The Department of Justice (DOJ) has issued a new Employer Fact Sheet alerting employers about avoiding unlawful discrimination and other Form I-9 violations when using commercial or proprietary programs to electronically complete I-9s and participate in E-Verify. It is a comprehensive, though not exhaustive, explanation.

DOJ states:

  • Ensure the software program allows employers and employees to follow I-9 requirements:
    • Are all the forms and instructions current?
    • Can fields be left blank where permitted?
    • Does the system allow employees to enter only one name and enter “unknown” in the other?
    • Does the employer certification in Section 2 include the title and first and last name of the person who examined the documents as well as the employer’s business name and physical address?
  • Ensure the system fulfills all requirements for Form I-9 accountability and reliability for completing, modifying, and retaining Forms I-9:
    • Can employees, employers, and preparers/translators make and record corrections to Section 1 and Section 2?
    • Does the program uniquely identify each person who accesses, corrects, or changes a Form I-9?
  • For those who use a software program to complete E-Verify, ensure all E-Verify requirements are followed:
    • Does the system display all E-Verify notices?
    • Does the system use current versions of E-Verify Tentative Nonconfirmation notices?
    • Does the system allow the employer to delay creating E-Verify cases when the rules allow?

According to the DOJ, employers should not pre-populate employee information or request different information from what Form I-9 requires, among other things. DOJ’s Employer Fact Sheet provides an important reminder to employers to be cautious about software programs that claim government endorsement or do not provide technical assistance and support.

Evaluating commercially available or proprietary software used for completing Form I-9 and E-Verify processes can present many traps and mistakes made “by the software” that can lead to technical and substantive penalties in a government audit.

If utilizing electronic software for I-9 completion, employers should ensure the software complies with electronic signature requirements, which requires the system:

  • Allows individuals to acknowledge they read the attestation;
  • Attaches the electronic signature to an electronically completed Form I-9;
  • Affixes the electronic signature at the time of the transaction;
  • Creates and preserves a record verifying the identity of the person producing the signature;
  • Upon the employee’s request, provides a printed confirmation of the transaction; and
  • Includes a method to acknowledge you have attested to the required information in Section 2.

If Form I-9 is filled out on a computer without the use of an electronic software program that complies with the above signature requirements, the Form I-9 must be manually signed.

Moreover, the system must comply with retention requirements that ensures:

  • Only authorized personnel have access to electronic records;
  • You have a backup plan to recover records to protect against information loss;
  • Authorized personnel are trained to minimize the risk of wrongfully or accidentally altering or erasing electronic records; and
  • The system creates a secure and permanent record when an individual creates, completes, updates, modifies, alters, or corrects an electronic file. This record should include the date of access, the identity of the individual who accessed the electronic record, and the particular action(s) they took.

It is critical that employers are cautious regarding the separate requirements for each E-Verify and I-9. E-Verify electronically compares information entered on Form I-9; however, there are important differences between Form I-9 and E-Verify requirements, including:

  • Form I-9 is mandatory, while E-Verify may be voluntary for most employers;
  • Form I-9 does not require a Social Security Number, while E-Verify requires it;
  • Form I-9 does not require a photo of List B documents, while E-Verify requires a photo of them; and
  • Form I-9 must be used for employment authorization reverification, while E-Verify may not be used to reverify employment authorization.

Jackson Lewis attorneys are available to assist in evaluating software products, training staff regarding Form I-9 and E-Verify requirements, and assisting with self-audits to ensure compliance.

Students studying in the United States in F or M visa status must have a foreign residence that they have no intention of abandoning. A new USCIS policy manual update has clarified that being the beneficiary of a PERM application or an immigrant visa petition does not mean the student cannot demonstrate their intention to depart after their temporary stay in the United States.

This was a particularly thorny issue before this clarification. For instance, students might be working in OPT or STEM OPT status for an employer that offers to sponsor them for a green card. Students would like to start a sponsorship soon in order to obtain a priority date, even if they might not be able to adjust status to permanent resident status for many years. The problem has been that being sponsored could mean they could not travel abroad and renew their F visas because they would be considered to have nonimmigrant intent. Indeed, they might be “trapped” in the United States until they manage to obtain H or L status (which allows dual intent).

USCIS acknowledges in the new guidance:

“The foreign residence requirement should be adjudicated differently for students than for other nonimmigrants. Typically, students lack the strong economic and social ties of more established applicants, and they plan longer stays in the United States. INA 101(a)(15)(F)(i) assumes that the natural circumstances of being a student do not disqualify the student from qualifying for nonimmigrant status. Considerations should include the student’s present intent, not what they might do after a lengthy stay in the United States.”

