On May 14, 2020, Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance, initially granted on March 20. The ICE notice extends the ability for employers to conduct Form I-9 completions virtually/remotely, for an additional 30 days, or until June 18. The guidance provides an alternative – for a time – to “in-person” I-9 document review in light of precautions necessitated by COVID-19. With the rules relaxed, Section 2 verification or Section 3 reverification can be virtually completed via an online meeting (Skype, Zoom, FaceTime etc.), email, or fax, provided employers retain copies of the documents, and complete the Form I-9 within three business days of an employee starting work. In the original announcement, the Department of Homeland Security (DHS) stated that the virtual/remote process was not available to employers where employees were physically present at a work location. DHS also requires employers availing themselves of this discretion to review the employee’s identity and employment authorization documents in the employee’s presence, once normal operations resume, making the flexibility not so flexible and very time consuming in practice. The process of having to virtually check documentation, and then recheck in person within a tight time frame, has been unworkable for many employers.
Continue Reading ICE Announces Further Extension of Flexibility in Form I-9 Rules
New COVID-19 Q&As Related to Form I-9 and E-Verify
Late Friday afternoon, April 3, 2020, the Department of Homeland Security posted the following questions and answers in response to stakeholders queries on Form I-9 obligations in the midst of COVID-19. We applaud the U.S. Citizenship and Immigration Services (USCIS) for taking the lead on coordinating these responses and anticipate they will continue to be responsive to employer queries. The Q&A reiterates the original Immigration and Customs Enforcement (ICE) guidance, including confirming a hard deadline on timing- three days to complete the I-9 initially via a virtual/remote method and then three days to update with an in-person inspection once the business resumes normal operations. The Q&A also provides clarification on how to complete a Form I-9 with an expired driver’s license (sneak peek: use the actual expired date and write COVID-19 on the Form). Curiously the Q&A references electronic systems that don’t offer an additional information box field but suggests attaching a note to the I-9. The Q&A also confirms our suggestion, the person who views the documents in -person should enter their name and date in the Additional Information Box.
Continue Reading New COVID-19 Q&As Related to Form I-9 and E-Verify
Webinar: Virtual Coffee on Virtual I-9s
Virtual Coffee on Virtual I-9s: Immigration Compliance in the Wake of COVID-19
Monday, March 30, 2020 at 11am EDT
Hosted by Seyfarth Shaw and the US Chamber of Commerce 
The Department of Homeland Security (DHS) recently issued I-9 and E-Verify guidance in relation to the COVID-19 pandemic. The panel, which includes a former head of
E-Verify COVID-19 Guidance on Expired Driver’s Licenses and State IDs
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
USCIS Publishes EB-5 Modernization Rule: the Impact on the EB-5 Program
By Dawn Lurie, Mark Katzoff, Angelo A. Paparelli and Randy Johnson
Seyfarth Synopsis: On July 24, 2019, U.S. Citizenship and Immigration Services (USCIS), the immigration-benefits component of the Department of Homeland Security (DHS), published a final regulation on “EB-5 Immigrant Investor Program Modernization” (the “Rule”) to reform the EB-5 program in the Federal Register. Absent successful court challenges, or the passage by Congress of EB-5 legislation, the Rule will take effect on November 21, 2019. The Rule makes pronounced changes to the EB-5 program, including a significant increase in the investment threshold, conferral of exclusive authority to USCIS to designate Targeted Employment Areas (TEAs), and retention of priority dates for petitioners. The text of the Rule can be found here.
Continue Reading USCIS Publishes EB-5 Modernization Rule: the Impact on the EB-5 Program
Houses Passes Bill Lifting “Per-Country Caps”
By Randy Johnson and Dawn Lurie
Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar[1] with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.
The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States.[2] As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.” For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.
Continue Reading Houses Passes Bill Lifting “Per-Country Caps”
TPS Update: Last Minute Automatic Extensions For El Salvador and Three Other Countries
By: Dawn M. Lurie and Greg Morano*
On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.
E-Verify Thawed: The Government Reopens but Guidance is Messy
By: Dawn Lurie
Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th. The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS). Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown. USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it. We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.
With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics. Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.
Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown. If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames. For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems. Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues.
Continue Reading E-Verify Thawed: The Government Reopens but Guidance is Messy
Government Shut Down= E-Verify Shut Down
Over the past few days, I’ve received a large number of emails and calls from stressed out clients asking about the lack of access to E-Verify. Do not panic, employers will not be penalized as a result of the E-Verify operations shutdown.
E-Verify is the U.S. Citizenship and Immigration Service’s (USCIS) internet-based system that compares information from an employee’s Form I-9 to Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility.
Since E-Verify is not fee based, the current lapse in appropriated government funding affects the program. Employers will not be penalized for any delays in creating E-Verify cases. However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the E-Verify system. We expect USCIS to issue guidance—as they have during prior shutdowns— suspending the “three-day rule” which mandates creating a query within three day of starting work for pay, for any case affected cases. Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time.
Continue Reading Government Shut Down= E-Verify Shut Down
DHS Complies With Court Order, Preserves TPS for Four Countries
By: Dawn M. Lurie and Greg Morano*
Seyfarth Synopsis: On October 31, 2018, the Department of Homeland Security (“DHS”) announced that it would preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. To comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua and Sudan are now automatically extended through April 2, 2019. The TPS expiration dates for El Salvador and Haiti remain unchanged; September 9, 2019 for El Salvador and July 22, 2019 for Haiti.
TPS: What is the Status of the Program?
The Trump Administration attempted to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador. On October 3, 2018, a federal judge issued a preliminary injunction to prevent the termination of TPS and loss of work authorization for TPS beneficiaries. The court case is ongoing with DHS appealing the injunction order to a higher court.
If the court case is not fully resolved by the time a designated TPS is set to terminate, DHS will issue a Federal Register notice extending TPS documentation for nine months. This means that your employees will continue to work without interruption, but you will need to update Forms I-9 with the “Auto-Extensions”. For assistance with identifying automatically extended documents and executing the automatic extensions, see our prior post here.
If a higher court permits DHS to terminate TPS, the beneficiaries’ status will terminate either 120 days after the court order, or on the TPS termination date, whichever is later.
Seyfarth will continue to monitor the court case and provide updates.
Continue Reading DHS Complies With Court Order, Preserves TPS for Four Countries