The Department of Homeland Security (DHS) announced a further extension of status and work authorization until October 4, 2021, for Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan on December 9, 2020.

TPS allows individuals to remain in the U.S. because of disease, natural disaster, or conflict in their home countries. Approximately 400,000 nationals from 10 countries have been granted TPS. Many of those beneficiaries have been in the U.S. for years and have U.S. citizen children. Since 2017, the Trump Administration has been trying to terminate TPS for most countries. Some of the Administration’s actions, however, have been enjoined by court challenges that are still continuing. In response to court orders, DHS has been extending both TPS and work authorization for the covered beneficiaries.

As of December 9, 2020, work authorization for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will be extended automatically if:

  • The individual’s current EAD was issued with an A-12 or C-19 category code, and
  • Carries an expiration date of:
    • July 22 or November 2, 2017
    • January 5, January 22, March 9 June 24, July 5, or November 2, 2018
    • January 5, April 2, June 24, July 22, or September 9, 2019
    • January 2, January 5, or March 24, 2020
    • January 4, 2021

Forms I-94 and I-797 also will be automatically extended until October 4, 2021, if the beneficiaries properly filed for re-registration during one of the DHS-announced re-registration periods.

To complete or update Form I-9 Work Authorization Verifications, the beneficiary may present their EAD card (with one of the above expiration dates) along with the Federal Register notice automatically extending work authorization until October 4, 2021.

Extending work authorization for current employees based upon this automatic extension does not require Form I-9, Section 3 reverification. Instead, the employer should update the Section 2 Additional Field noting EAD EXT, October 4, 2021 (and then initial and date the correction). In this situation, reverification would not be required until October 5, 2021.

If any of the cases that have blocked the TPS terminations conclude in the government’s favor before October 4, 2021, DHS has promised there will be winddown periods of at least 120 days to allow a reasonable repatriation. Since President-Elect Joseph Biden has pledged to review TPS for those in vulnerable populations who cannot safely return to their home countries, it would seem that the timing of the extension, along with the upcoming inauguration, may favor those in TPS.

For more information about TPS work authorization, please reach out to your Jackson Lewis attorney. You may also refer to our TPS Tool.

On December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions blocking USCIS from enforcing the “new” Public Charge Rule in 18 states and the District of Columbia.

The Court found the rule was inconsistent with any reasonable interpretation of the statute which requires long-term dependence on government support, not temporary resort to supplemental non-cash benefits. It opined that:

Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence.

The Court also found the new rule was “arbitrary and capricious” because the Administration failed to adequately consider:

  • The financial effects of the new rule not only on legal immigrants, but also on the states to which they would turn after withdrawing from federal programs to protect their immigration statuses;
  • The effects on public safety, health, nutrition, hospital resources, and vaccination rates especially in this time of COVID-19; and
  • The abrupt change from the original 1999 guidance that focuses on long-term dependence.

The new Public Charge Rule has been controversial since it was first proposed by the Trump Administration. Characterized as a “wealth test” by immigration advocates, the rule has been the subject of litigation in various jurisdictions. There have been injunctions and stays of injunctions. This has led to a situation where one month, the rule was effect in some jurisdictions, but the next, it was not, and then a little later, it was in effect again. This endless back and forth has meant that applicants for Adjustment of Status and nonimmigrant visas are never quite sure whether the new Public Charge Rule will apply to their applications or not. This uncertainty has been particularly impactful in a year when immigrant visas became available for certain heavily backlogged categories and a significant number of applicants have been able to file Adjustment of Status applications beginning in October. As of November 4, 2020, USCIS was applying the new Public Charge Rule to all petitions postmarked or submitted electronically on or after February 24, 2020. But, USCIS has not yet reacted to the Ninth Circuit’s ruling.

The 18 plaintiff states (plus the District of Columbia) that are affected by the Ninth Circuit’s ruling are: California, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Washington and Virginia.

We await the Administration’s review and reaction to the ruling and will provide updates as they become available.

On December 1, Judge Jeffrey S. White granted the plaintiffs’ request to set aside two separate rules issued by the Trump Administration that would have drastically undermined the ability of employers to utilize both the H-1B and PERM visa programs. In Chamber of Commerce of the United States v. United States Department of Homeland Security, Judge White held that the Administration violated the Administrative Procedures Act (APA) when it enacted two rules: the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule (the “Wage Rule”) and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule (the “H-1B Visa Classification Rule”). Both were issued as Interim Final Rules and without the usual Notice and Comment required by the APA.

