By  Dawn Lurie and Tieranny L. Cutler

Likely triggered by complications resulting from the COVID-19 pandemic[1] and increases in processing times to replace permanent resident cards, United States Citizenship and Immigration Services (USCIS) announced on January 12 that the agency will issue a revised Form I-797, Notice of Action, for all Form I-90[2] applications filed beginning in January 2021. This I-797 notice will serve as a receipt notice for the I-90, as well as extend the validity of a Permanent Resident Card (“PRC” or “Green Card”) for 12 months from the “Card Expires” date on the front of the card. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification, as well as for travel and identity purposes.

This seemingly small change has more complicated implications for employers than appears at first blush. Continue Reading Another Day, Another Rule to Remember: USCIS Adds New I-9 List A Document Combo

By Dawn Lurie

With a new Administration moving into Washington D.C. amidst tension and confusion, immigration compliance remains top of mind for employers.  I know that because I hear from H.R. leadership, General Counsel’s offices, administrators running small family businesses, and shift managers at local pizza places across the country.  Some companies tell me they continue to “work from home,” some never left the workplace, and others are operating in a hybrid model.  Whatever the industry, wherever the location, and no matter the size, we are witnessing a significant shift in the onboarding process to produce outcomes similar to those achieved in-person; how we complete the Form I-9 is no exception.

The COVID-19 pandemic continues to disrupt technological barriers that prevented remote work in the past. In doing so, it is forcing changes to the onboarding process while simultaneously addressing health and safety concerns. Employers facing these vexing Form I-9 compliance issues and ongoing confusion are hungry for more explicit directives from the government, and in turn, the government is trying to keep pace.  I am hopeful that the new administration, along with the hardworking career government corps, will recognize these challenges and partner with companies as they create effective and safe processes that meet the challenges of 2021, including those hurdles presented in 2020.

Below, we travel back into 2020 in order to flag concerns and frame various I-9 issues for employers, including a slightly updated set of Form I-9 Examples Related to Temporary COVID -19 Policies posted on I-9 Central’s Temporary Policies Related to COVID-19 page, as well as an October 2020 update to the M-775, E-Verify User Manual, concerning Tentative Non Confirmation (TNC) practices. Continue Reading What’s New in the New Year? Initial I-9 Musings & Treasures from 2020

By: Jake Campbell and Gabriel Mozes

Seyfarth Synopsis: Effective January 26, 2021, all international passengers (with minor exceptions) traveling by air must provide a negative COVID-19 viral test to enter the U.S. Alternatively, passengers may provide results proving recovery from COVID-19 with a doctor or physician authorizing international travel.

I. Negative COVID-19 Test Requirement

The U.S. Centers for Disease Control and Prevention (“CDC”) order requires that all internationally arriving U.S. air passengers (ages 2 and above), including U.S. citizens and permanent residents, provide a negative COVID-19 test that was administered within three days of travel. Continue Reading U.S. Requires Negative COVID-19 Tests for International Air Passengers

Blog updated January 7 with USCIS clarifications found below.

As employers across the country started 2021 with optimism for a better year, E-Verify was stuck in 2020, experiencing a short period of technical trouble. The site was down unexpectedly from Monday, January 5 at 1:53 PM EST until Tuesday, January 6 at 8:06 PM EST. Both the Web Services and Direct Access portals were affected.

Background on the Program

E-Verify was first authorized by Congress in 1996, allowing employers to electronically confirm their employees’ employment eligibility to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching the information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS). Continue Reading E-Verify Rings in the New Year with Shadows of 2020

By: Tieranny L. Cutler, Michelle Gergerian, and Jason Burritt

Seyfarth Synopsis:  Previously scheduled to expire on December 31, 2020, Proclamations 10052 and 10014 have been extended by President Trump until March 31, 2021. These visa bans will continue to restrict the issuance of certain immigrant and nonimmigrant visas, as well as travel to the United States by certain nonimmigrants, including those in H-1B, H-2B, J-1 and L-1 status.

