity to All Actions

Late in the day, on May 26, Immigration and Customs Enforcement (ICE) announced a 90-day extension for remote Form I-9 inspection, allowing flexibilities to continue through August 31, 2021.

While the U.S. appears to have turned a corner in the fight against COVID-19, most companies have yet to formulate and implement back to work policies. Thank you to ICE and US Citizenship and Immigration Services (USCIS), for allowing these employers to head into the holiday weekend without having to worry about the fate of this anticipated extension.  And thank you for the 90 days, rather than the shorter 30 or 60-day extensions issued previously.

The Devil is in the Details

It would not be a exciting blog post, if we didn’t have something interesting to point out. The ICE announcement includes two confusing items: Continue Reading Nothing “new” Other Than a 90 day Extension of Virtual I-9s

On February 17, 2021, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will dispose of any E-Verify records older than 10 years on May 14, 2021.  On May 19, the E-Verify Records Disposal Date was extended to June 4, 2021. This notice provides a reminder to employers that participation in E-Verify requires ongoing maintenance; everyone can benefit from a spring cleaning with a bit of best practices infused in the effort.

What is E-Verify?

E-Verify is an internet based system that compares information from an employee’s Form I-9 to the Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Continuously improving, but not perfect, the system struggles with cracks in its armor, especially when it comes to confirming the identity of a worker. Accordingly employers must remember that use of E-Verify does not guarantee a “safe harbor” from worksite enforcement and that employees who are work authorized in the E-Verify system may in fact not ultimately be work authorized.  However, if the Form I-9 was completed in good faith and if the system is used properly and consistently, E-Verify can provide a rebuttable presumption that there has been no violation of the statute with regard to the knowing hiring of an unauthorized worker. This also assumes the employee has been confirmed as “employment authorized.” This is important in the context of a Immigration and Customs Enforcement Form I-9 inspection.

Why is USCIS Cleaning These Records?

This is part of an effort to comply with the National Archives and Records Administration (NARA) records retention and disposal schedule (N 1-566-08-7).  USCIS does this annually in order to avoid a potential breach of sensitive data.

What Should Employers Do? 

All employers who use E-Verify must either record their employees’ E-Verify case verification number on the employee’s  Form I-9 or attach a copy of the case details to the corresponding Form I-9. Employers who use the system directly (meaning without the use of a WebServices Provider, including an electronic I-9 vendor)  should maintain the Historic Records Reports with their Forms I-9.

For any E-Verify records that are dated on or before December 31, 2010, E-Verify employers will have until June to download case information from the Historic Records Reports. It is very important to maintain information about the E-Verify cases of their employees, so retrieving these records is considered a best practice This report includes:

  • Company name and location;
  • Initiated date and verification case number;
  • Employee name and date of initial resolution;
  • Date of additional resolution and final status; and
  • Case closure date and case closure description.

To download the Historic Records Report, Employers should log-in to the E-Verify website, click on Reports, select Historical Records Report, and then select Run Report. E-Verify will generate a downloadable file with the employer’s report.

Form I-9 regulations require that employers maintain Forms I-9 and, presumably, the related E-Verify information for one (1) year after termination or three (3) years after the employee’s date of hire; whichever is later.

Employers who participate in E-Verify via a third party vendor, including an electronic I-9 system should contact the company to ensure that all related information is maintained in the system and that no additional information or action is necessary.

Best Practices

USCIS protects E-Verify against system misuse through monitoring and compliance (M&C) activities, such as identifying and trying to resolve compliance issues, detecting employer misuse, notifying employers of noncompliant behaviors including discriminatory practices, contacting employers about potential case processing errors and conducting desk reviews and site visits to assist employers with E-Verify program compliance.

In recent years these M&C activities have increased, and E-Verify has taken steps to “clean-up” and improve the system, including mandating closure of  timeworn Tentative NonConfirmation (TNC) cases, force-closing dormant accounts and increasing cooperation with other agencies.

Spring cleaning affords employers a time to not only to archive data, but also to set a cadence of running reports and reviewing E-Verify related I-9 practices to detect and address issues including:

  • updating the listing of hiring sites and company contracts in the Memorandum of Understanding to reflect accurate addresses and process owners;
  • updating user roles and access for only designated, active, employees
  • open cases, including TNCs where the employee did not sign, or was not provided the Further Action Notice;
  • employees that do not have attached “employment authorized” findings (where a case was ran and closed for “incorrect data” but a new, companion case was never opened;
  • queries that were closed with a Final NonConfirmation but the employee is still working for the company;
  • trends that indicate additional training is needed for certain I-9 completers, including a high number of case closures for incorrect data;
  • missing E-Verify numbers or case details associated with the Form I-9;
  • systemic late completions of E-Verify; and
  • failure to maintain List A document copies, as mandated by the E-Verify Memorandum of Understanding;

While E-Verify participation is free, ensuring compliance and maintaining good hygiene in the system does require time and effort. Setting up best practices, with oversight by a dedicated owner, is key to minimizing exposure.

