President Joe Biden has extended Deferral of Enforced Departure (DED) and employment authorization for Liberians until June 30, 2024. Accordingly, the Department of Homeland Security (DHS) will publish instructions regarding the implementation in the Federal Register.

Because of armed conflict, civil strife and Ebola, Liberians were granted Temporary Protected Status (TPS) in 1991. By 2007, the grant of TPS ended, but President George W. Bush instead granted DED status to Liberians in the United States. That status continued to be extended by successive administrations. In December 2019, Congress enacted the Liberian Refugee Immigration Fairness (LRIF) provisions of the National Defense Authorization Act. LRIF provided Liberians the ability to apply for adjustment of status and further extended DED so that Liberians could continue to obtain employment authorization during the transition period. Because of delays associated with the LRIF program, DED was extended through June 30, 2022.

In order to protect more Liberians who have not received green cards, have not been able to return to Liberia since 2017, and have since established family and community ties to the United States, President Biden decided to continue Liberian DED and employment authorization through June 30, 2024, for any Liberians who:

  • Are present in the United States and have been under a grant of DED since June 30, 2022; or
  • Have been continuously physically present in the United States since May 20, 2017.

These individuals must also meet general admissibility requirements and may not have voluntarily returned to Liberia or their country of last habitual residence for more than 180 days in aggregate.

Reportedly, approximately 4,000 Liberians hold DED status and there are at least as many U.S.-citizen children of Liberian DED holders.

Those interested in applying for DED and employment authorization extensions should await further instructions from DHS.

Automatic Employment Authorization Document (EAD) extensions are confusing. Before you can figure out whether one of the various extensions applies, you need to identify the EAD category.

Certain EAD applicants are entitled to 180-day automatic extensions if they have pending, timely filed EAD renewal applications. The code on the face of the expired EAD indicates eligibility.

Those who are eligible include:

  • Refugees (A03)
  • Asylees (A05)
  • Parent or dependent child of an international organization employee granted permanent residence (A07)
  • Citizens of Micronesia, the Marshall Islands or Palau admitted as nonimmigrants (A08)
  • An individual granted withholding or deportation or removal (A10)
  • Certain asylum applicants (C08)
  • Adjustment of status applicants (C09)
  • NACARA applicants for suspension of deportation or cancellation of removal (C10)
  • Registry applicants (C16)
  • Special agricultural workers (C20)
  • Legalization applicants under INA 245A (C22)
  • LIFE applicants (C24)
  • VAWA beneficiaries and children (C31)
  • Temporary Protected Status (TPS) beneficiaries (A12 and C19)

Applicants who are entitled to 180-day automatic extensions are now entitled to 540-day automatic extensions if:

  • They have pending timely filed EAD renewal (even if their 180-day extension has already expired); or
  • They timely file an EAD renewal application between May 4, 2022, and October 26, 2023; and
  • They are requesting a renewal in the same category as the expired EAD (except for TPS beneficiaries who may mix and match A12 and C19 codes).

For filings after October 26, 2023, the 540-day renewal will sunset leaving only the 180-day extension.

Certain H (C26), L (A18), or E (A17) spouses are also entitled to 180- or 540-day automatic renewals, but the automatic extensions cannot exceed their Form I-94 end dates. Moreover, L or E spouses with proper annotations on their I-94s have employment authorization incident to status, so they may not need an EAD.

To ease the 540-day calculation, USCIS has created a new tool, an EAD Automatic Extension Calculator. The calculator helps to determine the 540-day end date, once you know if the 540-day automatic renewal applies.

If you have questions about calculating EAD extensions or preparing Form I-9 Employment Verification Authorizations in these situations, Jackson Lewis attorneys are available to assist you.

The Department of Homeland Security (DHS) is considering making a change which would permanently allow the flexibility it has extended over employers’ verification of employees’ identity and employment eligibility since March 2020.

Historically, Form I-9 has required employers to physically inspect original documentation presented by employees in a face-to-face interaction. Over the years, workforces have become increasingly remote, and the COVID-19 pandemic has sped up the trend. In reaction to the COVID-19 emergency, the government temporarily lifted the in-person I-9 document inspection requirement, allowing a virtual I-9 process. Employers are exempted from the in-person document verification requirements associated with Form I-9 Employment Eligibility Verification until October 2022.

The virtual I-9 process proved to be popular with many employers and employees, who provided hundreds of supporting comments in response to a Request for Information last fall. Likely in reaction to this, in its Fall 2021 Regulatory Agenda, DHS included the Optional Alternative to the Physical Examination Associated with Employment Eligibility Verification rule. It stated in the summary:

DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers. Future exercises of such authority may reduce burdens on employers and employees while maintaining the integrity of the employment verification process.