The new policy recognizes that students “are young” and may not be able to explain fully their plans or their post-graduation long-range plans. It should suffice that they have a present intent to leave the United States at the completion of their studies. Of course, nothing is guaranteed, and an officer adjudicating an F or M visa would have to look at all of the circumstances to determine the student’s present intent.

The new policy guidance also clarifies that students with STEM degrees may qualify for STEM OPT even if they will be working for a start-up company. Before this clarification, there were questions on whether a start-up with limited resources could provide the necessary training. What the guidance makes clear is that there is no presumption a start-up cannot sponsor STEM OPT. The company will need to show (among other things) that it has the ability to:

  • Adhere to the training program;
  • Remain in good standing with E-Verify; and
  • Provide compensation to the STEM student that is basically equivalent to the pay provided to similarly situated U.S. workers.

Finally, the new policy guidance gathers all the numerous existing policies regarding students (including, among others, eligibility, transfers, on-and-off campus employment, practical training, and transfers) making finding information about these topics easier. (USCIS added 6 chapters and an appendix.)

Jackson Lewis attorneys are available to assist with questions regarding foreign national students, their employment, and strategies for retention.

Washington, D.C. joins a growing group of states requiring employers to include projected salary ranges in job postings and to restrict the use of pay history in setting pay.

On Jan. 12, 2024, the mayor of D.C. signed the Wage Transparency Omnibus Amendment Act, which, among other things, requires private employers, regardless of size, to disclose pay ranges in all job postings and advertisements. Because the D.C. budget is controlled by Congress, the Amendment was sent to Congress for a 30-day review on Jan. 22, 2024, with a projected law date of March 9, 2024. The new law is scheduled to go into effect on June 30, 2024.

The Amendment requires employers to include in job postings the minimum and maximum projected salary or hourly wage for the position. Employers not only must disclose the projected salary in public job postings, but they also must do so in any internal job postings of the position. The Amendment also requires employers to disclose to prospective employees the existence of other benefits (such as healthcare or bonuses) before the first interview.

The Amendment prohibits employers from screening job applicants based on wage history. The Amendment does not specifically address remote positions.

Employers will be required to post a notice in the workplace notifying employees of their rights under this law. The notice must be posted in a conspicuous place in at least one location where employees congregate.

The new requirements under the Amendment will also affect the PERM labor certification process for employers sponsoring foreign nationals for “green cards.” Employers can prepare for these changes by:

  • Reviewing and modifying, as needed, all recruitment postings (both external and internal) to ensure these postings include the required salary ranges.
  • Reviewing internal interviewing protocols to ensure disclosure of benefit information upon request or before conducting a screening interview (whether by phone or in person) with an applicant for the PERM position.
  • Reviewing internal interviewing protocols to ensure no historical pay information is requested from prospective employees or from their prior employers. Indeed, this would not even be relevant because the applicant for the PERM position will know the salary range.
  • Training employees involved in the PERM process on the benefit disclosure requirements and the salary history restrictions.

The law aims to increase pay equity and to address historical wage gaps. While the law does not create a private right of action for employees, the Amendment provides the attorney general the authority to investigate violations and to bring civil actions against an employer or seek remedies on behalf of individuals or the public. Employers found to have violated the law may be subject to civil fines ranging from $1,000 to $20,000 per occurrence.

Jackson Lewis attorneys are available to assist in navigating the best strategy for PERM processes in light of the many new pay transparency laws.

President Joe Biden announced Deferred Enforced Departure (DED) for up to 18 months for Palestinians currently residing in the United States. The president took this action due to the terrorist attacks on Israel on Oct. 7, 2023, the military response, and the humanitarian conditions in the Palestinian territories, particularly Gaza. Individuals do not need to apply for DED if they meet the eligibility conditions. But an application is required if they desire work authorization.

It is believed that the grant of DED will affect approximately 6,000 Palestinians who have been present in the United States since Feb. 14, 2024. It will not include anyone:

  • Who has voluntarily returned to the Palestinian territories after Feb. 14, 2024;
  • Who has not continuously resided in the United States since Feb. 14, 2024;
  • Who is not admissible or is subject to extradition; or
  • Whose presence in the United States presents a danger to public safety or potential serious adverse foreign policy consequences.

