Late in the day, on May 26, Immigration and Customs Enforcement (ICE) announced a 90-day extension for remote Form I-9 inspection, allowing flexibilities to continue through August 31, 2021.

While the U.S. appears to have turned a corner in the fight against COVID-19, most companies have yet to formulate and implement back to work policies. Thank you to ICE and US Citizenship and Immigration Services (USCIS), for allowing these employers to head into the holiday weekend without having to worry about the fate of this anticipated extension.  And thank you for the 90 days, rather than the shorter 30 or 60-day extensions issued previously.

The Devil is in the Details

It would not be a exciting blog post, if we didn’t have something interesting to point out. The ICE announcement includes two confusing items:
Continue Reading Nothing “new” Other Than a 90 day Extension of Virtual I-9s

On February 17, 2021, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will dispose of any E-Verify records older than 10 years on May 14, 2021.  On May 19, the E-Verify Records Disposal Date was extended to June 4, 2021. This notice provides a reminder to employers that participation in E-Verify requires ongoing maintenance;

By Angelo A. Paparelli and Dawn Lurie

Globe-hoppers of the world, too long cabined and constrained by the pandemic, are exhilarated at the prospect of imminent foreign travel.  Many have received the vaccine and are poised to fly far away for business or pleasure.  The vaccinated among us, however, should not buy that airline ticket just yet – unless you know before you go how you will be treated at your foreign destination upon arrival, and upon departure.

Entry and Exit

Increasingly, as multiple variants of COVID-19 are identified, national governments worldwide have tightened entry protocols, and some have imposed exit restrictions.  France, for example, has announced new requirements when departing the country. See “[What is:] Can I leave France?”  – a Jeopardy-style question whose answer is: “You can only travel from France to a country outside the European space if you have pressing grounds for travel, or if you are travelling to your country of origin or residence.”
Continue Reading Hey, Immigration Lawyer: Get Me a Coronavirus Passport

By Tieranny Cutler and Dawn Lurie

Earlier this week, on January 26, 2021, the Student and Exchange Visitor Program (SEVP) rescinded its  intention, announced less than two weeks earlier, to develop an OPT Employment Compliance Unit. Immigration and Customs Enforcement’s (ICE) compliance-focused plan included close collaboration with other government agencies.

According to SEVP, following additional reviews of ICE’s current Optional Practical Training (OPT) compliance efforts, much of the work to be designated to the OPT Employment Compliance Unit is already being performed by SEVP and therefore they determined the additional unit is not needed.  While we are uncertain as to the internal discourse leading up to the quick rescission, it is likely that new administration team members reviewed the optics of the unit, the timing of the announcement (a week before the inauguration), and the potential impact on foreign students wanting to study in the U.S., before deciding to reconsider the rollout of the unit.  While humanitarian actions, including the focus on DACA and TPS have been the initial focus of the Biden administration, we are hopeful that they will turn to business and employer issues in an effort to keep the U.S. competitive globally. We expect an enforcement-minded, but practical approach; this early action should not be viewed as an indicator of anything otherwise.
Continue Reading Compliance Whiplash: ICE Establishes, and then Rescinds, Plan to Create OPT Employment Compliance Unit

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

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: 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