Employers have long-observed that conducting Form I-9 verification virtually allows companies to centralize their I-9 processes so that experienced staff can conduct all the reviews.   Employers also believe that a virtual process eliminates barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification.

Many questions remain about the possible new rule:

  • Under what circumstances will flexibility be allowed?
  • Will this apply to all employers or only to some based upon size, industry, or past compliance records?
  • Will there be a quid pro quo such as requiring the use of E-Verify or enrollment in the IMAGE program?
  • Will a fee or a fee structure be involved?
  • Will staff training be required?
  • Will there be more audits and investigations?

The government has not set a timeline to finalize a new rule on a virtual I-9 process. If you have any questions about Form I-9 or E-Verify processes or compliance, please reach out to your Jackson Lewis attorney. We will continue to monitor this situation and provide updates as they become available.

Employers doing PERM cases need to be on the lookout for local laws that require salary transparency in recruitment ads. Pursuant to the Department of Labor’s PERM regulations, recruitment advertisements must include only the name of the employer, the job location, directions on how to apply for the position, and a description of the position specific enough to apprise U.S. workers of the opportunity – not salary information. Local laws may impose additional requirements.

The new salary transparency in job advertisements law in New York City, effective November 1, 2022, and enacted as part of the New York City Human Rights Laws, will require most job postings for positions that can or will be performed in whole or in part in New York City to include a good faith salary range. In addition:

  • The new law applies to all employers with at least four employees – with at least one employee working in New York City. The definition of salary does not include other forms of compensation or benefits, such as commissions or bonuses, stock options, or employer provided insurance.
  • The position must be one that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home, and whether part-time or full-time. If the position is fully remote and can be performed from “anywhere,” then the position would be covered because it could be performed in New York City.
  • Both the minimum and maximum salary must be included – if there is no flexibility in the salary, the minimum and maximum salary would be the same. In the PERM situation, the salary on the recruitment ads would match the salary on the PERM Notice of Filing (NOF). In Special Handling Cases, under DOL regulations, NOFs do not require a salary range. If the college or university and the position meet the new law eligibility requirements, however, the NOF and the recruitment advertisements should include the salary range.
  • All types of advertisements are covered: postings on internal bulletin boards, internet ads, printed flyers distributed at job fairs, and newspaper advertisements. This would appear to include all types of PERM ads.

The New York City Commission on Human Rights will enforce the law based upon tips and may initiate its own investigations. Individuals also may file complaints in civil court against their current employers. Violators may have to pay monetary damages and civil penalties. They also may be called upon to engage in affirmative relief, such as amending advertisements, updating policies, and conducting training. The purpose of pay transparency laws is to promote pay equity. Colorado has a similar Transparency in Pay Act, instituted in 2021, covering employers that have at least one employee in Colorado. Washington also has a similar law that will become effective on January 1, 2023. While New York City, Colorado, and Washington are the only localities with laws that do or will require salary rates in all job postings, other states have pay transparency laws that require salary disclosure at certain points in the hiring process and, at some point, may require salary ranges in advertisements. Recently, New York State passed Senate Bill S9427A, which would amend Section 194 of the New York Labor Law to require the disclosure of compensation ranges in job, promotion, and transfer advertisement state-wide. The bill would require all employers with at least four employees to include the compensation, or a range of compensation, for any job advertisement that “can or will be” performed, at least in part, in New York. The bill currently defines a “range of compensation” as the “ minimum and maximum annual salary or hourly range of compensation” for a particular job. The pay transparency bill will go into effect 270 days after being signed into law by Governor Kathy Hochul.

If you have questions about PERM and the New York City, Colorado, New York, or Washington salary transparency laws, please reach out to your Jackson Lewis attorney.

 

All visitors, except U.S. citizens, returning resident aliens, immigrant visa holders, and most Canadian citizens, must receive a Form I-94, Arrival/Departure record at the port of entry. Because travel is picking up, Customs and Border Protection (CBP) is encouraging travelers to fill out an I-94 application online in advance to reduce wait times and speed their arrival.

CBP has other travel tips for those arriving at the northern land border:

Jackson Lewis attorneys are available to assist with questions about entry requirements at the borders.

As of 12:01 a.m. on Sunday, June 12, 2022, passengers flying to the United States from abroad will no longer need to present a negative COVID-19 test to board (or prove that they have recovered from COVID-19 within the prior 90 days). Non-U.S. citizens, including those entering on temporary visas (with limited exceptions), must still show proof that they are fully vaccinated.