DED is temporary relief from removal that the president may authorize. In conjunction with DED, President Biden has authorized the Department of Homeland Security to suspend certain requirements for Palestinian F-1 students who, due to the conditions in their home territory, need to be able to work longer hours and attend fewer courses than is usually allowed.

Individuals from Hong Kong and Liberia are also authorized for DED.

Details regarding Palestinian DED and instructions on how to apply for work authorization are due to be published in the Federal Register soon.

Jackson Lewis attorneys are available to answer any questions regarding DED, Temporary Protected Status, and verification of work authorization for those in these categories.

The U.S. government has adjusted export control regulations in an effort to protect U.S. national security interests. The revisions primarily affect export of electronic computing items and semiconductors to prevent foreign powers from obtaining critical technologies that may threaten national security. As manufacturers are facing increased demand for their products and critical labor shortages, they may find themselves seeking to hire foreign national talent and navigating U.S. export control and immigration and anti-discrimination laws. Please see our full article co-authored by our immigration group here.

USCIS published its Improving the H-1B Registration Selection Process and Program Integrity final rule on Feb. 2, 2024. The new final rule has three basic categories: creating a beneficiary-centric selection process, specifically allowing for start date flexibility, and other enhancements to the integrity of the selection process.

This is the first phase of final rules that have been expected based on the Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Works Rule that was released for Notice and Comment in October 2023.

USCIS wanted to get the improvements in the H-1B cap process into effect in time for this year’s lottery. Clarifications on H-1B definitions and others regarding nonimmigrant visa filings are not in this final rule.

Beneficiary-Centric

DHS has introduced a beneficiary-centric selection process to reduce manipulation problems. No matter how many petitioners submit registrations for the same beneficiary for bona fide job openings, the beneficiary will be entered only into the lottery once. When a beneficiary is selected, all petitioners who submitted registrations for that individual will be notified. This likely will give beneficiaries more ability to negotiate with employers about which job to accept.

In addition, the final rule makes clear that a valid passport or other valid travel document will be required to participate in the registration. “Valid travel documents” was added so stateless individuals could be included in the lottery. The travel document must be valid for entry into the United States, the rule notes. A beneficiary can use only one passport or travel document for all lottery submissions. Certain changes in passport and travel document information between the registration and the filing of a petition may be acceptable if the information has to do with marriage, change in gender identity, or a lost or stolen passport or travel document.

DHS did not to address whether related entities would be prohibited from submitting multiple registrations for the same beneficiary as this might not be necessary once the beneficiary-centric selection process is in place.

Start Date Flexibility

DHS has clarified that petitions may be filed with start dates after October 1 of the relevant year if the case is not filed more than six months before the proposed start date. DHS did not address extending cap gap protection to qualified students, which was part of the October 2023 proposed rule.

Enhancing Integrity

Under this category, DHS codified its ability to deny or revoke an approved petition if:

  • There is a change in a beneficiary’s identifying information from the registration to the petition filing;
  • It discovers an invalid registration fee;
  • It discovers the petition is not based on a valid registration; or
  • It discovers that statements made in the registration attestation, the petition, or the LCA were inaccurate, fraudulent, or misrepresent a material fact.

When a registration is submitted, the petitioner signs the following attestation under the penalty of perjury:

  • All the information contained in the registration submission is complete, true, and correct;
  • The registration(s) reflect a legitimate job offer; and
  • The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If you have any questions about the new rule and how it will affects your upcoming cases, please reach out to your Jackson Lewis attorney.

Many USCIS filing fees are being adjusted upward beginning on April 1, 2024. That date, of course, is particularly significant. It is the earliest date that Cap H-1Bs can be filed.

The H-1B filing fee, for example, will rise from $460 to $780. The ACWIA Fee (to fund the training of U.S. workers) and the Fraud Fee will remain the same: $750-$1,500 (depending on the employer’s size) and $500, respectively. USCIS is adding an Asylum Program Fee (APF) of $600 for most employers filing I-129s (Petitions for Nonimmigrant Workers). That brings the total H-1B fee for most employers up to $3,380 (without any premium processing).

The only fee increase that will not affect this year’s cap cases is the registration fee. It will remain at $10 per registration for the 2024 lottery season. Next year, the registration fee will jump to $215 per registration.

There will be an exception to the H-1B filing fee increase for small employers (those with fewer than 25 full-time equivalent employees, or FTEs) and nonprofits. For those groups, the filing fee will remain at $460. They will also be excepted from the full APF. Instead of $600, the APF will be $0 for nonprofits and $300 for small employers.

