As of January 1, 2023, Tennessee will require all private employers with at least 35 employees to use E-Verify and maintain E-Verify case results.

E-Verify is a federal electronic database intended to aid employers in confirming that the documentation provided by new hires to establish lawful employment eligibility is in fact valid. Except for federal contractors, federal law does not mandate the use of E-Verify, but states have passed various mandates.

Tennessee began phasing in E-Verify in 2012 by passing legislation requiring that most Tennessee employers either use E-Verify or review and maintain certain identification documents. In 2017, the Tennessee Lawful Employment Act (TLEA) took effect, requiring all Tennessee employers to demonstrate they are hiring and maintaining a legal workforce. The TLEA requires private employers with at least 50 employees to use E-Verify.

Additionally, beginning January 1, 2023, the Tennessee law will have the following new provisions:

  • If an employer with fewer than 35 employees or an employer that does not have internet access wishes to use E-Verify, the office of employment verification assistance can enroll the employer in E-Verify or conduct the work authorization status checks.
  • Those who use E-Verify can be protected from state claims of wrongful or retaliatory discharge if the employee is not authorized to work in the United States, but the employer was not aware of that.
  • An employee does not have a state cause of action for discrimination based on national origin if an employer discovers an employee is not authorized to work in the United States through E-Verify and discharges the employee based on that.

For employers with fewer than 35 employees, E-Verify is not required. However, all employers should periodically audit their employment verification records to ensure they have been completed fully and properly. The Department of Labor and Workforce Development has been active in auditing E-Verify compliance for employers with at least 50 employees. Critically, the Tennessee definition of “employee” includes and counts employees under the same FEIN – this means that employers that may have fewer than 35 employees in the state of Tennessee but have more than 35 employees under the same FEIN are subject to E-Verify for Tennessee employees come January 1, 2023.

Jackson Lewis attorneys are available to answer your questions about state E-Verify requirements and to assist employers in setting up employment verification policies and conducting internal compliance audits.

In March 2022, USCIS published a final rule expanding its premium processing service to include additional immigration petition and application types. This announcement was welcome news to businesses and foreign nationals dealing with extensive delays in the processing of immigration benefits.

On May 24, 2022, USCIS announced that premium processing will begin as of June 1, 2022, with Forms I-140, Immigrant Petition for Alien Workers, in the first preference EB-1 multinational managers and executives category and the second preference EB-2 national interest waiver category. However, the service is limited only to petitions that were filed more than a year ago.

According to USCIS, the initial phase of premium processing expansion will be as follows:

  • As of June 1, 2022, USCIS will start to accept Form I-907, Requests for Premium Processing, for EB-1 multinational executive and manager petitions received by the USCIS on or before January 1, 2021.
  • As of July 1, 2022, USCIS will start to accept Form I-907 requests for EB-2 national interest waiver petitions received on or before June 1, 2021.
  • As of July 1, 2022, USCIS will start to accept Form I-907 requests for EB-1 multinational manager or executive petitions received on or before March 1, 2021.
  • USCIS will reject interfiled requests for premium processing for any of the above before the effective start dates.
  • USCIS will not accept new “initial” filings for any of the above with premium processing requests at this time.

As to the Form I-907 itself:

  • For the month of June 2022, USCIS will accept both the 09/30/20 and the 05/31/22 edition of the form.
  • Starting on July 1, 2022, the older version will be rejected for all premium processing requests.

The cost for this expanded premium processing benefit will remain $2,500, but, unlike the current 15-day premium processing timeframe, USCIS will guarantee adjudication within 45 days. Nevertheless, that is considerably better than the current 12-to-18-month delays for many applications.

USCIS indicated that additional premium processing benefits are being introduced to increase efficiency on a staggered basis, when revenues exist to hire additional staff and when it would not adversely affect other processing times. It is not clear yet when premium processing for Form I-539 requests for change of status or extension of stay in nonimmigrant dependent categories or when Form I-765 Requests for Employment Authorization will become available. However, USCIS previously noted that all the new benefits may not be available until 2025.

