Department of Homeland Security

By: Dawn Lurie, Matthew Parker, and Amber Olson

On July 22, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a reminder regarding the Department of Homeland Security’s (DHS) termination of the COVID-19 temporary policy allowing employers to accept expired List B documents for the Form I-9. As of May 1, 2022, employers must only

By: Dawn LurieLeon RodriguezAngelo Paparelli, and Zachary Blas Perez

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) has announced an important policy change that will benefit noncitizens holding Temporary Protected Status (TPS). The new policy permits USCIS to issue a new TPS travel authorization document, amending the previous mechanism required for TPS to receive foreign travel permission.  This policy change is significant because  noncitizens who enter on this new TPS travel authorization will now be considered as “inspected and admitted,” and accordingly may qualify for adjustment of status to lawful permanent resident (green card) status with an underlying employment-based or family-based immigrant visa petition.

On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum: Rescission of Matter of Z-R-Z-C– as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, announcing a new pathway for persons granted Temporary Protected Status (TPS) to travel outside the United States and be readmitted in a legal status that would allow them, in certain circumstances, to qualify for lawful permanent residency.

This memorandum, written in close consultation with the Department of Homeland Security’s Office of General Counsel (DHS OGC), is an attempt to better harmonize and administer decades of TPS protocols that have been at times inconsistent or infeasible for TPS holders as well as their dependents and other family members.  Just last year, the Supreme Court held, in Sanchez v. Mayorkas, that while a grant of TPS could not be considered an admission, it still constituted a “kind of lawful status” which USCIS has interpreted to make the shortcomings of Matter of Z-R-Z-C- warrant a rescission. (Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021)).

Created by Congress in 1990, TPS is available to eligible noncitizens present in the United States who are nationals of a foreign country that has been designated for temporary protection by the Secretary of Homeland Security.[1]  These countries currently include Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Syria, Somalia, Sudan, South Sudan, Ukraine, Venezuela, and Yemen. All designations of countries for TPS are discretionary, and before any such designation can occur, the DHS Secretary must make a formal finding that conditions in the particular country meet one or more alternative statutory criteria, namely, the presence of ongoing armed conflicts, environmental disasters, or “extraordinary and temporary conditions.”[2]

In general, a noncitizen physically present in the United States who meets the TPS statutory criteria may be granted temporary protection regardless of one’s underlying immigration status and regardless of the lawful or unlawful manner of entry into the country.[3] Broadly, TPS provides protection from removal by DHS, carries with it the inherent right of work authorization incident to TPS status, and allows for the submission to USCIS of an application for advance permission to travel abroad and be readmitted to the US. The USCIS July 1 Policy Memorandum (discussed below) addresses the new process envisioned by the agency for granting pre-departure consent to travel abroad and be readmitted, and explains potential eligibility to qualify for adjustment of status.

Continue Reading Opening the Door to Adjustment of Status with New TPS Travel Authorization Policy

By: Dawn M. Lurie

Seyfarth Synopsis: On April 25, ICE announced its 13th extension, this time for a six-month period (until October 31, 2022), of the I-9 compliance flexibility rules relating to Form I-9. There is no substantive change in this extension of the policy, allowing for the “in-person” exemption (of identity and work authorization document review), benefiting certain employees and offering flexibility for companies that are phasing back in employees. While we are confident that the government is considering a permanent virtual option, we continue to advise employers to work under the assumption that anyone initially verified using the virtual flexibility will be required to conduct an in-person update as employees return to the workplace, especially in cases where identity was not verified (i.e. those that used the fax/email option). 

Lucky #13 – Extension of the COVID I-9 Flexibility

In a thirteenth extension, ending on Halloween 2022, U.S. Immigration and Customs Enforcement (ICE) posted an unprecedented (it’s been a while since I said that word) six (6) month extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities are now extended until October 31, 2022.  The posting on the website is a bit confusing, as it just updates the December 2021 announcement, and includes an alert attached to the top of the page which indicates the new deadline.

