Please review our recent update regarding the content of this blog post.

By Angelo A. Paparelli and Gabriel Mozes

In its waning hours, the Trump Administration announced comprehensive, burdensome changes to H-1B visa requirements for multiple firms across virtually all industries.  Fortunately, however, the changes are set to detonate on a long fuse, i.e., by July 14, 2021, unless the Biden Administration, Congress or the Courts sooner intervene.  The effects of these changes will be felt by every company that allows H-1B workers to perform services in specialty occupations at its worksite through a contractor, staffing company, or professional employer organization (PEO).

Presently, the obligation of compliance with H-1B requirements affecting required wages, working conditions, benefits and other labor protections under the Immigration and Nationality Act (INA) is imposed solely on the entity directly employing and paying the noncitizen worker and submitting an H-1B visa petition with U.S. Citizenship and Immigration Services (USCIS). Continue Reading Trump Administration Midnight H-1B Changes Purport to Impose New Burdens on Staffing Firms, Service Providers, and Their Corporate Customers

By: Angelo A. Paparelli  

Microscopic view of Coronavirus, a pathogen that attacks the respiratory tract. Analysis and test, experimentation. Sars. 3d render

With the COVID-19 pandemic still in full force, nonimmigrants traveling to the United States should expect no lifting of visa and entry bans as the Biden Administration comes to power – notwithstanding late-breaking changes announced by the outgoing Trump Administration.

In a surprise move, on January 18, 2021, President Trump issued a proclamation lifting COVID-19 visa and entry bans for certain nonimmigrant entrants arriving in the U.S. from the United Kingdom, the Republic of Ireland, Brazil and the Schengen Area countries of Europe.  This followed a  January 12, 2021 order by the Centers for Disease Control and Prevention (CDC) requiring proof of a negative COVID-19 viral test (taken three days before departure), or documentation of having recovered from COVID-19, for all international air passengers arriving in the United States.  Both changes were set to take effect on January 26, 2021.

Hopes for the lifting of COVID-19 visa and entry bans were soon dashed, however, by incoming White House Press Secretary Jen Psaki. She posted back-to-back tweets making it clear that there would be no relaxation of the bans for Europe and Brazil in the short term:

On the advice of our medical team, the Administration does not intend to lift these restrictions on 1/26. In fact, we plan to strengthen public health measures around international travel in order to further mitigate the spread of COVID-19.

With the pandemic worsening, and more contagious variants emerging around the world, this is not the time to be lifting restrictions on international travel.

Nonetheless, according to the Washington Post, incoming President Biden will rescind the existing Trump administration (non-COVID) travel ban affecting predominantly Muslim countries by executive order on his first day in office.

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For advice on immigration-related policy advocacy, litigation, or benefits compliance relating to these developments, Seyfarth invites employers to reach out to the lawyers in the firm’s Business Immigration Group.

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: Jake Campbell and Gabriel Mozes

Seyfarth Synopsis: Effective January 26, 2021, all international passengers (with minor exceptions) traveling by air must provide a negative COVID-19 viral test to enter the U.S. Alternatively, passengers may provide results proving recovery from COVID-19 with a doctor or physician authorizing international travel.

I. Negative COVID-19 Test Requirement

The U.S. Centers for Disease Control and Prevention (“CDC”) order requires that all internationally arriving U.S. air passengers (ages 2 and above), including U.S. citizens and permanent residents, provide a negative COVID-19 test that was administered within three days of travel. Continue Reading U.S. Requires Negative COVID-19 Tests for International Air Passengers

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: Tieranny L. CutlerMichelle Gergerian, and Jason Burritt

Seyfarth Synopsis:  Previously scheduled to expire on December 31, 2020, Proclamations 10052 and 10014 have been extended by President Trump until March 31, 2021. These visa bans will continue to restrict the issuance of certain immigrant and nonimmigrant visas, as well as travel to the United States by certain nonimmigrants, including those in H-1B, H-2B, J-1 and L-1 status.

The newly issued proclamation also provides the authority to the Secretary of Homeland Security and the Secretary of Labor to recommend any modifications as may be necessary within 15 days of December 31, 2020, and every 30 days thereafter while this proclamation is in effect. Continue Reading President Trump Extends Immigrant and Nonimmigrant Visa Ban

From Seyfarth’s December 7, 2020 Policy Matters Newsletter:

President-Elect Biden has indicated that he will seek to completely overhaul the current administration’s immigration policies, as well rescind the numerous Executive Orders issued by President Trump to enforce those policies. As we discussed in our Election 2020 Special Report, Biden supports expanding guest-worker programs, maintaining family preferences, giving a green card to everyone who earns a doctorate from an American university, increasing refugee admissions, and expanding employment-based visas. Biden, however, will have his work cut out for him, not only in the amount of X-marks he’ll have to scribe — according to the Migration Policy Institute, the Trump administration took over 400 executive actions on immigration between January 2017 and July 2020 — but also in flexing his powers as chief executive of the heavily-bureaucratic, 19,000-employee USCIS office, and a 20,000-employee ICE office. So it should come as no surprise that, as noted recently in the Washington Post, some shifts could take time. But some shifts could also be expedited: Seyfarth’s Angelo Paparelli and Stephen Yale-Loehr presented “four fresh ideas” in a recent blog post addressed to the incoming administration that it could take within the first few months of office — none requiring congressional action. We encourage the read. An additional speedbump in Trump’s immigration agenda was recently raised when a federal judge in California on Tuesday struck down the administration’s policies narrowing eligibility and raising minimum salaries for foreign employees on H-1B work visas. The court found that the administration failed to properly follow transparency procedures and that its claims that the changes were an emergency response to the pandemic’s economic fallout were unsubstantiated.

By Angelo A. Paparelli and Stephen Yale-Loehr

As a new administration takes office on January 20, and the tantalizing prospect of enlightened immigration reforms looms on the horizon, an intriguing question has surfaced on Twitter:

“Is there a progressive version of Stephen Miller? Someone who has (1) put in the time to understand how the immigration system works in great detail, (2) relentlessly committed to changing the system, and (3) is actually politically effective?” Austin Kocher, PhD

As grizzled and tireless proponents of a just immigration system, we humbly nominate ourselves for (1) and (2), and for (3) propose the American Immigration Lawyers Association (AILA). To be sure, our audacity notwithstanding, others are more worthy. Many experts have suggested ways to restore America’s historic stature as a welcoming nation of immigrants. Continue Reading Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration

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!