If you have questions about the upcoming new premium processing benefits, please reach out to your Jackson Lewis attorney.

The Temporary Protected Status (TPS) grant for Afghanistan will go into effect on May 20, 2022, with publication of the notice in the Federal Register with instructions on how to apply for TPS and for Employment Authorization.

In March 2022, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced that Afghanistan was added to the list of countries eligible for TPS. This would benefit approximately 75,000 individuals and provide temporary employment authorization. The 18-month initial grant and registration period became effective on March 20, 2022, and runs through November 20, 2023.

To be eligible, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and their continuous physical presence in the United States since March 20, 2022. Any nationals or residents of Afghanistan who are not currently residing in the United States or who arrived after March 15, 2022, will not be eligible for this TPS designation.

Eligible individuals must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period. They may also submit a request for an Employment Authorization Document using Form I-765, Application for Employment Authorization. The applications may be submitted together and may be submitted online.

Afghan nationals who arrived in the United States through the evacuation effort, Operation Allies Welcome, received humanitarian parole and work authorization for a period of two years. Those individuals may also be eligible for TPS.

DHS has also announced that F-1 students from Afghanistan experiencing severe economic hardship due to the situation in Afghanistan will be eligible for work authorization, increased permittable work hours, and a reduction in their course load as an accommodation.

Jackson Lewis attorneys are available to assist with TPS applications and advise on employment authorization verification requirements for Afghan nationals and residents.

Federal courts could not review the U.S. Attorney General’s decisions denying discretionary relief from removal – even in a case where the alien contends that the decision was based on a factual error, the U.S. Supreme Court has held, 5-4, affirming the opinion of the U.S. Court of Appeals for the Eleventh Circuit. Patel v. Garland, No. 20-979 (May 16, 2022).

The decision was authored by Justice Amy Coney Barrett. She was joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanagh, and Clarence Thomas. The Supreme Court had granted review to resolve a split in the circuits.

In this case, Pankajkumat Patel and his wife sought discretionary relief from removal and deportation in the form of two different adjustment of status applications. They had entered the United States illegally in the 1990s. They have three sons – one a U.S. citizen and two who are legal permanent residents. In 2007, the Patels tried to repair their situation by seeking discretionary relief, but their adjustment applications were denied because Patel had claimed to be U.S. citizen by checking the wrong box on a driver’s license application. He argued that this was a simple error on his part and that he had no intention or any reason to claim to be a U.S. citizen to obtain a driver’s license because, in Georgia (where he lived), he was eligible for a driver’s license based upon the fact that he had a pending adjustment application and valid work authorization.

The U.S. government supported Patel and argued that factual findings were not discretionary and, therefore, could be reviewed. Since the government did not support the Eleventh Circuit’s ruling, the Supreme Court appointed an amicus to argue on its behalf, Taylor A.R. Meehan, a former 11th Circuit and Supreme Court law clerk. Meehan is one of the few women who have ever selected for this role. Meehan argued that any authoritative decisions encompassing any and all decisions related to the granting or denying of discretionary relief are unreviewable.

Justice Neil Gorsuch joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan offered a strong dissent:

It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes. Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case. An immigrant to this country applied for legal residency. The government rejected his application. Allegedly, the government did so based on a glaring factual error. In cir­cumstances like that, our law has long permitted individu­als to petition a court to consider the question and correct any mistake.

Not anymore. Today, the Court holds that a federal bu­reaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely as­sertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the Exec­utive Branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of hav­ing to correct even its most obvious errors.

Due in part to motor voter laws, other immigrants since 2017 have made the mistake that Patel made. The harshness of this ruling further emphasizes how one small mistake can ruin an immigrant’s chance at immigrating the United States.

 

 

 

The Department of State (DOS) has reinstituted talks with Cuban representatives about how to support family reunification and safe, orderly migration from Cuba to the United States.

Talks of this nature were instituted in 1984 and continued biannually from 1994 until 2018 when the talks were paused by the Trump Administration.

