Medical examinations and vaccination records properly completed and signed by a civil surgeon after Nov. 1, 2023, can be used indefinitely, USCIS has announced. There is no longer any expiration date.

Form I-693, Report of Immigration Medical Examination and Vaccination Record, is used by some foreign nationals, including green card applicants, to show they are free from any conditions that would render them inadmissible to the United States on health-related grounds.

USCIS eliminated the expiration date because technological advancements now enable civil surgeons who do the medical examinations to share medical data with the Centers for Disease Control and Prevention (CDC) electronically. In addition, the CDC and USCIS are collaborating to improve reporting of the information collected by civil surgeons to local health departments.

This change is a big improvement for foreign nationals. Before Dec. 9, 2021, USCIS required that medical forms be signed by a civil surgeon no more than 60 days before the individual applied for the relevant immigration benefit. By March 31, 2023, USCIS changed its policy and made these medical forms valid for up to two years. Even with this two-year policy, foreign nationals still had to worry about the timing of immigration applications in relation to the signing of the medical forms and often had to pay for more than one medical examination. With the new policy of indefinite validity, these issues should be eliminated. For those with forms signed on or before Nov. 1, 2023, the two-year validity policy is still in effect.

Acceptance of the Form I-693 is still discretionary. Even a valid form might be rejected if the officer has reason to believe the applicant’s medical condition has changed or if the form does not seem to accurately reflect the applicant’s current state of health. The officer can request further evidence or an updated medical examination.

If you have any questions regarding the new policy, please reach out to your Jackson Lewis attorney.

On April 12, 2024, USCIS issued a Federal Register notice establishing procedures for Palestinians eligible for Deferred Enforced Departure (DED) to apply for Employment Authorization Documents (EADs) valid through Aug. 13, 2025. President Joe Biden had announced in February 2024 DED for up to 18 months through Aug. 13, 2025, for Palestinians who had been present in the United States since Feb. 14, 2024.

There is no application for obtaining DED classification. Palestinians are covered by DED if they meet the eligibility requirements set out in President Biden’s directive and the Federal Register. But covered Palestinians must apply for DED-based EADs. The Federal Register notice sets out the EAD application instructions.

The Federal Register notice also adds that Palestinians eligible for DED who wish to travel outside the United States based on DED must apply for travel authorization by filing a Form I-131, Application for Travel Document. If a Palestinian covered by DED leaves the United States without first receiving travel authorization, that individual may no longer be eligible for DED and may not be permitted to reenter the United States.

Jackson Lewis attorneys are available to assist you with any questions about Palestinian DED and how to complete the Form I-9, Employment Eligibility Verification, process.

The Department of Homeland Security (DHS) has extended and redesignated Temporary Protected Status (TPS) for Ethiopia until Dec. 12, 2025.

The decision to renew and redesignate is based on the ongoing armed conflict in the Amhara Region and violence in other regions of the country that includes human rights abuses and indiscriminate attacks, as well as drought, flood, and disease conditions. The extension affects about 2,300 individuals while the redesignation will allow around 12,800 individuals who are otherwise eligible to apply for TPS.

Applications for re-registration and employment authorization document (EAD) renewals should be made during the 60-day re-registration period beginning on April 15, 2024.

Those with current EADs with expiration date of June 12, 2024, will be granted automatic extensions of EADs until June 12, 2025, while they wait for their new EADs (and re-registrations) to be approved. For more information on automatic extensions for Ethiopia and other TPS countries, please see our work authorization tool.

Individuals who have already applied and have pending EAD renewals need only re-register. When their EAD cases are adjudicated, they will have Dec. 12, 2025, expiration dates.

Beyond general eligibility requirements, those who wish to make initial applications for TPS and EADs must have entered the United States on or before April 11, 2024, and continuously resided in the United States since then. The redesignation application period will run until Dec. 12, 2025.

Ethiopian students in F-1 status may request work authorization or increased work hours while school is in session if they are experiencing severe economic hardship due to the continuing crises in Ethiopia.

Please see the instructions in the Federal Register for specific information.

Jackson Lewis attorneys are available to assist in making applications and determining proper work authorization procedures.

Good news for those applying for or with pending Employment Authorization Document (EAD) renewals. DHS is temporarily reinstituting its 540-day automatic extension of work authorization for eligible individuals.

Although DHS has streamlined its EAD process and extended EAD validity periods for certain applicants from two years to five years, the government still struggles to timely process EAD applications that has resulted in processing times that are still too long. Up to 800,000 employees were in danger of employment gaps. Accordingly, DHS resumed the 540-day automatic extension for qualifying petitions that were filed on or after Oct. 27, 2023.

USCIS is considering making the new 540-day rule permanent and is accepting comments on the topic until June 7, 2024.