For questions regarding these policies, I-9 compliance, defending employers involved in worksite enforcement audits or actions, E-Verify compliance, LCA and H-1B compliance, and DOJ anti-discrimination matters, contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

By: Angelo A. Paparelli

Seyfarth Synopsis: This is the fourth installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first, second, and third installments here.  A total of five installments will be published.  Please stay tuned for the final update.

Prohibit Regulatory Actions on USCIS Forms

USCIS should amend its regulations to stop automatically incorporating all form instruction changes into its regulations, bypassing notice and public comment procedures.

USCIS requires employers and applicants for immigration benefits to use forms that it creates to collect information.[i] Along with these forms, USCIS publishes detailed instructions that explain to applicants how they must fill out the form and the types of information or evidence that must be provided. USCIS’s regulations currently assert that all form instruction changes are incorporated into the regulations themselves.[ii] The clause allows the agency to evade a slew of federal statutes and presidential directives including the Administrative Procedure Act (APA), the Regulatory Flexibility Act, Executive Orders 12866 and 13563, and OMB Circular A-4.[iii] It allows the agency to effectively change its regulations with only minimal notice under the Paperwork Reduction Act. Continue Reading Prohibit Regulatory Actions on USCIS Forms

By: Scott Hecker and Kevin Young

Post originally appeared as a Legal Update on Seyfarth’s News & Insights Page link here. 

Gone are the days when the U.S. DOL’s Wage & Hour Division (“WHD”) invited employers to proactively identify and collaborate with the Division to fix their wage and hour missteps. Closed is the chapter in which employers could expect WHD to stand down on the threat of double damages outside of egregious cases. After years of a prior administration focused on compliance assistance, there’s a new guard at the DOL, and its approach thus far might be described as less carrot and more stick.

We have observed the shift at WHD both through formal announcements and anecdotal experience. Mere weeks after the new administration’s arrival, the DOL confirmed its termination of the PAID program, which invited employers to conduct self-audits and work with WHD to remediate identified issues and provide back wage payments to employees. And just last month, the Division issued new guidance to its field staff confirming a reversal of prior policy that reserved the imposition of liquidated damages for rare and egregious cases.

Unsurprisingly, these shifts in policy have been coupled, in our experience, with a change in the temperament and approach of many WHD investigators who knock on employers’ doors and pursue investigations. We’ve seen more investigators push for near-instantaneous document production, threatening use of subpoena power or imposition of civil money penalties and citing a regulation requiring employers to make documents available for inspection within 72 hours of WHD’s demand. Some have rapidly issued investigatory conclusions to employers, sometimes with document requests still pending, both in FLSA cases and in the prevailing wage law context. Demands that employers enter into compliance agreements drafted by WHD also seem to be increasing in popularity.

Employers we work with are linked by their desire to do right by their employees and comply with the FLSA. Certainly WHD and its investigators want the same. But for many businesses, the change in approach at the Division, from policymakers at the top to enforcement agents in the field, presents a new type of pressure that demands a different level of preparedness.

So what can employers do when facing increased pressure from WHD? Here are a few tips:

  • Ensure that records are in order. WHD has broad authority to request FLSA-related records required to be maintained under 29 C.F.R. Part 516. All employers should take proactive steps to ensure that their records required under these regulations, as well as other documents pertinent to wage-hour compliance, are in good order so that they can be efficiently accessed and reviewed if the WHD comes knocking.
  • Be prepared for the knock. Employers operating across multiple physical locations should ensure that front-line managers know what to do when an investigator from any government agency, including WHD, shows up in person, sends them a letter, or contacts them by phone. While investigators should be treated with the utmost respect, their inquiries should be promptly deferred to a pre-designated point of contact who can help coordinate a response. We encourage employers to carefully consider what their response team and protocols should look like.
  • Be respectful and reasonable. Responding promptly and respectfully to an investigator’s inquiries should help limit fireworks in a potentially combustible situation. While WHD has fairly broad subpoena authority, it’s fair to question whether the Division would get much traction in court in the event that an employer isn’t objecting to or stonewalling an investigator’s requests, but is simply asking for a more reasonable approach, whether in terms of time to respond or the types of documents to produce.
  • Seek counsel. With WHD becoming increasingly zealous with its demands—both in terms of what must be produced and when—the potential for business disruption and missteps is greater than ever. We strongly encourage employers to retain counsel familiar with these investigations to assist. Experienced and capable counsel can help to manage the flow of information and work with the investigator to identify efficiencies to avoid overburdening an employer’s personnel. When necessary, counsel can support employers who choose to contest WHD’s conclusions.
  • Self-audit. The FLSA’s statute of limitations forces employers to live with missteps for two (and sometimes three) years, and the termination of programs like PAID makes it more difficult to resolve those missteps in a decisive way when they are identified. As a result, there’s no time like the present for employers to take reasonable steps to ensure compliance. The need is even greater in businesses where employees are performing different duties, or working in different settings or circumstances, as a result of the pandemic. Areas of focus will vary by business, but at a minimum they should include exempt classification, recordation of all hours worked, and proper calculation of overtime pay. As noted in our update last month, Seyfarth’s FLSA Handbook offers useful material on these topics, including:
  1. Chapter 14, “Compliance and Prevention Matters,” which provides an overview of steps employers can take to comply with wage and hour laws, and an outline to assist employers in structuring their own self-assessment process and to address any issues identified through that process.
  2. Chapter 7, “Exempt Employees,” which explains the most common, “white collar” minimum wage and overtime pay exemptions.
  3. Appendix 8, “Sample Job Assessment Questionnaire Form” which contains a practice and user-friendly set of recommendations to assist employers in reviewing exempt classifications.