The new rules threatened to upend the H-1B and PERM labor certification programs by changing statutory definitions, targeting staffing and consulting firms with onerous requirements, and hiking required wages by 35% to 200%. The Wage Rule has been in effect since October 8, 2020, and the H-1B Visa Classification Rule was to go into effect on December 7, 2020.

Judge White stated that he was “once again confront[ing] a challenge to the Administration’s assertion that the H-1B program adversely affects American Workers to such a degree it must take immediate action.” He was not persuaded by the Administration’s arguments that the COVID-19 pandemic created a situation that justified dispensing with “due deliberation” required by the APA, or that giving more notice would have hindered the Department of Labor’s ability to solve the problem it alleged. He found that the Administration could not rely on the pandemic to invoke exceptions to the APA for several reasons, including:

  • The new rules have been on the Administration’s Regulatory Agenda since 2017 – well before the COVID-19 national emergency; and
  • The unemployment rate in the sectors that typically use H-1B visas was only 4.8%, not the skyrocketing rates that have been seen in other sectors during the pandemic.

Judge White had previously enjoined the DHS’ implementation of a new rule that would have increased the USCIS filing fees for many business-related immigration petitions and naturalization and asylum fees, as well as the Presidential Proclamation that suspended the entry of certain individuals in H, L, and J status. These rules have one thing in common: they would disrupt the immigration process in one way or another.

The Administration has not yet responded to Judge White’s new ruling. Jackson Lewis attorneys will provide updates as soon as they become available.

 

Along with extending its flexibility in allowing virtual Form I-9 employment verification until December 31, 2020, USCIS is also continuing its flexibility with regard to long-pending Employment Authorization Document (EAD) applications. USCIS expected that this interim solution would only be necessary through December 1, 2020, but the delays in producing EAD cards have continued.

As a result, USCIS announced that certain individuals may continue to present Form I-797, Notices of Approval, for I-9 purposes until February 1, 2021.  New employees and those needing to reverify their employment authorization may continue to present Form I-797 EAD approval notices instead of EAD cards if:

  • The Form I-797 indicates that the EAD has been approved for at least three months;
  • The Form I-797 has a Notice Date between December 1, 2019 and August 20, 2020; and
  • The employee can present (or has previously presented) an acceptable List B identity document.

The approval notice should be entered on the Form I-9 as a List C document with USCIS as the issuing authority and the 13-digit receipt number as the document number. The expiration date should be listed as February 1, 2021 and reverification should be conducted by that date or sooner if the employee receives their EAD card. Absent any further extensions, by February 1, 2021, the employee will need to present either a List A or a new List C document.

For any employees verified or reverified on the basis of the earlier USCIS guidance who still do not have EAD cards, an extension until February 1, 2021 should be noted in the Additional Information box in Section 2 of Form I-9.

For any questions regarding the Form I-9 process including best practices regarding flexibility in the E-Verify or electronic I-9 database context, Jackson Lewis attorneys are available to provide assistance and guidance.

Once again, just as it was about to expire, ICE has announced a further extension of flexibility in its rules related to Form I-9 compliance. This time, the extension will continue through December 31, 2020.

Employers will be able to continue to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).

ICE has reiterated that the policy applies only to employers with workplaces that are operating remotely and that if employees are physically present at the workplace, no exceptions will be implemented. Whether ICE will be reasonable and assess circumstances on a case-by-case basis is yet to be seen.

Remember that any employees who were onboarded virtually must report for in-person verification once the employer’s normal operations resume (which may be earlier than December 31, 2020) or once the employee is physically present at the work location, whichever is earlier.

If the company does not seem to be eligible for the flexibility, an employer may continue to designate authorized representatives to act on their behalf to conduct in-person review of documents.

With companies in often changing and various stages of returning to workplaces, Jackson Lewis attorneys are available to assist you in determining how the rules apply to your particular circumstances.

Federal District Judge Nicolas G. Garaufis struck down the Administration’s most recent attempt to limit the Deferred Action of Childhood Arrivals (DACA) program. He held that the Acting Secretary of Homeland Security, Chad Wolf, had not been properly appointed and therefore, his recent rollback of DACA was invalid. Rules regarding appointment and succession are meant to ensure continuity of leadership but the Trump Administration has tried to circumvent those rules to place particular candidates at the top of DHS without following the normal Senate confirmation process.

The court’s objection to those actions has set the stage for close to a million people across the country to benefit or continue to benefit from DACA protections while they await the arrival of the next administration. Joe Biden has said that one of his first acts would be to reinstate DACA.