The Biden Administration is considering a resumption of the bilateral accords that formed the basis of these talks. Under the accords, the United States agreed to issue 20,000 immigrant visas to Cubans annually if the Cuban government would accept deportation flights (which Cuba has not been doing). Reinstituting these accords also could be part of the administration’s effort to limit problems at the southern border. Cubans are the second largest group of migrants there, second only to Mexicans. In March 2022, 32,000 Cubans were taken into custody at the border. Since November 2021, 65,000 have reached the southern border. Attempted migration surged at that time when Nicaragua eliminated visa requirements for Cuban nationals, allowing Cubans to travel overland to the United States. Previously, most of the attempted Cuban migration was across the Florida straits — a treacherous journey that Secretary of Homeland Security Alejandro Mayorkas would like to see halted.

A growing number of Cubans reportedly are receiving humanitarian parole after being released from U.S. Customs and Border Protection custody. While humanitarian parole generally does not lead to permanent residence, it can for Cubans pursuant to the Cuban Adjustment Act of 1966 (CAA). Under the CAA, natives or citizens of Cuba are eligible to adjust status if they were inspected and admitted or paroled into the United States after January 1, 1959, have been physically present in the United States for at least one year, and otherwise are eligible for admission.

Consular services were basically suspended in Havana in 2017 due to reports of Havana Syndrome. Visa applicants have had to apply in Guyana, some 2,000 miles from Cuba. As of May 2022, the U.S. Embassy in Havana may begin to process immigrant visas “on a limited basis” with a skeleton crew.

There are further updates from the CDC for all air travelers.

Now, most travelers will have to show  a negative COVID-19 test or documentation of recovery from COVID-19 and contact information to board an airplane for the United States. As before, U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and those entering the United States on immigrant visas do not need to be fully vaccinated. Other non-U.S. citizens, including those entering on temporary visas (with limited exceptions), must show proof that they are fully vaccinated. A booster dose is not required to meet this requirement.

In addition, while no longer required, CDC continues to recommend that people wear masks in indoor public transportation settings.

What to Do After Arrival

Non-U.S. citizens, including those entering on temporary visas who are not fully vaccinated, but allowed to travel to the United States by air based on an exception, may be required to attest to some or all the following:

  • Get tested within 3-5 days after arrival absent documentation of having recovered from COVID-19 in the past 90 days;
  • Stay at home or in your hotel room and self-quarantine for a full 7 days, even if test is negative, absent documentation of having recovered from COVID-19 in the past 90 days;
  • Isolate if test result is positive or symptoms develop; and
  • Those intending to stay in the United States for 60 days or longer should become fully vaccinated within 60 days of arrival, or as soon as medically appropriate.
  • Follow all state, tribal, local, and territorial recommendations or requirements.

U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and those entering the United States on immigrant visas as well as non-U.S. citizens, including those entering on temporary visas who are fully vaccinated but not up to date with vaccines, i.e., not up to date on boosters, CDC recommends:

  • Stay home and self-quarantine for a full 5 days after travel absent documentation of having recovered from COVID-19 in the past 90 days;
  • Get a viral test 3-5 days after arrival absent documentation of having recovered from COVID-19 in the past 90 days;
  • Self-monitor for symptoms and isolate and get tested if symptoms develop; and
  • Follow all state, tribal, local, and territorial recommendations or requirements.

Individuals who recently recovered from COVID-19 (within the past 90 days), regardless of vaccination status:

  • No need to test within 3-5 days after arrival;
  • No need to self-quarantine after arrival;
  • If symptoms develop after arrival, isolate immediately and get tested;
  • Continue to isolate until test results are available; and
  • Wear a well-fitting mask around others.

All other travelers:

  • Get a viral test 3-5 days after arrival;
  • Self-monitor for symptoms and isolate and get tested if symptoms develop; and
  • Follow all state, tribal, local, and territorial recommendation or requirements.

COVID-19 travel requirements and recommendations can change at any time due to changing circumstances. It is important to check the CDC websites for guidance prior to travel.