Applicants eligible for the new 540-day automatic extension:

  • Must have timely applied to renew their EADs on or after Oct. 27, 2023 (and the application is still pending as of April 8, 2024) or on or before Sept. 30, 2025, the new end date for the automatic 540-day extension.
  • Must be applying for an EAD in the same category as their current EAD (except for Temporary Protected Status (TPS), which can be A12 or C19).
  • The eligible categories include, among others, individuals whose EADs are based on Adjustment of Status applications, asylees, refugees, certain individuals in TPS status and individuals in H-4, E, and L-2 dependent status, asylees, and refugees. The full list is available on the USCIS website.
  • Those in H-4, E, and L-2 dependent status must also have a valid I-94, Arrival/Departure Record.

Proof of 540-day Automatic Extension for Form I-9

Those who filed for renewal on or after May 4, 2022, and before Oct. 27, 2023,should have a receipt that references the 540-day extension.

Those who file for renewal on or after April 8, 2024, should receive a receipt notice explaining the 540-day rule.

Those who filed for EAD renewal after Oct. 27, 2023, and before April 8, 2024, may present their receipt notice with their facially expired EAD. USCIS will not issue updated notices for these applicants, but it will update the webpage referenced in the receipt notice to reflect the change from the 180-day rule to the 540-day rule.

The government continues to make compliance with I-9 employment eligibility verification difficult. There are hundreds of pages of government resources explaining I-9 employment eligibility, from the I-9 instructions themselves to the M-274 Handbook and USCIS I-9 Central. The rapidity of policy changes requires constant vigilance because, if employers deny employment to a work-authorized individual, the Department of Justice’s Immigrant and Employee Rights Division is ready to investigate and potentially fine infractions. The resulting tightrope employers walk is complex and unfair, as each year compliance becomes more difficult. There is no end in sight.

Jackson Lewis attorneys are available to provide guidance on completing Form I-9 for those on automatic extensions as well as on proof of employment authorization for hiring, rehiring, and reverification.

The Department of Homeland Security (DHS) has published instructions on how to apply for the extended and redesignated Temporary Protected Status (TPS) for Burma (Myanmar).

On March 25, 2024, DHS extended and redesignated TPS for Burma until Nov. 25, 2025.

Applications for re-registration and employment authorization document (EAD) renewals should be made during the re-registration period: March 25, 2024–May 24, 2024.

Those with current EADs with expiration dates of May 25, 2024, or Nov. 25, 2022, will be granted automatic extensions of EADs until May 25, 2025, while they wait for their new EADs to be approved. For more information on automatic extensions for Burma and other TPS countries, please see our work authorization tool.

Individuals who have already applied for EAD renewals need only re-register. When their EAD cases are adjudicated, they will have Nov. 25, 2025, expiration dates.

Beyond general eligibility requirements, those who wish to make initial applications for TPS and EADs must have entered the United States on or before March 21, 2024, and must be continuously physically present from May 26, 2024. The redesignation application period will run until Nov. 25, 2025.

Burmese students in F-1 status may request work authorization or increased work hours while school is in session. They still must maintain their F-1 status if they are experiencing severe economic hardship due to the continuing crises in Burma.

Please see the instructions in the Federal Register for specific information.

Jackson Lewis attorneys are available to assist in making applications and determining proper work authorization procedures.

Chinese students make up the majority of international students in the United States. However, the number of Chinese students in U.S. universities has dropped from a high of 370,000 in 2019 to about 290,000 today.

Part of the drop has been attributed to the Trump Administration’s 2020 executive order suspending entry of certain students and researchers from the People’s Republic of China (PRC). That proclamation applies to Chinese nationals in F or J status (other than undergraduates) who were associated with an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy.” The executive order started to chill among Chinese graduate students and researchers who feared discrimination or being denied entry at first or after travel abroad. Then, COVID-19 pandemic restrictions made travel difficult.

Over the last four years, Chinese students – particularly those in STEM fields – have received extra scrutiny. In November 2023, President Joe Biden and President Xi Jinping agreed to promote educational exchanges. Recently, though, a number of these students have been questioned by U.S. officials for hours, banned from entry, and even repatriated. Chinese students in the United States have gathered to discuss their concerns. The Chinese Embassy in the United States made “solemn representations” to the government about this treatment. The Department of State has responded that the detention and inadmissibility rate has been stable over the years and that fewer than 0.1 percent of Chinese students who arrive in the United States have been detained and found to be inadmissible.

 Not only is the number of Chinese students coming to the United States declining, but the number of American students in China is also declining. Before the pandemic, approximately 10,000 American students were in China, compared to fewer than 1,000 today.

International students overall provide 28 percent of tuition revenue to U.S. colleges and universities. Chinese students still make up the majority of international students in the United States. Interestingly, the decline in students from China has coincided with an increase in students from India.

Jackson Lewis attorneys are available to assist with visa and travel advice for all international students.

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 automatically pre-populate the Form I-9 with employee information derived from information the employer has accessed externally, 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.