Flexibility in completing I-9 Employment Verification Forms has been continued until March 31, 2021, and it may be extended beyond that. Under that flexibility, employers have been allowed to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).

Nevertheless, as companies “return” to worksites and show their own flexibility in remote working scenarios, it is time to start planning and preparing for how to do the required in-person verifications and for the ultimate end of ICE’s flexibility. The rule is that once “normal operations resume,” in-person verification must be completed within three business days. ICE has not provided much guidance on what constitutes that resumption.

There are so many variations in the way companies have been working remotely. Here are a few ways the end of the flexibility policy could play out.

First, where ICE decides to end flexibility on a date certain and requires in-person verification within three days or by a certain date, employees who were verified virtually will have the specified number of business days to report for in-person verification. The hope is that ICE will provide sufficient notice before ending the policy or will give employers at least 60 days to re-verify their employees.

Second, where some employees, but not all, are returning to the worksite before the end of the policy, employers should ask employees who are returning and were verified virtually to report within three business days of their return for in-person verification.

Third, where the employer is continuing remote operations due to COVID-19 concerns even after the end of the flexibility policy, ICE might consider the circumstances on a case-by-case basis. How the agency will ultimately respond to an employer’s continuation of virtual verification is unknown.

Given the uncertainty, advance planning will be important, especially if a large number of employees have been verified virtually. Consider the following:

  • Make sure you have maintained a list of all employees who were verified virtually, when they will be returning to work, and the deadline for their in-person verification.
  • Determine who will be conducting the in-person verifications and how and when they will be reaching out to the affected employees. Remember that using authorized representatives to do the in-person review, as always, continues to be an option. Any person can be an authorized representative. Remember: the employer remains liable for any mistakes made by the representative and representatives should not be biased.
  • Train staff on how to update I-9 forms after the in-person review. After the physical inspection, the employer or authorized representative should note “COVID-19” as the reason for the delayed in-person inspection and “documents physically examined” with the appropriate date and the name of the person who conducted the review in the “Additional Information” field in Section 2 of the I-9 or in Section 3 (for reverification) as is appropriate.

Jackson Lewis attorneys are available to answer questions and help to develop strategies to deal with the uncertainties regarding the continuation of Form I-9 flexibility.

President Joe Biden has revoked the immigrant visa ban because he believes it did not advance the interests of the United States, but instead harmed United States industries, families, and diversity immigrant visa lottery winners.

The ban was put in place by former President Donald Trump in April 2020 on the stated ground that it was necessary to protect U.S. workers in the aftermath of the COVID-19 pandemic. It has prevented individuals who were abroad from seeking to enter the United States as permanent residents. Originally set to last for only 60 days, the ban was extended through March 31, 2021, by President Trump. The immigrant visa prohibition prevented some talented employment-based applicants from entering, but most of the people affected were diversity visa lottery winners, as well as family members of U.S. citizens and lawful permanent residents, who were prevented from joining their families in the United States.

This is now the third Trump travel ban that Biden has terminated. The first two were the bans that prevented individuals from 13 primarily Muslim or African countries from entering the United States. Still in effect is the nonimmigrant visa ban that has been thwarting U.S. businesses by preventing certain applicants for H, L, or J status from obtaining visas or coming to the United States absent an exemption or a national interest exception. This ban, like the immigrant visa ban, is still set to terminate on March 31, 2021, but it is not clear if that will happen.

The other travel ban that has been making it difficult for businesses to function is the 14-day ban that prohibits U.S. entry by individuals who have been in over 30 countries (China, Iran, the U.K., Ireland, the 26 Schengen countries, Brazil, and South Africa) in the 14days prior to their arrival in the United States. This ban, unlike the immigrant and nonimmigrant visa bans, is based on COVID-19-related health concerns.

The Department of State has issued specific instructions on how to proceed for 2020 Diversity Visa Applicants and immigrant visa applicants who were previously refused visas or entry due to the April 2020 proclamation. In addition, the Secretary of State has granted a national interest exception for 2020 Diversity Visa Applicants who hold valid visas but are subject to one of the 14-day bans.

Jackson Lewis attorneys are available to assist you in developing strategies to deal with the bans that are still in effect and to advise on the effects of the most recent revocations.

In a surprising and welcome development to U.S. employers, USCIS today announced that employers filing E-3 visa petitions on behalf of Australian nationals will have the option of requesting premium processing when requesting a change or extension of status to E-3.

The E-3 visa for Australian professionals became law in 2005. Currently a maximum of 10,500 are available each year, but, unlike the H-1B cap, the E-3 limit has never been reached. This makes it an attractive visa alternative for Australians, especially when H-1Bs are not available.

E-3 visas allow Australian nationals to enter the United States to perform work in a specialty occupation, as long as the beneficiary has a bachelor’s degree or its equivalent in the relevant field. The supporting documentation must include, among other things, a Labor Condition Application like those required for H-1Bs.

The E-3, like the TN visa for Canadians and Mexicans, is known as a “fast track” visa because an individual may apply for an E-3 directly at a Consulate abroad – without filing a Form I-129 with USCIS. But in these days of COVID-19, applying at a Consulate abroad may not be practical when the new hire is already in the United States. So, having the ability to premium process a case likely will come in handy even with the additional USCIS filing fees – including the $2,500 premium processing fee.

This premium processing announcement is the second step USCIS has taken to make E-3 visas more equivalent to other nonimmigrant visas. The first step was in 2016, when USCIS clarified that E-3 nonimmigrants (like other nonimmigrants) have up to 240 days of continued automatic employment authorization with the same employer beyond their current expiration date if the employer timely files an extension of stay request.

Last October, in a Continuing Resolution, Congress announced that new visa benefit types would become eligible for premium processing. The new benefit types included EB-1 petitions for multinational executives and managers, EB-2 petitions for those seeking national interest waivers, applications to change nonimmigrant status to F, J, or M, applications to change or extend status as the dependent of an E, H, L, O, P, or R visa holder, and applications for employment authorization. These are not yet in effect and will not go into effect until USCIS issues regulations setting out the specific fees and adjudication times. The E-3 visa was not included in that list, but perhaps the extension of premium processing to E-3 visas will lead to more announcements.

Jackson Lewis attorneys will provide updates and are available to assist with any questions about E-3 applications for Australians.

On March 1, 2021, USCIS will be returning to the 2008 version of the naturalization civics test. This change is a response to President Joe Biden’s Executive Order, “Restoring Faith in Our Legal Immigration System,” that directed a review of the naturalization process to eliminate barriers to the process. Individuals who file naturalization applications with receipt dates on or after March 1, 2021, will take the “old” 2008 version of the test.

The Trump administration retired the 2008 version of the test and introduced a new version that became effective on December 1, 2020. That test introduced new questions and restructured others.

Those who filed their applications on or after December 1, 2020 (when the Trump administration test was in effect), but before March 1, 2021 (when the 2008 version of test becomes effective again) with an interview scheduled before April 19, 2021, will have the choice of taking either the 2008 test or the 2020 test. If the interview is scheduled on or after April 19, 2021, they will take the 2008 test. Those who take the 2020 test will have to answer 12 out of 20 questions correctly to pass. Those who take the 2008 test will have to answer 6 out of 10 questions correctly to pass. Each test has its own set of study questions – 128 for the 2020 version and 100 for the 2008 version.

The relevant study materials for both tests are available on the USCIS Citizenship Center website.

Jackson Lewis attorneys are available to assist you with any questions regarding the naturalization process, including the required civics and English language tests.

The United States Citizenship Act was introduced on February 18, 2021. Sponsored in the House by Representative Linda Sanchez (D-Calif) and in the Senate by Senator Bob Menendez (D-N.J.), the bill calls for broad immigration reform, including creating paths to citizenship for undocumented immigrants, expanding the number of available visas, and creating more access for highly skilled workers.

Much of the focus has been on the proposed eight-year path to citizenship for “Dreamers,” TPS beneficiaries, and the 11 million undocumented individuals currently living in the United States. Other highlights include changes to asylum policies and increased aid to Central America to address root causes of migration. Major changes have also been proposed regarding on immigrant and nonimmigrant employment-related visas.

For immigrant visas, the bill tries to balance the economic benefits of increased immigration with concerns for U.S. workers. Key proposals include:

  • Increasing the number of employment-based green cards available each year from 140,000 to 170,00 and adding left-over visas from FY 1992 through FY 2020 into the mix;
  • Eliminating numerical limitations for those whose immigrant visa petitions have been approved and who have been waiting to adjust status for more than 10 years;
  • Eliminating per country caps altogether beginning in FY 2022;
  • Exempting U.S. doctoral STEM graduates from the numerical limitations;
  • Creating a pilot program for regional economic development that would allow for an additional 10,000 immigrants per year based on localized economic development strategies; and
  • Authorizing the Department of Homeland Security (DHS) and the Department of Labor (DOL) to temporarily reduce the admission of EB-2 and EB-3 immigrants during times of high unemployment in particular labor markets or geographic areas.

Similarly, key provisions regarding nonimmigrant, temporary work visas include:

  • Authorizing employment for all H-4 spouses and children;
  • Authorizing one-year extensions of work authorization for those in F-1, H-1B, L, and O status if their immigrant visa petition or labor certification authorization has been pending for more than one year;
  • Exempting F-1 students at institutions of higher education from dual intent restrictions; and
  • Authorizing DHS in conjunction with DOL to prioritize the distribution of H-1B visas based upon the offered wage – a wage hierarchy as has already been proposed by regulation.

Recognizing that several recent attempts at passing a comprehensive immigration bill have not made it out of Congress, initial discussions include a “multiple trains” strategy – prioritizing pieces of the bill to move through Congress – while continuing to push for the broader overhaul.

President Joe Biden has noted that he has “laid out [his] vision for what it will take to reform our immigration system and [he] look[s] forward to working with leaders in Congress to this done.”

As the negotiations in Congress and with the White House move forward, we will provide updates regarding the aspects of the bill that are likely to succeed.

USCIS announced that on May 14, 2021, it will dispose of 10 years of records dated on or before December 31, 2010, from its Historic Records Report. Employers that use E-Verify have until May 14, 2021, to download case information they wish to retain.

This is not a new procedure, USCIS has been disposing of records that are 10 years old in accordance with the National Archives and Records Administration (NARA) records retention and disposal schedule. USCIS is required to dispose of E-Verify records to minimize security and privacy risks associated with the retention of Personal Identifiable Information.

Employers that use E-Verify are required to record or print and file the E-Verify case verification number for each corresponding Form I-9 Employment Eligibility Verification and may retain the historic records report with corresponding I-9 forms.

If you have questions about whether to download and retain this information and how this comports with your company’s record retention policies, please reach out to your Jackson Lewis attorney.

The United States-Canada border is not only the world’s longest international border, but it includes some of the busiest commercial crossings in North America. New travel restrictions have been implemented as the COVID-19 pandemic continues.

Non-Essential Travel Ban

The land border has been closed to “non-essential” travel since March 2020 due to COVID-19. Restrictions include:

  • Individuals are not admitted for tourism, sightseeing, recreation, gambling, attending cultural events, or other non-essential purposes. They are admitted for “essential” purposes, which include travel for work, medical reasons, to attend educational institutions, and diplomatic or military related travel.
  • Citizens or permanent residents of the country they are entering are excepted from the ban.
  • Testing Requirements
    • Anyone entering Canada at a land port of entry must show a negative COVID-19 test that was taken within 72 hours of seeking entry.
    • No parallel testing requirement for entering U.S. land ports of entry.

The “non-essential” travel ban does not apply to individuals entering the United States or Canada by air. However, testing requirements apply:

Quarantine Requirements

While the U.S. government has the authority to enforce quarantines upon entry, the current CDC guidelines have no specific penalties for failure to comply. Canada regulations, on the other hand, include penalties.

Jackson Lewis attorneys are available to assist with any questions regarding travel between Canada and the United States, as well as any other international travel.