The backdrop of the recent federal court decision is dramatic. The U.S. Supreme Court ruled in June 2020 that the Administration had not properly terminated DACA, leading many (including DACA recipients themselves) to believe that DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Although the Supreme Court decision left the door open to the Administration to terminate DACA through proper administrative processes, the belief was that everything would revert to the “status quo ante” in the meantime. But the Administration saw the Supreme Court opinion differently. On July 28, 2020, Acting Director Wolf issued a memo explaining that the Administration would be reviewing DACA to possibly take the steps to terminate it (per the Supreme Court decision), but until that could occur, DACA would be restricted as follows:

  • DHS would not accept applications for initial DACA applications.
  • Renewals of DACA for current beneficiaries would be limited to one year, rather than the usual two years.
  • Advance Parole would be issued only for urgent humanitarian reasons or for the sake of a significant public benefit.

In response to the suit challenging the July 28th Wolf memo, Judge Garaufis said that, despite the Administration’s various tangled attempts to appoint and reappoint Chad Wolf properly, none of those attempts served to correct the problem. He wished “the government well in trying to find its way out of [its] self-made thicket.”

The ruling was not unanticipated because many other cases have raised the issue, including cases challenging new asylum rules, new USCIS fees, the new public charge rule, and new rules regarding H-1B visas, and judges have been open to the argument. DHS is likely to appeal the ruling because the validity of DHS appointments will continue to thwart and undercut the Administration’s last-minute regulatory efforts.

Jackson Lewis attorneys will provide updates as they become available.

For employers in the life sciences industry, please note our upcoming webinar on December 2, 2020, 1:00-2:00 p.m. EST. A description of the subject matter and registration details can be found here.

The Department of Homeland Security (DHS) has announced the arrest of 15 individuals who claimed to work on Optional Practical Training (OPT) for nonexistent companies.  In addition, USCIS notified 700 OPT recipients suspected of being complicit in similar activities that it would revoke their employment authorization.  Further, USCIS notified an additional 400 OPT recipients that they would not be allowed to renew their work authorization because they are allegedly working in positions unrelated to their fields of study.

Approximately 223,000 students participate in OPT programs.  Until relatively recently, the United States always has been a popular destination for foreign students.  However, the Administration has enacted restrictions and scrutinized key programs that have done just the opposite.  As a result, the United States’ share of foreign students is dropping.

Since 2017, in addition to increased scrutiny of immigrant and nonimmigrant filings across the board, the Administration has instituted targeted policies and proposed rules that have created much uncertainty and anxiety among both current and potential foreign students. This includes restrictions such as the 2017 Travel Bans, enacting policies making it more difficult for students to travel, preventing new students from coming to study at universities that have gone fully remote due to COVID-19, and the proposed new rule that would make it more costly and more difficult for students to remain in the United States throughout the duration of their academic programs.

Beyond these rules and proposals, the Administration has continuously expressed skepticism and concerns about the OPT program, which allows students to remain for a limited period of time to train by working in their field of study.  Most analysts have seen OPT as a plus, as international students contribute over $40 billion to the economy yearly.  However, while OPT has been a big draw for foreign students who wish to train in the United States to pursue their professions, the Administration has viewed the program in a negative light, claiming it potentially enables employers to hire lower wage foreign workers at the expense of U.S. talent.

As a result, in 2019, DHS announced it would perform OPT requirement compliance checks by increasing inspections at worksites of companies employing students using STEM OPT.  Then, in January 2020, the Counterterrorism and Criminal Exploitation Unit of DHS commenced Operation OPTical Illusion (OOI), which targeted nonimmigrant students potentially involved in fraud with regard to OPT.  This came to a head on October 21, 2020 with the arrest of 15 individuals.

At the time, the Acting Director of DHS, Ken Cuccinelli, warned that this was only a first step and that DHS will also target Designated Student Officials (DSOs) at universities who enable such activities through the Office of the Inspector General (OIG).  DSOs advise foreign students and communicate their status, work authorization, and other information to U.S. Immigration and Customs Enforcement (ICE) primarily through SEVIS (Student Exchange Visitor Information System), the database program that manages and tracks foreign students while they are in the United States.  Esther D. Brimmer, the Executive Director and CEO of NAFSA: Association of International Educators, noted that it is “reckless” to threaten and scapegoat DSOs for economic problems that are not even related to OPT particularly, because “[i]t is not the responsibility of DSOs to investigate international students’ OPT employers.”

