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 Lurie, Leon Rodriguez, Angelo 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

By: Dawn M. Lurie and Zachary Blas Perez 

Seyfarth Synopsis: USCIS issued long-awaited guidance on how employers should treat certain E and L spouses’ work authorization based on their status when completing the Form I-9. USCIS also confirmed that it will mail updated notices to E and L spouses, who previously received an I-797 approval notice, that can be treated as proof of work authorization.

On March 18, 2022, the United States Citizenship and Immigration Services (USCIS) formalized updated policy guidance on documentation that certain E and L dependent spouses may use to complete Form I-9.

Background

Following the settlement agreement in Shergill, et al. v. Mayorkas, 11/10/2021, No. 21-cv-1296-RSM, the USCIS clarified that E and L spouses would be considered employment authorized incident to their E or L nonimmigrant status, meaning they would no longer be required to apply for an Employment Authorization Document to be work authorized.  At that time, USCIS explained that new steps would be taken to modify the Form I-94 Arrival-Departure Record and allow E and L spouses to be distinguished from E and L children on the face of the document.  USCIS further stated that this notation would be an acceptable List C document for completion of Form I-9.

Completing a Form I-9

USCIS has now updated its Policy Manual to reflect that the E or L spouse notation on Form I-94, specifically E-1S, E-2S, E-3S, and L-2s, may be accepted as evidence of employment authorization under List C of Form I-9.  The Form I-94 record must still be unexpired at the time of verification.  Employers should be prepared to accept and record the Form I-94 of E and L spouses in Section 2 List C of the Form I-9, paying special attention to the new notation on all Forms I-94 from after January 30, 2022.

It is crucial for employers to note the specific designation of this I-94 as a List C, specifically as an Employment Authorization Document issued by the Department of Homeland Security (DHS), otherwise affectionately referred to a List C(7), as it is the 7th List C document listed on the Form I-9.  C7 is a catch-all term for DHS issued documents.[1]

 

USCIS did not designate the annotated I-94 as a List A, in combination with a foreign passport.  This means that E and L spouses will still need to present List B documentation, along with their I-94 (List C) when completing their Form I-9.  List B documents establish identity.  The fact that the Foreign Passport/ I-94 Combination List A was not listed as an acceptable document in the USCIS guidance is a point of contention.  In fact, it is something that we have asked the USCIS to reconsider in light of the fact that it will likely be difficult for some E and L spouses to obtain certain List B identification documents quickly[2].  We will keep you updated.

The Fine Print

There are other issues that will need to be worked out over time. There are less risk adverse folks that are arguing that the specific notations on the I-94 are unnecessary and are considering accepting the I-94 of an E or L spouse without the new notations (still as a List C document). This is not recommended, as the USCIS has now issued this very specific guidance for employers to follow.  However, it is too early for us to know whether Immigration and Customs Enforcement will consider recording an unendorsed I-94, as a technical or substantive I-9 violation. We will be monitoring any enforcement chatter carefully.

Moreover, USCIS confirmed that it will mail notices to E and L spouses over 21 who received an I-797 approval notice through USCIS or who have an unexpired Form I-94 that USCIS issued before January 30, 2022.  This notice, which USCIS will issue around April 1, 2022, will serve as evidence of employment authorization, together with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status.  As always, nonimmigrants, especially those in this category, should be sure to file AR-11 within ten days of changing residences so that USCIS has one’s correct address on file.

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

 

[1] Some employment authorization documents issued by DHS include but are not limited to Form I-94 Arrival/Departure Record issued to asylees or work-authorized nonimmigrants (for example, H-1B nonimmigrants) because of their immigration status, Form I-571, Refugee Travel Document (PDF), an unexpired Form I-327, Reentry Permit , Form N-560, Certificate of U.S. Citizenship or Form N-561, Replacement Certificate of Citizenship (PDF, 40.3 KB), or Form N-550, Certificate of Naturalization or Form N-570, Replacement Certificate of Naturalization (PDF, 176.3 KB). A Form I-797 issued to a conditional resident may be an acceptable List C document in combination with his or her expired Form I-551.

[2] In some areas the Social Security Administration is still closed and there have been reported delays in issuing new SS number. The SS number is generally needed to apply for most state issued identification.

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.