As President Biden’s appointees settle in at WHD, we expect to see ramped up enforcement not only under the FLSA, but also under the Davis Bacon Act, Service Contract Act, and other statutes in the Division’s wheelhouse. Prevailing wage laws may represent a particular area of emphasis, given the Biden Administration’s focus on infrastructure projects.

In short, employers must be prepared for a shift in approach at the Division and be ready to demonstrate and defend their compliance. Please feel free to reach out to the authors or your friendly, neighborhood Seyfarth attorney with any questions.

By: Angelo A. Paparelli

Seyfarth Synopsis: This is the third installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first and second installments here.  A total of five installments will be published on a weekly basis.  Please stay tuned for additional updates.

USCIS Should Enforce Its Policy against Broad-Brush Requests for Evidence

USCIS Policy Manual should reinforce an existing agency policy memorandum banning broad‐​brush requests for evidence (RFEs) and notices of intent to deny (NOIDs) and track RFEs and NOIDs by individual adjudicators.

During immigration adjudications, USCIS issues RFEs or NOIDs to give applicants an opportunity to correct deficiencies in their applications. RFEs are commonly issued for family‐​based applications and for employer‐​sponsored work visas like the H-2B for nonagricultural workers and the H-1B for workers in specialty occupations at U.S. companies. The share of work visa petitions with an RFE nearly doubled from 2015 to 2020 (Figure 8). Unnecessary RFEs or NOIDs can add additional work and costs for employers or lead to denials, which would thus prevent eligible individuals from obtaining or keeping the immigration benefits the law allows.

 

 

 

 

 

 

 

 

 

RFEs 2015: 23%
RFEs 2016: 22%
RFEs 2017: 23%
RFEs 2018: 36%
RFEs 2019: 39%
RFEs 2020: 40%

 

 

A 2005 USCIS policy memorandum prohibits issuing RFEs “for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is required” because it concludes broad‐​brush RFEs “overburden our customers, over‐​document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents.”[i] USCIS will often create “template” RFEs that generally describe issues that can come up, but the memorandum tells adjudicators not to “‘dump’ the entire template in [an] RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent.”

Despite clear headquarters instructions, these requirements are uniformly ignored by USCIS adjudicators, and boilerplate RFEs are now routine. The USCIS Ombudsman has described how USCIS will issue RFEs for information already provided by the applicants,[ii] and one court noted that USCIS had “issued an RFE requesting nearly identical information as it did when it last reviewed the petition.… Although not mirror images, the information requested is the same. [The employer and the H-1B beneficiary] have already provided this information in response to the defendants prior RFE.”[iii]

To remedy this problem, USCIS should add a new chapter in its Policy Manual reaffirming the binding nature of the 2005 policy memorandum and requiring supervisory review when adjudicators issue all‐​encompassing, broad‐​brush, or template RFEs and NOIDs. It should also extend the memorandum to Notices of Intent to Revoke previously approved petitions. Moreover, it should expressly note all interim adjudications as to specific legal issues of eligibility for the immigration benefit sought to avoid wasting the time of the applicant or petitioner addressing already resolved issues. USCIS should also be required, by executive order or otherwise, to collect statistics on the ID code (but not the name) of adjudicators and begin to report the frequency of RFEs and NOIDs and the resulting outcome of the adjudication. In this way, renegade adjudicators who fail to comply with the requirement of the Administrative Procedure Act that agency decisions be reasonably explained can be identified.

 

[i] William R. Yates, “Requests for Evidence (RFE) and Notices of Intent to Deny (NOID),” U.S. Citizenship and Immigration Services, HQOPRD 70/2, February 16, 2005.

[ii] U.S. Citizenship and Immigration Services Ombudsman, “Annual Report 2015,” June 29, 2015; and U.S. Citizenship and Immigration Services Ombudsman, “Annual Report 2016,” June 29, 2016.

[iii] Relx, Inc. v. Baran, et al., 2019 U.S. Dist. LEXIS 130286 (August 5, 2019).