As of May 4, 2022, the Department of Homeland Security (DHS) is increasing the automatic extension of work authorization from 180 days to 540 days for certain individuals.

Currently, certain individuals with expiring employment authorization documents (EADs) can continue working for an additional 180 days as long as they have timely submitted for a replacement EAD and have been issued a receipt notice, I-797C, in the same employment eligibility category. Because actual processing times for replacement EADs currently is up to 11.6 months, a significant number of employees are not in receipt of their replacement EADs within the 180-day period and cannot legally continue to work. This DHS rule change, effective May 4, will extend the 180-day period to 540 days from the card expiration date.

Applicants who are already eligible for 180-day extensions also qualify for the new 540-day extension beyond the expiration date of their EADs. The categories include those with pending Adjustment of Status applications, spouses of E, L, and H visa holders (with unexpired Form I-94, Arrival/Departure Records), applicants for asylum, and individuals with Temporary Protected Status who may also be eligible for certain per-country automatic extensions.

To be eligible, applicants must continue to also:

  • Have currently pending EAD renewal applications that were timely filed (even if the individual’s 180-day extension has already expired); or
  • Timely file an EAD renewal application between May 4, 2022, and October 26, 2023.

For those already in an authorization gap, employment authorization will resume on May 4, 2022, and continue up to 540 days from the date the EAD expired. Unfortunately, the new rule does not cure any unauthorized employment that may have accrued prior to May 4, 2022.

After May 4, 2022, to complete a Form I-9 Employment Authorization Verification for someone entitled to the new 540-day extension, the individual must present the receipt notice showing a timely filed EAD renewal in the same category as the expired EAD. DHS will be updating its webpage with information about the 540-day extension. It will recommend that a copy of the webpage be attached to the I-9. If an individual has been terminated because their 180-day extension expired, the employer may do a reverification or a new Form I-9.

In the new rule, DHS outlines all the reasons for the backlogs, including fiscal problems, staffing problems, increases in filings, and the COVID-19 pandemic. DHS says it hopes that, by the time the rule’s provisions expire, processing times will have returned to more normal levels – the agency’s prior 90-day processing goal.

Jackson Lewis attorneys are available to assist you in determining whether the new 540-day rule applies and how to handle necessary Form I-9 Employment Authorization reverifications.

On April 14, 2022, the Centers for Disease Control (CDC) updated its post-arrival recommendations.

Almost everyone (unless specifically exempted) who is at least 2 years old must have a negative COVID-19 test (tests include an antigen test or a nucleic acid amplification test) to board an airplane for the United States. Travelers fall into two broad categories: 1) U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants, and 2) non-U.S. citizen and non-U.S. immigrant entering on temporary visas.

After Arrival in United States

After arrival, CDC recommends all travelers, including U.S. citizens, legal permanent residents, nonimmigrant foreign nationals, and any individuals who are fully vaccinated but are not up to date on vaccinations (i.e., not boosted) should:

  • Get a COVID-19 viral test 3-5 days after travel.
  • Self-monitor and quarantine, then isolate if the COVID-19 test is positive or if symptoms develop.
  • If the traveler recovered from a documented COVID-19 infection within the past 90 days (regardless of vaccination status), then COVID-19 viral testing or self-quarantine is not required unless symptoms develop.

Vaccination Requirement

Those in group 1 (U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants) need not show proof of being fully vaccinated against COVID-19 before traveling to the United States by air, but those in group 2 (non-U.S. citizen and non-U.S. immigrant entering on temporary visas) do. However, the following members in group 2 can be excepted from the fully vaccinated requirement:

  • Diplomats
  • Children under 18 years of age
  • Individuals with documented medical contraindications for vaccination
  • Participants in certain COVID-19 vaccine trials
  • Documented humanitarian or emergency exceptions
  • Individuals with valid nonimmigrant visas (other than B visas) who are citizens of countries with limited COVID-19 vaccine availability
  • Member of the U.S. Armed Forces and their spouses and children under 18
  • Crew members with C or D visas
  • Individuals whose entry into the United States is in the national interest

Non-citizens who have been excepted from the fully vaccinated requirement may have to attest to some or all the following upon arrival:

  • Take a viral test 3-5 days after arrival, unless within 90 days of recovering from COVID-19.
  • Stay home or in a hotel room and self-quarantine for 5 days even if the viral test is negative, unless within 90 days of recovering from COVID-19.
  • Isolate if the viral test is positive or if symptoms develop during the 5 days.
  • If planning to remain in the United State for at least 60 days, the individual must become fully vaccinated within 60 days of arrival unless vaccination is not medically appropriate.