If you have any questions about Operation OPTical Illusion or any other foreign student-related matters, Jackson Lewis attorneys are available to assist you.

 

The U.S. Seventh Circuit Court of Appeals issued an administrative stay a day after a federal district court held the Public Charge Rule violated the Administration Procedures Act (APA)  and issued summary judgment in favor of the plaintiffs. 

During October 2020, thousands of Adjustment of Status (AOS) applications were filed by individuals and law firms around the country following the U.S. Citizenship and Immigration Service’s (USCIS) September announcement that for the month of October it would use the Department of State’s Dates for Filing Chart instead of the usual Final Action Dates Chart. This allowed individuals who previously could not file AOS applications because their priority dates were not current to file. Most of the filings had to include a new form, the USCIS’s Form 944, Declaration of Self-Sufficiency Form 944 was introduced as part of the Administration’s new Public Charge Rule and requires applicants to demonstrate they are not inadmissible on the public charge ground. Form 944 and the Public Charge Rule had been subject to an injunction, but the U.S. Supreme Court stayed that injunction in January 2020.

Form 944 is 18 pages long and includes questions about household income, assets, resources and financial status. Each family member must list their assets and resources, liabilities and debts, credit score and report, information about health insurance, any use of public benefits, and all education and skills. Each data point must be fully documented with attachments. Some of these filings included more than 150 pages of documentation per individual applicant.

In Cook County, Judge Gary Feinerman held that the Public Charge Rule violated the APA because the Rule exceeded DHS authority, is not in accordance with law, and is arbitrary and capricious. Accordingly, the court vacated the rule nationwide. Drawing support for the nationwide vacatur from precedent, the judge wrote: “What would it mean to ‘vacate’ a rule as to some but not other members of the public? What would appear in the Code of Federal Regulations?” Judge Feinerman refused to stay his decision pending appeal.

DHS has yet to issue guidance regarding these rulings, but it appears that the Form 944 must once again be used — at least for now.

Jackson Lewis attorneys will monitor the situation and provide updates as they become available.

U.S. Immigration and Customs Enforcement (ICE) has been flexible about how to complete Form I-9 employment verification due to the COVID-19 pandemic, allowing companies working remotely to inspect documents virtually (e.g., over video link, fax, or email) since March 2020. The period of flexibility has been extended over and over and is now scheduled to end on November 19, 2020 – although it may very well be extended again.

DHS has explained that the flexibility is in place until the company returned to “normal operations,” after which documents that were examined remotely would have to be examined “in person” within three business days. This requirement did not clearly explain what constitutes a  return to “normal operations.” For example, if some employees  returned to the office, but not others, was that “normal operations”? If some essential employees were on site, but the human resources staff who generally examined I-9 documents were still working remotely, was that a return to “normal operations”? Indeed, if some employees were on site, was the employer entitled to use “flexibility” at all? ICE has indicated that these sorts of questions would be reviewed on a case-by-case basis. The hope has been that ICE would be reasonable given the circumstances.

At the end of October, DHS offered additional guidance and more clarity. In a guidance document, it said:

  • An employee’s documents must be verified in-person within three business days of that employee physically returning to the workplace.
  • ICE will not require employers to mandate that newly hired employees report to work in advance of any phased reopening procedure established by the company or state and local authorities merely for the purpose of verification.
  • Once the employee is physically present at a work location, no exceptions are being implemented for in-person verification.

This means that as long as flexibility remains in place, if employees are returning to the worksite in phased fashion, reverifications will be conducted in a phased fashion. But if the individuals who generally conduct I-9 verifications are not at the worksite, verifications will still have to be done within three business days, since no exceptions are allowed.

In FAQs, the DHS also clarified what to do about lost or expired documents:

  • If the documents that were valid when originally presented are no longer valid at the time of “in-person” verification, no additional documentation is required.
  • If the documents that were originally presented are lost or unavailable, the employee should fill out a new Form I-9 and present any relevant combination of List A, B, or C documents. The remote hire date should be used on the new form and the new I-9 should be attached to the old I-9 with a note indicating the original documents were unavailable at the time of verification.

ICE also has indicated that if the employee who conducted the virtual inspection is no longer available, the employee conducting the in-person verification should complete a new second page (Section 2), attach that to the old I-9, and sign the verification.

Jackson Lewis attorneys are available to answer any questions and advise on the complex web of I-9 requirements, including the interaction with E-Verify.