ICE’s announcement affirms that employers who are taking COVID-19 related precautions and offering working in remote or hybrid environments, may continue inspecting I-9 documents virtually for newly hired employees as well as for reverification of work authorizations.  See our prior blog for the guidance and discussion on its forward-facing application, noting that ICE will evaluate a company’s situation “on a case-by-case basis” should a company have used virtual without the workforce being 100% remote from March 20, 2020 to March 31, 2021. Given the confusion and lack of guidance surrounding the directive, we remain optimistic that the government will show leniency for early misunderstandings and misapplications of the original policy.

Continue Reading Trick or Treat: I-9 Flexibilities Extended until October 31, 2022

By: Dawn M. Lurie and Zachary Blas Perez 

Seyfarth Synopsis: USCIS issued long-awaited guidance on how employers should treat certain E and L spouses’ work authorization based on their status when completing the Form I-9. USCIS also confirmed that it will mail updated notices to E and L spouses, who previously received an I-797

On August 18, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 30-day extension to the flexibilities in rules related to Form I-9 compliance. This relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation was initially granted in March and will now expire on September 19, 2020. 
Continue Reading The 2020 Summer Defrost Continues: ICE Extends I-9 Flexibility

The trend of recent months to curtail employment-based immigration, purportedly prompted by the coronavirus pandemic, continues unabated. On August 3, 2020 President Trump issued yet another executive order, this one entitled, “Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers” (“EO” or “Executive Order”). The new EO focuses on federal contractors (and their subcontractors) who employ H-1B and other nonimmigrant foreign workers. While the Executive Order itself imposes no new entry or other immigration restrictions, it instructs the Department of Labor (“DOL”), Department of Homeland Security (“DHS”), and other agencies and departments to take steps that undoubtedly will lay the groundwork to limit H-1B employment in the near future.
Continue Reading Another Day, Another Immigration Executive Order: Now Federal Contractors are Targeted

Posting early morning on July 20, but dated July 18, Immigration and Customs Enforcement (ICE) confirmed that employers have an additional 30-day extension to the flexibilities in rules related to Form I-9 compliance. This relaxation of the requirement to physically inspect all new hires’ identity and employment eligibility documentation was granted earlier this year, extended in May, and in June. The expiration date for these accommodations is now August 19, 2020.
Continue Reading Better Late Than Never: ICE Announces Another Extension to I-9 Compliance Flexibility

As of early Friday morning, July 17, there’s been no announcement by Immigration and Customs Enforcement (ICE) confirming whether it will continue the flexibility granted in the Form I-9 process, temporarily suspending the in-person physical inspection requirement.  ICE originally announced the relaxation on March 20, as employers were beginning to grapple with COVID-19 work-from-home and shelter-in-place orders. The initial guidance allowed companies to review “Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.” The relaxation of this requirement was extended through Sunday, July 19. Employers who have been using the virtual process, and will need to switch gears over the weekend, are getting very nervous.   
Continue Reading Still No Word From ICE On Virtual I-9s

The Trump administration, in response to a lawsuit filed by Harvard University and Massachusetts Institute of Technology, as well as several other suits, agreed to rescind its surprise Immigration and Customs Enforcement (ICE) directive. We previously blogged about ICE’s Student and Exchange Visitor Program (SEVP) July 6th announcement, prohibiting foreign students from studying in the United States where their colleges and universities had canceled in-person class instruction.
Continue Reading Trump Administration Defrosts ICE’s International Student Directive

This blog was updated on July 8th to reflect the Harvard and MIT lawsuit against the Department of Homeland Security and Immigration and Customs Enforcement. 

U.S. Immigration and Customs Enforcement (ICE) announced a policy change on July 6 that will substantially disrupt higher education for the fall semester. This major change in policy was issued without any opportunity for notice and comment by the public.

Despite the resurgent COVID-19 pandemic, ICE announced that it will no longer continue to allow 100% online studies programs for F-1 (academic) and M-1 (vocational) students. ICE has directed international students who presently participate in 100% online studies programs must either (1) transfer to an ICE-approved educational institution that allows hybrid (online and in-person) or fully on-campus, in-person courses, or (2) leave the U.S. or (3) remain in the U.S. without the underlying support of the school and suffer the possible initiation of removal (deportation) proceedings. ICE also indicated that it would publish a temporary or interim final regulation to a similar effect.
Continue Reading ICE Gives the Cold Shoulder to Foreign Students