To receive an exception, an individual must provide an attestation to show their eligibility for such an exception.

Jackson Lewis attorneys are available to assist you with any questions regarding travel eligibility.

I-9 flexibility is extended until October 31, 2022, due to continuing COVID-19 precautions.

The Department of Homeland Security (DHS) guidance remains the same and preparing for the possible end of the flexibility is still advised. Indeed, DHS stated, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

Jackson Lewis attorneys are available to assist you with any questions regarding I-9 flexibility, E-Verify, employment authorization verification policies and procedures, and establishing processes to prepare for the possible end of flexibility.

Starting April 25, 2022, the “Uniting for Ukraine” program for Ukrainians seeking to enter the United States will allow Ukrainians who are sponsored by family members or non-governmental agencies to come to the United States and apply for a two-year humanitarian parole.

While humanitarian parole does not offer a direct pathway to long-term residence in the United States, it provides temporary residence and allows beneficiaries to seek other immigration options. Due to this program, which is intended as a streamlined, fast track option for those with sponsors, the United States wants to stem the tide of Ukrainians who are arriving at the Mexican border. While it seems that it may be possible to apply for Uniting at the Mexican border, the process will be more difficult, and the United States may no longer waive Title 42 for Ukrainians. Title 42 allows the expulsion of migrants who arrive at the border without permitting them to apply for asylum.

To date, while some Ukrainians have made it to the United States, the Uniting program is meant to help the United States meet its announced goals of opening its doors for up to 100,000 Ukrainian citizens and others seeking to leave Ukraine. Other legal pathways include Temporary Protected Status (TPS), immigrant and nonimmigrant visa routes, the U.S. Refugee Admissions Program, “regular” humanitarian parole, and asylum.

TPS is helpful for Ukrainians already in the United States continuously since April 11, 2022, but not for those currently attempting to flee, unless the DHS moves the eligibility date further forward.

About two hundred immigrant visas and 1,500 temporary nonimmigrant visas were issued to Ukrainians in February 2022. Visitor visas, which require an intent for only a temporary stay in the United States and a showing of definitive plans to return to the home country, are generally not available for Ukrainians due to their uncertain near-term future.

The U.S. Refugee Admissions Program (unlike humanitarian parole) can lead to U.S. citizenship, but the path is very long. In January and February 2022, 514 Ukrainians made it to the United States through the refugee route. Only 12 made it in March 2022, as flight cancellations related to the conflict limited the number of those who were able to leave.

The normal humanitarian parole program, which will still be available for Ukrainians who do not have sponsors, can be granted on urgent humanitarian grounds. Yet, the high bar for meeting these grounds can make it unavailable as an alternative to the regular visa issuing or the refugee application processes. So far, 350 Ukrainians have been granted “regular” humanitarian parole, including 28 children who were granted parole for medical care purposes.

Asylum is for Ukrainians who have been persecuted or demonstrate reasonable fear of persecution on account of their nationality, race, religion, membership in a particular social group, or political opinion. One of the eligibility criteria for asylum is being in the United States. Thousands of Ukrainians have entered the United States through the Mexican border. Some have had U.S. visas, but most have applied for asylum. Reportedly, there are 2,400 Ukrainians waiting for asylum processing in Tijuana, Mexico. With the start of the Uniting program and the rescission of the Title 42 exception for Ukrainians, those still waiting in Tijuana, if sponsored, may have to try to apply for the Uniting program from the border.

Jackson Lewis attorneys will provide updates as they become available.