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

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

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

During the government shutdown employers will not be able to enroll in the E-Verify, access and action cases, or edit accounts. Employers are reminded not to take any adverse action against an employee, even where a TNC case cannot be addressed. Employees should be allowed to begin or continue to work during this time, in spite of the E-Verify delays.

Remember that the government shut down has nothing to do with an employer’s responsibilities to complete the Form I-9 timely.  Specifically, employees are required to complete Section 1 of the I-9 on or before the first day of employment, and employers must complete Section 2 of the I-9 no later than the third business day after an employee begins work for pay.

E-Verify is considered a best practice, but companies considering enrolling should understand their responsibilities, as well as the related benefits,  prior to signing the Memorandum of Understanding with the government.

For more information and/or for E-Verify monitoring and training requests, please contact Dawn Lurie at dlurie@seyfarth.com.

By: Dawn M. Lurie and Greg Morano*

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

TPS: What is the Status of the Program?

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

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

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

Seyfarth will continue to monitor the court case and provide updates.

Federal Register Notice Provides Automatic Extensions for Sudan and Nicaragua

Provided that the affected TPS beneficiaries remain eligible for TPS, properly applied for TPS re-registration, and their individual TPS has not been withdrawn, the Notice automatically extends the following documents for Sudanese and Nicaraguan TPS employees through April 2, 2019- TPS Employment Authorization Documents (EADs) with category codes of:

  • “A-12” or “C-19”;
  • Forms I-797 Notice of Action (Approval Notice); and,
  • Forms 94.

 

 

 

 

For the EADs, they must have had one of the following expiration dates for Sudan or Nicaragua:

  • 11/02/2017
  • 01/05/2018
  • 11/02/2018
  • 01/05/2019

Sudanese and Nicaraguan TPS beneficiaries may show the Notice and their EAD to their employer to demonstrate their automatic extension through April 2, 2019.

For the Forms I-94 and I-797, they must have had one of the following dates for Sudan or Nicaragua:

Sudan

Beginning date of Validity End date of Validity
May 3, 2016 November 2, 2017
November 3, 2017 November 2, 2018

Nicaragua

Beginning date of Validity End date of Validity
July 6, 2016 January 5, 2018
November 3, 2017 January 5, 2019

 

Illustration of where to locate eligibility code and dads of fling.

 

 

 

 

 

Haitian and El Salvadoran TPS Work Authorization Document Expiration Dates Remain Unchanged

Haitian and El Salvadoran TPS beneficiaries who were approved for re-registration have either received, or will receive, TPS-related documentation that they may present as evidence of work authorization.  Specifically, Haitian TPS beneficiaries will have TPS-related documentation valid through July 22, 2019 and El Salvadoran TPS beneficiaries will have valid documentation through September 9, 2019.  The recent automatic extensions announced in the Notice do not apply to them.

How Do I Update the Employee’s Form I-9 for the Sudan and Nicaragua Automatic Extensions?

If you have an existing employee who presented an EAD that has now been automatically extended, the employee’s Form I-9 should be updated to reflect the extension.

For Section 2, the employer should:

  1. Draw a line through the expiration date written in Section 2;
  2. Write the new expiration date next to the previous, now crossed out, date.
  3. Initial and date the correction in the margin of Section 2.
Example of Auto Extension for existing employee

For Section 3, the employer should:

  1. Draw a line through the expiration date written in Section 3;
  2. Write the new expiration date next to the previous, now crossed out, date.
  3. Initial and date the correction in the margin of Section 3.
Example of Auto Extension for existing employee who previously reverified employment authorization

What Do Employers Need to Know?

It is critical that those responsible for the Form I-9 process understand how, and when, to record TPS auto-extensions and Sections 2 and 3 updates.  This avoids exposure to fines and penalties associated with incorrectly completed I-9s.  We’ve written about an increase in enforcement activity in 2018, as the Administration plans to “reduce the demand for illegal employment and protect employment for the nation’s lawful workforce.”  Immigration and Customs Enforcement (ICE) continues to warn the public that the Agency’s strategy includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections.  Recent events, including early morning raids and a record breaking number of Notices of Inspection (NOIs) confirm that ICE means business. Be prepared.

More information on TPS may be found here.  USCIS’ fact sheet for automatic extensions may be found here.