On January 19, 2021, just before the end of his term, President Donald Trump issued a memorandum granting Deferred Enforced Departure (DED) for certain Venezuelans for a period of eighteen months. DED is a humanitarian grant of protection for individuals who cannot return to their home country. DED beneficiaries are not subject to removal during the designated time period and, in this case, will be eligible to request employment authorization. DED is discretionary and granted on the basis of the President’s constitutional power to conduct foreign relations.

The memo granting Venezuelan DED references the violations of sovereign freedoms in Venezuela and the “catastrophic economic crisis and shortages of basic goods and medicine” that has forced thousands of Venezuelans to flee their home country. It is estimated that there are approximately 200,000 Venezuelans (many of whom have U.S. citizen children and half of whom are living in Florida) who will benefit from this grant of DED. The benefit will only apply to otherwise eligible individuals who were physically present in the United States on January 20, 2021 (the day after the memorandum was issued). While DED is conferred automatically, USCIS has not yet issued instructions on how to apply for employment authorization corresponding with this benefit.

In the meantime, a bipartisan group of representatives and senators have introduced a bill to provide Temporary Protected Status (TPS) for eligible Venezuelans. TPS is similar to DED but is granted either by the Department of Homeland Security (DHS) or the Congress through legislation. A grant through legislation would provide a more secure benefit for the eligible Venezuelans. In addition, at this time, the Biden-Harris Administration has introduced the U.S. Citizenship Act of 2021 which, if passed, could provide a path to citizenship for TPS beneficiaries.

If you have any questions about Venezuelan DED or TPS, please reach out to your Jackson Lewis attorney. We will provide updates as they become available.

With the H-1B cap season about to begin, there is good news for computer programmers and those who employ them. USCIS announced the immediate rescission of a 2017 guidance memo that had raised questions about whether computer programmers qualified for H-1B specialty occupation visas. The 2017 guidance, issued in the wake of the Buy American, Hire American Executive Order, led to a slew of Requests for Evidence (RFEs) and denials.

USCIS’s rescission of the 2017 guidance follows a December 2020 decision of the Ninth Circuit of Appeals in Innova Solutions v. Baran. In Innova Solutions, the Ninth Circuit reversed the District Court decision and concluded that USCIS’s denial of an H-1B petition for a computer programmer was arbitrary and capricious. The court stated that there was “no daylight” between the OOH’s description of the degree requirement for a computer programmer position (“most . . . have a bachelor’s degree in computer science or a related subject”) and the statutory requirement (“a baccalaureate or higher degree . . . is normally the minimum requirement for entry”).

Because the 2017 guidance resulted from then-President Donald Trump’s Buy American, Hire American Executive Order, it is also possible that its rescission is related to President Joe Biden’s subsequent rescission of that Order. Since numerous limitations on legal immigration resulted from Buy American, Hire American, it is conceivable that the rescission of the 2017 guidance is a harbinger of other changes to come. Indeed, Biden has set up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment-based immigration.

If you have any questions about how computer programmers in your organization may be affected by the recent guidance, please reach out to the Jackson Lewis attorney with whom you regularly work.

USCIS has announced that the Cap H-1B Electronic Registration will open on March 9, 2021 at noon EST and will close on March 25, 2021 at noon EST.

The process will mirror last year’s process.

USCIS also announced its timetable – 1) it intends to notify registrants and representatives regarding selection by March 31, 2021, and 2) the earliest date that FY 2022 H-1B cap-subject petitions may be filed will be, as usual, April 1, 2021 which is a Thursday this year.

Each registration will show one of the following statuses after being submitted:

  • Submitted: The registration has been submitted and remains eligible for selection;
  • Selected: The petition has been selected to be filed as a Cap H-1B petition;
  • Not Selected: The petition is not eligible to be filed based upon the submitted registration;
  • Denied: Multiple registrations were submitted on behalf of the same beneficiary and therefore all duplicate registrations for this beneficiary are invalidated for this fiscal year; or
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

Jackson Lewis attorneys are available to assist you with the electronic registration process and have already started preparing for March 9th.