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

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

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

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

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

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

In Section 1, the employee should:

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

2. Initial and date the correction.

In Section 2, the employer should:

1. If the Federal register notice is used:

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

b. Write AUTO EXTENDED UNTIL September 27, 2019.

c. Initial and date the correction.

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

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

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

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

In Section 1, the employee should:

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

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

In Section 2, the employer should:

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

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

• Write in the document title.

• Enter the issuing authority.

• Provide the document number.

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

What’s Happens After 9/27/19?

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

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

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

What Else Do Employers Need to Know?

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