*Not admitted to the practice of law.

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By: Randy Johnson and Walt Mullon

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

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

By: Leon Rodriguez

Seyfarth Synopsis: While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits.  This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.

Notwithstanding contrary state laws, marijuana continues to be deemed a Schedule I narcotic as defined at 21 U.S.C. § 812((b)(1), meaning it has been found to have “a high potential for abuse”, “no currently accepted medical use in treatment” or a lack of “accepted safety for use of the drug or other substance under medical supervision.” 21 U.S.C. § 812((b)(1)(A)-(C). 21 U.S.C. § 844 makes illegal under federal law simple possession of any Schedule I substance.  Current Attorney General Jeff Sessions has rescinded prior Obama-era Department of Justice guidance accommodating State laws on marijuana, particularly those allowing its possession and use for medical purposes.  As such, the Department of Justice has returned to an aggressive posture  on narcotics enforcement with respect to marijuana.

Continue Reading Marijuana Still Legally Risky For Non-Citizens (And Those Who Sponsor Them)

By: Angelo A. Paparelli

Seyfarth Synopsis: In passing AB 450, the Immigrant Worker Protection Act (IWPA), California lawmakers tried to make it more difficult for federal immigration enforcement agents from accessing nonpublic areas of employer worksites and private employee records.  The U.S. Justice Department filed a federal lawsuit against California attacking the IWPA as an unconstitutional interference with federal power over immigration.  DOJ persuaded the Court to issue a preliminary injunction last month against parts of the IWPA that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records).  Only one federal immigration agency routinely dispenses with the warrant or subpoena process.  The Fraud Detection and National Security Directorate (FDNS) – a unit of U.S. Citizenship and Immigration Services (USCIS) – regularly shows up unannounced at employer facilities in California and elsewhere.  Its agents present only a business card and demand the type of access prohibited under the IWPA.

Continue Reading California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ “FDNS” Enforcement Officers

By: Randy Johnson and Walt Mullon

Rubio Introduces Paid Family Leave Bill. Earlier today, Senator Marco Rubio (R-FL) unveiled new legislation aiming to provide paid family leave for new parents. The Economic Security for New Parents Act would allow parents to draw up to six months of early payments from their Social Security benefits. In return for receiving Social Security payments early, parents would defer their retirement benefits for three to six months, or the amount of time necessary to offset the cost of their parental benefits. The proposed legislation includes a 3-year sunset provision, meaning the program would expire if Congress didn’t renew it. The bill has already come under fire from Democrats claiming that the legislation does not go far enough to help working families while also placing additional strain on the Social Security system.

Continue Reading Seyfarth Shaw Policy Matters Newsletter – August 2, 2018

By: Randy Johnson and Walt Mullon

OFCCP Director to Step Down. Earlier today, reports surfaced that the Director of the Office of Federal Contract Compliance Programs (OFCCP), Ondray Harris, would be stepping down from the role at the end of this week. Harris lasted less than 8 months on the job after being appointed to the position last December. Craig Leen, the deputy director at OFCCP, will serve as director on an acting basis. Leen is expected to continue the agency’s recent “business-friendly” approach when analyzing the pay practices of federal contractors as well as the office’s increased focus on apprenticeships.

Continue Reading Seyfarth Shaw Policy Matters Newsletter – July 26, 2018

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.

In ICE’s press release, HSI reminded employers about its “three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.”

These events have been expected and actually follow prior comments by HSI officials that we previously reported, confirming that 2018 will be a year of increased immigration enforcement.

Continue Reading Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent

This blog was first published as a Seyfarth Shaw Management Alert on July 17, 2018

By Dawn M. Lurie and Alexander Madrak

Seyfarth Synopsis: Immigration and Customs Enforcement (ICE) increases worksite enforcement by more than 50%.  What should employers understand to prevent fines and minimize reputational risk?

Since the start of fiscal year 2018, ICE has increased worksite enforcement actions by over 50%.  Compared with fiscal year 2017, administrative arrests have increased nearly 400% while worksite investigations have risen from 1,716 to 3,510—with the last quarter of the fiscal year remaining for these numbers to increase.[1]  ICE appears to be making good on the remarks made by leadership to increase worksite enforcement “four to five times.”

Continue Reading ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow