ICE has announced that its flexibility regarding the physical presence requirements for I-9 inspection will be extended for another 30 days, until June 18, 2020 due to continued COVID-19 precautions. The terms and details of this flexibility remain the same.

Basically, eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email). Once normal operations resume, all employees who were onboarded remotely must report to their employer within three business days for in-person verification.

This flexibility applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no flexibility is being implemented. ICE has said, however, that DHS will evaluate on a case-by-case basis situations where newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols. Where the new flexibility may not apply, employers may continue to designate authorized representatives to act on their behalf to review documents in person.

ICE is also granting an additional 30 days to the original 60-day extension of time to respond to Notices of Inspection (NOIs) that were issued in March 2020.

ICE notes that employers are required to monitor DHS and ICE websites for additional updates on when extensions will terminate and normal operations resume.

If you have any questions about Form I-9 Employment Verification and E-Verify requirements, especially changes during the COVID-19 pandemic, Jackson Lewis attorneys are available to assist.

On May 11, 2020, the IRS issued guidance about how to return an Economic Impact Payment (EIP), also known as a COVID-19 stimulus payment. Ineligible individuals who receive EIPs are required to return them.

Resident and Nonresident Alien EIP Eligibility

The IRS guidance indicates that:

  • A person who is a nonresident alien in 2020 is not eligible for the EIP.
  • A person who is a qualifying resident alien with a valid SSN is eligible for the EIP only if the person is a qualifying resident alien in 2020 and could not be claimed as a dependent of another taxpayer for 2020.

Aliens who received an EIP, but are not eligible, should return the EIP to the IRS.

The IRS guidance in Q41 sets out details about how and where to return an erroneous payment depending on whether an individual received a paper check or direct deposit payment and where the individual lives.

One way a person can be a resident alien is if they satisfy the IRS substantial presence test. The substantial presence test is based on a calculation of the number of days that an individual has been physically present in the U.S. The calculation formula is very specific, but most nonimmigrants who have been in the United States for at least half of 2020 will be considered resident aliens in 2020 for tax purposes. However, there are individuals whose days in the U.S. in certain visa categories do not count toward the calculation. That includes some students on a F visa. Generally, foreign students on F visas in nonimmigrant status who have been in the United States fewer than five calendar years remain nonresident aliens and are exempt from social security/Medicare taxes.

While the above sets out general outlines regarding resident aliens, EIPs, and the IRS Code, the regulations are very detailed. Before taking any action, you should reach out to counsel to determine what, if any steps, should be taken.

 

The persistent problem of undocumented workers presenting plausible (but ultimately fraudulent) employment verification documents to employers has taken a new twist in the COVID-19 pandemic: a rise in imposter claims for unemployment insurance.

Imposter claims are a type of identity theft; someone uses someone else’s personal information, including Social Security numbers, to collect unemployment compensation. COVID-19 payments are higher than regular unemployment payments and presents more of an incentive for imposter fraud – and states are experiencing more of it. Rhode Island has reported 2,000 such claims. Oklahoma has seen a steep rise. And these are likely just the tip of the iceberg.

Imposter fraud can be discovered in several ways. Individuals who need to apply for unemployment find out that they cannot do so because someone else is already collecting under their Social Security number. Individuals might also be denied unemployment benefits because the state agency’s system sees that someone else is still working and being paid under that same Social Security number. Alternatively, employers may receive notices of claims for employees who have not been laid off. It is even possible that applicants denied unemployment could contact the employer of the imposter and thereby inform the employer of the fraud.

What should employers do if they become aware that an employee is a victim of imposter fraud?

But what if you receive information claiming that one of your employees is the “imposter”?

Employers are increasingly receiving phone calls and letters from individuals claiming that an employee is working with fraudulent documentation. Even so, employers should not take any precipitous action adversely affecting the employee’s job. The non-employee’s alarming claim may itself be false, mistaken, or part of a scam to get personal identifying information about one of your employees. Furthermore, the employee may not have intentionally provided incorrect information.

The best path before discussing the accusation with the employee is to first check the employment records.

  • Check the employee’s Form I-9 record. The Form I-9 may have errors on it that create a reason to ask the employee to update the documentation, which can then be checked. If the List A, B, or C documentation has been copied, legal counsel can assist you in examining the authenticity of the documentation.
  • Check payroll records and other company records to determine if there have been other complaints or indications that the claim has validity.

Ultimately, the decision about how to proceed will be based on all the specific facts and circumstances regarding the employee and your company’s history regarding employment verification issues. It is important to make an individualized decision and proceed cautiously to avoid violating document abuse or discrimination restrictions or creating a potential discrimination claim by the employee.

Jackson Lewis attorneys are available to help you determine the best course of action.

 

It has been five years since Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs challenged the Obama Administration’s authority to enact the H-4 EAD Rule. In the years since that filing, the case has gone back and forth between the D.C. District Court and the U.S. Court of Appeals for the D.C. Circuit. The Trump Administration (which did not really want to defend the rule) requested more than six “pauses” in the litigation based on its assertions (starting in 2017) that a new rule rescinding H-4 EADs would soon be published. That new rule has been stuck in the Office of Budget Management (OMB) review process for more than a year, but it remains on the DHS Regulatory Agenda with an expected spring 2020 publication date.