The newly issued proclamation also provides the authority to the Secretary of Homeland Security and the Secretary of Labor to recommend any modifications as may be necessary within 15 days of December 31, 2020, and every 30 days thereafter while this proclamation is in effect. Continue Reading President Trump Extends Immigrant and Nonimmigrant Visa Ban

From Seyfarth’s December 7, 2020 Policy Matters Newsletter:

President-Elect Biden has indicated that he will seek to completely overhaul the current administration’s immigration policies, as well rescind the numerous Executive Orders issued by President Trump to enforce those policies. As we discussed in our Election 2020 Special Report, Biden supports expanding guest-worker programs, maintaining family preferences, giving a green card to everyone who earns a doctorate from an American university, increasing refugee admissions, and expanding employment-based visas. Biden, however, will have his work cut out for him, not only in the amount of X-marks he’ll have to scribe — according to the Migration Policy Institute, the Trump administration took over 400 executive actions on immigration between January 2017 and July 2020 — but also in flexing his powers as chief executive of the heavily-bureaucratic, 19,000-employee USCIS office, and a 20,000-employee ICE office. So it should come as no surprise that, as noted recently in the Washington Post, some shifts could take time. But some shifts could also be expedited: Seyfarth’s Angelo Paparelli and Stephen Yale-Loehr presented “four fresh ideas” in a recent blog post addressed to the incoming administration that it could take within the first few months of office — none requiring congressional action. We encourage the read. An additional speedbump in Trump’s immigration agenda was recently raised when a federal judge in California on Tuesday struck down the administration’s policies narrowing eligibility and raising minimum salaries for foreign employees on H-1B work visas. The court found that the administration failed to properly follow transparency procedures and that its claims that the changes were an emergency response to the pandemic’s economic fallout were unsubstantiated.

By Angelo A. Paparelli and Stephen Yale-Loehr

As a new administration takes office on January 20, and the tantalizing prospect of enlightened immigration reforms looms on the horizon, an intriguing question has surfaced on Twitter:

“Is there a progressive version of Stephen Miller? Someone who has (1) put in the time to understand how the immigration system works in great detail, (2) relentlessly committed to changing the system, and (3) is actually politically effective?” Austin Kocher, PhD

As grizzled and tireless proponents of a just immigration system, we humbly nominate ourselves for (1) and (2), and for (3) propose the American Immigration Lawyers Association (AILA). To be sure, our audacity notwithstanding, others are more worthy. Many experts have suggested ways to restore America’s historic stature as a welcoming nation of immigrants. Continue Reading Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration

By: Dawn M. Lurie

Today, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year.  This announcement was expected in light of the increase in COVID-19 cases across the country. The Department of Homeland Security (DHS) agreed to extend the policy until December 31, 2020.

Continue Reading ICE Extends COVID I-9 Rules to December 31-Happy New Year!

By: Dawn M. Lurie

Acting Secretary of Homeland Security Chad F. Wolf extended the Temporary Protected Status (TPS) designation for South Sudan for 18 months, from November 3, 2020 through May 2, 2022. Current beneficiaries who want to maintain their status must re-register Nov. 2, 2020, through January 4, 2021.

The announcement also stated that U.S. Citizenship and Immigration Services (USCIS) automatically extended the validity of certain Employment Authorization Documents (EADs) issued under the TPS designation for South Sudan through May 1, 2021. The information was published in the Federal Register on November 2, 2020.

Continue Reading Last Minute TPS Extension for South Sudan

Buried within the Immigration and Customs Enforcement (ICE) website is seemingly recent guidance regarding how to update “virtual” Forms I-9 after companies return to “normal business operations.” While it’s unclear when the guidance was actually published, we have been predicting an update to the U.S. Citizenship and Immigration Services (USCIS) Form I-9 Examples Related to Temporary COVID-19 Policies released in late June and further updated on July 27. So the fact that this guidance is now appearing comes as no surprise.

By way of background, on March 20, 2020, the Department of Homeland Security (DHS) announced interim guidelines to temporarily ease I-9 compliance for employers operating remotely as a result of the COVID-19 pandemic. ICE has since issued several extensions to the “virtual” guidance, with the latest one currently set to expire on November 19. Under this guidance, employers are authorized to complete the Section 2 verification or Section 3 re-verification process remotely, relaxing the USCIS Form I-9 instructions mandating an in-person review of work eligibility and identification documents. ICE expects the worksite to be 100% remote to utilize the relaxed guidance. This exception, therefore, is not available when employees are physically present at an employer’s work location.

As we have discussed in prior blog postings, virtual I-9 completion is a “two-touch” process. Physical inspection must take place within three business days after normal operations resume. While “normal operations” have not yet been defined by the government, we expect that individual companies – not the government – will define the resumption of “normal operations.” Accordingly, we continue to recommend that businesses memorialize decisions, including “phase-ins” and other timelines, individual employee anomalies, and any related protocols adopted relating to the timing of returning to work.

Continue Reading Hidden ICE Guidance On Virtual I-9s