In instituting the new fees, USCIS, which is fee-funded, notes that the filing fees have not been fully updated since 2016. The new fees have been set to cover adjudication costs completely and balance “beneficiary pays” and “ability to pay” principles. USCIS received more than 5,400 comments in response to their notice of rulemaking and that led to some changes in the final rule. A few fees went down – none went up. Basically, the most significant fee increases are still for employment-based cases, with some small discounts for online filings where possible.

Examples of the new filing fees for employers with more than 25 FTEs include:

  • Form I-129 L visa fees – go from $460 up to $1,385 plus the $600 APF
  • Form I-129 O visa fees – go from $460 up to $1,055 plus the $600 APF
  • Form I-129 H-2B for Temporary Nonagricultural Season Workers (with named beneficiaries) – go from $460 to $1,080 plus the $600 APF
  • Form I-539 Applications for Dependents – go from $370 up to $470
  • Form I-140 Immigrant Visa Petition – go from $700 up to $715 plus the $600 APF
  • Form I-485 Application to Register Permanent Residence of Adjust Status – go from $1,140 up to $1,440
  • Form I-765 Applications for Employment Authorization – go from $410 up to $520
  • Form I-526/526E Immigrant Petition by a Standalone/Regional Center Investor – go from $3,675 up to $11,160

The full table of fee increases takes up eight pages in the Federal Register.

Along with the new fees, revised forms will go into effect on April 1, 2024. USCIS will accept prior forms during a grace period that will run through June 3, 2024. However, there will be no grace period for several forms including Forms I-129 and Forms I-140.

Jackson Lewis attorneys are available to assist you to strategize and budget for the new fees.

USCIS announced the extension and redesignation of Syria for Temporary Protected Status (TPS) for 18 months from April 1, 2024, to Sept. 30, 2025. The redesignation is based on the continuing civil war and the accompanying dire humanitarian consequences taking place in Syria.

Individuals who are already in Syrian TPS must apply for the extension of their status and renewal of their employment authorization documents (EADs) during the 60-day re-registration period that will run from Jan. 29, 2024, to March 29, 2024. They should not wait until their employment authorization is due to expire.

Recognizing that even those who timely apply may still experience a gap in work authorization due to USCIS backlogs, individuals with Syrian TPS EADs expiring on March 31, 2024, Sept. 30, 2022, or March 31, 2021, will be entitled to an automatic extension through March 31, 2025.

Individuals with already pending requests for TPS extensions or EAD renewals do not need to reapply. When their applications are approved, they will be approved until Sept. 30, 2025. For more information on the automatic extensions, please see our TPS Tool.

The redesignation of Syria for TPS will allow approximately 2,500 Syrians already living in the United States who do not have TPS to apply and request EADs. Beyond the general eligibility requirements, these individuals will have to show that they have been continuously residing in the United States since Jan. 25, 2024, and have been continuously physically present in the United States since April 1, 2024. Individuals applying under the redesignation may apply up until Sept. 30, 2025. For full information on the re-registration and application process, please see the Federal Register.

Along with this extension, a Special Student Relief notice for F-1 nonimmigrant students from Syria will allow eligible students to request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 status through the new designation period.

Jackson Lewis attorneys are available to assist in determining in what circumstances employers’ Form I-9 Employment Eligibility Verification is required.

The increasing need for talented workers in the United States has more and more employers considering eliminating bachelor’s degree requirements from job descriptions. A recognition of the value of skills and experience over formal education may be driving the trend. See our full article on these issues and considerations here.

USCIS previously deferred its proposed filing fee increase until early 2024 – and the increase might be coming out very soon! This increase will come on top of the increased premium processing fees that will go into effect on Feb. 26, 2024. The premium processing fee increase is approximately 12%. Some of the proposed general filing fee increases went well beyond that.

The agency’s budget is fee-based and the increased fees were proposed to recover operating costs and decrease backlogs. The burden of the new increased filing fees would fall primarily on employers – both large and small. The H-1B visa would be raised by 70%, from $460 to $780. The registration fee for Cap H-1Bs would increase from $10 to $215. There would also be a surcharge of $600 added to all I-129 Nonimmigrant Worker Petitions and all I-140 Immigrant Petitions for Alien Workers specifically to cover costs associated with humanitarian applications. The entire proposed fee schedule can be found in the Federal Register in tables in Section II C.

USCIS received a great deal of negative commentary from employers and the delay in publishing the final rule could indicate that USCIS has seriously considered making some changes.

Jackson Lewis attorneys are following this matter closely and will provide updates as soon as they become available.