Immigration Compliance

By: Dawn M. Lurie

Seyfarth Synopsis: This announcement extends the flexibilities in rules relating to Form I-9 compliance that was initially granted last year. It also expands the scope of the “in-person” exemption benefit to certain employees, and offers flexibility for companies that are phasing back in employees, as doing so will no longer trigger the in-person requirement for all new hires.  While an improvement in the overall dialogue, the guidance leaves uncertainty regarding the end of I-9 virtual flexibility, and as such, employers should consider moving away from the virtual completion model while continuing to heavily document current practices.

With employers impatiently waiting, the U.S. Immigration and Customs Enforcement (ICE) announced (at 2:00 PM EST on March 31, 2021) another sixty (60) day extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities have been extended until May 31, 2021. The announcement was expected, as a portion of the American workforce is still very much remote, including much of the federal government in Washington, D.C.  However, the delay in the announcement was disappointing, causing unnecessary stress on already fragile H.R. departments.
Continue Reading ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021

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

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!

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

On September 15, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 60-day extension to the flexibilities in rules related to Form I-9 completion.  This extension relates to the relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation. Initially granted in March, ICE has issued several extensions, with the latest one now set to expire on November 19, 2020.  ICE previously granted 30-day extensions, but likely offered this longer time frame due to the ongoing COVID-19 pandemic.
Continue Reading ICE Stays the Course and Extends I-9 Flexibility

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