October 2020

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

As many of us started to think about weekend plans, this afternoon, USCIS promised us an interesting Monday with its latest announcement. Effective Monday, October 19, 2020, the premium processing fee associated with the expedited 15 day review of eligible petitions filed with USCIS will increase from $1,440 to $2,500.  H-2B and R-1 petitions however

By: Angelo A. Paparelli

The U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) last week affirmed the truth of the Upton Sinclair maxim on just how hard it is get someone “to understand something, when his [or her] salary depends on . . . not understanding it.”

In this case, federal immigration bureaucrats have had three decades to comprehend the delicate legislative balance of business needs and labor protections that produced the H-1B visa category for workers in specialty occupations.  For most of the ensuing years they seemed to appreciate that balance.  Yet, now, with the fate of their Executive Branch leader and paymaster up for a plebiscite in three weeks, their comprehension has (unsurprisingly) failed.  As this blog post will explain, because the needs and best interests of employers and workers (citizen and noncitizen alike) are intertwined, changing the rules of play late in the game without fair notice in order to favor one team over others will only hurt everyone.
Continue Reading Immigration Rush to Judgment – No Good Cause for New H-1B Rules in a Hurry