This relaxation of the test requirement was announced by the White House based on a CDC recommendation.  The CDC determined that the science and data made it clear that the requirement was no longer needed, at least in part because of the great progress that the United States has made in terms of vaccines and treatments that prevent serious illness and deaths.  The CDC, however, will review the data within 90 days and reinstate the requirement if circumstances change.

The negative COVID-test rule for international travel back to the United States was first put in place in January 2021 by the Trump Administration.  At that time, the test had to be performed within three days of boarding.  By December 2021, the Biden Administration changed the rule to require the test within one day of departure. For some time, the rule has been opposed by airlines and the travel industry because of its financial impact.  Travel plans were being postponed because individuals feared being stuck abroad if they or any member of their party tested positive.  Moreover, some individuals who tested positive (or feared they would) were circumventing the rule by entering the United States at a land or sea port of entry where negative COVID-19 tests were not required.

In April 2021, a federal court struck down the COVID-19 mask mandate for planes, trains and buses, although the CDC still recommends masking, and the administration is appealing that decision.

Department of Homeland Security (DHS) has issued a Federal Register notice with instructions on how to apply for Temporary Protected Status (TPS) for Cameroon. The designation runs for 18 months, until December 7, 2023, and the government estimates that approximately 11,700 individuals may be eligible.

Cameroon has been designated for TPS due to extreme violence between government forces and armed separatists, deadly attacks by terrorist groups and vigilante self-defense groups, and human rights violations leading to a humanitarian crisis and economic decline.

Cameroonians who have continuously resided in the United States since April 14, 2022, may apply for TPS. Individuals arriving after that date will not be eligible. Those who meet the eligibility requirements, including demonstrating continuous physical presence in the United States since June 7, 2022, will be able to register for TPS and apply for employment and travel authorization during the registration period, which runs from June 7, 2022, until December 7, 2023.

Cameroonian students who are in the United States in F-1 status and who are suffering from severe economic hardship may be able to request work authorization, reduce their course loads, and work more hours.

Jackson Lewis attorneys are available to assist in making applications, determining work authorization, and advising on the employment verification process for employees with TPS.

In response to high skilled labor shortages, the UK has announced a program aimed at attracting the “best and brightest” from around the world.

Under the new scheme, alumni of top non-UK universities who have graduated within the past five years can apply for the streamlined High Potential Individual (HPI) visa and have their cases adjudicated within a few weeks.

Other key features include:

  • The HPI visa is good for two years, three if the individual has a doctoral degree.
  • There is no extension of the HPI visa, but beneficiaries will be eligible for other, more permanent statuses in the UK.
  • The beneficiary’s partner and children can join the beneficiary in the UK.
  • There is no job offer requirement; individuals with the HPI visa can work in most jobs, look for work, be self-employed, or even volunteer.

The current list of about 40 eligible universities includes 20 in the United States:

  • California Institute of Technology
  • Columbia University
  • Cornell University
  • Duke University
  • Harvard University
  • Johns Hopkins University
  • Massachusetts Institute of Technology
  • New York University
  • Northwestern University
  • Princeton University
  • Stanford University
  • University of California at Berkeley, Los Angeles and San Diego
  • University of Chicago
  • University of Michigan at Ann Arbor
  • University of Pennsylvania
  • University of Texas at Austin
  • University of Washington
  • Yale University

The UK is one of many countries that are expected to be increasingly hard hit by a dearth of high skilled workers. The UK has been having trouble attracting talent from the EU due to new immigration issues caused by Brexit. It is trying a new HPI visa option that might make things worse in the United States. Countries such as Canada have established pathways to attract high skilled workers from abroad. In the United States, there is also a need to attract and retain high skilled workers. The U.S. House of Representatives recently passed legislation that would help companies in the United States compete for top talent. It is unclear whether the Senate will pass similar legislation. Meanwhile, companies try to offer more benefits to attract top talent, while continuing to await much-needed government action.

Employers searching for skilled workers should not overlook the powerful but somewhat obscure immigration tool, the E visa. While use of this visa is dependent on certain treaty laws, qualifying organizations may employ the E visa to hire executives, managers or essential employees which can provide needed options for companies struggling to replace employees in the post-pandemic economic marketplace. On this episode of We Get Work, we share the many benefits of the E visa, as well as who and how to qualify. Our hosts are James Stone, a principal in the Cleveland office of Jackson Lewis, and Kimberly Bennett, an associate in the DC region office.

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.