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 August 25, the United States Citizenship and Immigration Service (“USCIS”) Deputy Director for Policy, Joseph Edlow, confirmed the agency no longer intends to furlough 13,000 employees at the end of the month. The message, circulating on social media and now posted on the USCIS website notes that while the doors of the agency will remain open through the end of FY 2020, there will be “aggressive spending” reductions impacting services across the board. USCIS is largely funded by filing fees, which support the agency’s operations, but USCIS claims the fees are not sufficient and accordingly announced a fee increase to take effect later this year.

Deputy Director Edlow warns that there will be operational impacts as a result of foregoing the planned furlough, that may include increased processing times for pending case queries, longer case processing times, and increased adjudication times for adjusting status and naturalizing. The message also notes that there is no guarantee that future furloughs can be avoided, leading him to call on Congress to take long-term action.
Continue Reading USCIS Furlough Averted, but Crisis Still Looms

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

By: Tieranny Cutler, Cheryl Gardner & Jason Burritt

Seyfarth Synopsis:  U.S. employers, applicants for immigration benefits, and other stakeholders should be aware of United States Citizenship and Immigration Services (USCIS) application fee increases and form changes scheduled to take effect on October 2, 2020.
Continue Reading USCIS to Implement Significant Fee Changes on October 2, 2020

By Angelo A. Paparelli

Much like patient vintners, federal immigration agencies often take time to offer up a grand cru.  One such agency, U.S. Citizenship and Immigration Services (USCIS), the Homeland Security component that administers the legal immigration system, just produced a long-awaited, delectable quaff. On May 5, it issued a policy memorandum that anointed as binding precedent an administrative appellate decision which at long last blesses modern practices in business transformations.
Continue Reading No Whine before its Time: USCIS Recognizes Immigration Successorship in Interest for Multinational Executives and Managers

On April 24, 2020, US Citizenship and Immigration Services (USCIS) announced a targeted reopening date of June 4, 2020 for offices that are currently closed in response to COVID-19.

What is impacted by this reopening announcement?

This impacts offices that provide in-person services, including field offices, asylum offices and application support centers (ASCs).  On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at these offices to help slow the spread of COVID-19.
Continue Reading USCIS to Reopen Offices on June 4th

In-Person Services Suspended Until At Least May 3

In response to Coronavirus Disease 2019 (COVID-19) developments, as of April 1, U.S. Citizenship and Immigration Services (USCIS) updated its office closures suspending routine in-person services until May 3rd.

What does this mean for cases in progress?

USCIS will reschedule appointments for applicants with permanent resident (green

Seyfarth Synopsis: E-Verify has offered guidance to employers to address concerns with expiring State Drivers’ Licenses and Identification Documents. The guidance, though, fails to address the situation where states have not granted temporary Driver’s Licenses or IDs extensions.

In response to queries sent by Seyfarth and other groups, E-Verify provided additional guidance addressing the COVID-19 National Emergency. We expect E-Verify to release a full  FAQ in the next week. Today’s guidance addresses the expiration of State Drivers’ Licenses and Identification Documents where employees are unable to renew these documents because of closures or limited services at Department of Motor Vehicles (DMVs).  In light of the National Emergency many states have extended the validity of these documents.
Continue Reading E-Verify COVID-19 Guidance on Expired Driver’s Licenses and State IDs

Seyfarth Synopsis: The outbreak of the Novel Coronavirus (COVID-19) has resulted in unprecedented travel restrictions, U.S. consular appointment cancellations, and changes to USCIS operations. To help navigate these challenges, Seyfarth is providing a brief summary of recent developments from the U.S. Department of Homeland Security, U.S. Department of State, and U.S. Department of Labor.

Updates from the U.S. Department of Homeland Security
Continue Reading COVID-19 Immigration Updates From the Agencies

Seyfarth Synopsis: On March 20, 2020 USCIS announced that the agency will temporarily suspend premium processing for all Form I-129 and I-140 petitions beginning on March 20, 2020 and until further notice due to the Coronavirus (COVID-19). 

Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing for all Form I-129 and I-140 petitions. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service. However, USCIS also announced that the agency would refund the $1,440 filing fee if the agency does not take action on a petition previously filed via premium processing within the 15-calendar-day period, thus leaving open the possibility that even those already in queue for adjudication may not receive premium treatment.

Please find below a list of frequently asked questions with our insights.

1. What is the effective date of the suspension?

The premium processing suspension is effective on March 20, 2020.

2. How long will the suspension last?

USCIS states that the suspension will last until further notice, and that the agency will notify the public with a confirmed date for resuming premium processing service.  In the past, premium processing suspensions have lasted up to six (6) months.

3. Does the suspension apply only to H-1Bs or other visa categories?

The suspension includes petitions filed for the following nonimmigrant categories:  E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket), O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.

The suspension also includes all types of I-140 petitions, including EB-1, EB-2 and EB-3.

4. How does this affect the H-1B cap lottery?

 USCIS indicates that it will still notify registrants selected in the lottery by March 31.  However, in the absence of premium processing, petitioners will likely not receive decisions on petitions filed on behalf of selected registrants until late May at the earliest, assuming a filing in early April.  In addition, companies that filed H-1B petitions with premium processing were able to easily communicate with USCIS representatives regarding case status updates and corrections to errors on the approval notice.  The suspension of premium processing will prevent companies from leveraging this benefit.

5. I am in F-1 status, my Optional Practical Training (OPT) will expire before October 1st, and I require H-1B cap gap to extend my work authorization through October 1st. What happens if I do not receive a decision on my H-1B cap case by October 1st?

If you will rely on H-1B cap gap and USCIS has not issued a decision on your H-1B petition as of October 1st, you may continue to remain in the U.S. until USCIS issues a decision.  However, you will not possess work authorization from October 1st until USCIS ultimately approves the H-1B petition.  If USCIS lifts the premium processing suspension early, which may occur prior to the six-month mark, your employer will have the option of submitting a premium processing request to accelerate processing of your H-1B petition.

6. Can a premium processing request be submitted for a pending I-129 or I-140 petition once the suspension is lifted?

Yes, once the suspension is lifted, a premium processing request may be submitted at any time.

7. I am currently in a nonimmigrant status (e.g. H-1B, L-1, TN, E-3) status and my status will expire this summer/fall. My employer will file an extension on my behalf.  How will the suspension of premium processing affect my work authorization and ability to travel internationally?

If you are in the U.S. in a valid nonimmigrant status and your company seeks to extend your status, you will remain eligible for an up to 240-day extension of your status beyond the date of your I-94 admission record.  Therefore, the premium processing suspension should not affect your continued work authorization.  However, if you have international travel plans after the expiration of your current status and/or your visa stamp is expired, you will need your new approval notice to apply for a visa stamp before returning to the U.S.  In this case, the premium processing suspension may require you to delay your travel plans or remain abroad until USCIS approves your petition and you secure a new visa stamp.

8. Are there any other issues that may come up?

Yes, in some states, you may have an issue renewing your driver’s license.  Some states will allow you to extend your license by presenting evidence of a timely filed extension while other states require evidence confirming that your nonimmigrant status has been approved.  You will need to check with your local motor vehicle department to explore this issue.


Continue Reading USCIS Suspends Premium Processing For I-129 and I-140 Petitions Beginning March 20, 2020