So, DHS’s opposition to a motion for an injunction that would have stopped the agency from issuing or renewing H-4 EADs appeared to be an about face. It is possible OMB is telling the Administration the Rule does not make sense from an economic standpoint – even during high unemployment and the Administration’s other ongoing efforts to limit immigration. But the Trump Administration may have something else in mind.

In its brief opposing the injunction, DHS argued the elements for granting an injunction had not been met. The brief stated:

  • There is no showing of irreparable harm because Save Jobs’ supporting affidavit says nothing about the present job market or threat of impending economic harm;
  • There is no showing of a likelihood of success on the merits because the court had indicated it “’would likely conclude that DHS’s interpretation of its authority under the INA is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority.’”
  • The balance of harms and public interest prongs are not met because “[i]njunctions to the enforcement of such regulations ‘severely undermine . . . USCIS’s authority to make regulatory determination about the issuance of [employment-based] visas’”; and
  • There is a negative consequence where the court is being asked to “substitute its judgment for that of the appropriate agency.”

In order to enact more restrictions on immigration and work authorization, the Administration may want to ultimately argue that:

  • The H-4 Rule is a valid exercise of rulemaking authority, because it wants its new rule (rescinding H-4 EADs) to be a valid exercise of rulemaking authority;
  • USCIS has the authority to make regulatory determinations about visas;
  • Courts should not substitute their judgment for that of the agency; and
  • In these times of COVID-19, the current economic picture must be kept in view.

The Trump Administration’s strategy remains to be seen, but Jackson Lewis will continue to follow this case and provide updates as they become available.

The Department of Homeland Security announced that on May 14, 2020, a new temporary rule will go into effect giving employers in the food processing industry more flexibility to hire H-2B workers who are essential to maintaining the food supply chain.

Work essential to the food supply chain includes, but is not limited to, work related to:

  • Processing, manufacturing, and packaging of human and animal food;
  • Transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and
  • Selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

Recognizing the need to keep the food supply operating, DHS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers.

Until at least September 11, 2020:

  • Workers in the U.S. in valid H-2B status may start working for new employers while the new employers’ petitions are pending with USCIS;
  • The temporary employment authorization will last for up to 60 days or until the start date of the petition, whichever is later;
  • The employer must attest that the work performed will be temporary and essential to the U.S. food supply chain; and
  • The Department of Labor must have acknowledged receipt of a labor certification from the employer for the position.

The new rule will also allow H-2B workers who are essential to the U.S. food supply chain to work and stay in the U.S. beyond the usual three-year time limit. Without this dispensation, H-2B workers would have to leave the U.S. for at least three months before returning.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily in the tourist, hospitality, landscaping, and construction industries. Early in 2020, demand for H-2B visas was very high. The 33,000 visas available for the spring/summer period ran out as soon as they became available. Congress authorized DHS to make more H-2B visas available, but in April, DHS announced that extra H-2B visas had been put on hold because of skyrocketing unemployment claims in the U.S. due to the COVID-19 pandemic. Given the Administration’s growing concern about the U.S. food supply chain, flexibility has become necessary.

Please contact your Jackson Lewis attorney if you have questions about how the new rule will apply.

 

Just before midnight on April 23, 2020, President Donald Trump’s “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” went into effect. The proclamation’s purpose was to temporarily suspend the entry of new immigrants (green card holders) into the United States for 60 days, until June 23, 2020. Because U.S. Embassies and Consulates abroad have been closed for routine visa processing since March 20, 2020, the proclamation did not immediately change the current situation. Unlike the consular closures, the April 23rd proclamation was not issued to prevent the spread of COVID-19; it was issued to restrict immigration because of high unemployment in the United States due to states’ stay-at-home orders.

The 60-day mark is far from the only important date in the proclamation. By the 30-day mark, May 22, 2020, the President will decide whether to take “other measures” regarding nonimmigrant visas to stimulate the economy and prioritize the hiring of U.S. workers. By the 50-day mark, a decision will be made about whether to continue the immigrant visa suspension beyond 60 days. It is the specter of these unknown “other measures” that has created concern on the part of employers and temporary visa holders themselves.

On May 7, 2020, four senators, Tom Cotton (R-Ark.), Ted Cruz (R-Tex.), Charles Grassley (R-Iowa), and John Hawley (R-Mo.) fleshed out the possibilities in a letter to President Trump urging him to “suspend all new guest worker visas for sixty days, and to suspend certain categories of new guest worker visas for at least the next year, or until unemployment has returned to normal levels.” The categories the senators would like to see suspended for a year include H-2B visas for nonagricultural seasonal workers, H-1B visas for specialty occupation workers, and the Optional Practical Training Program (OPT) used by foreign students after graduation. Their stated purpose is to “limit the importation of unnecessary guest workers while American families and businesses get back on their feet.”

But many disagree with the senators’ assumption that limiting immigration will help the economy and U.S. workers. Indeed, there is some contrary economic theory, data, and statistics, including the following:

Given the current climate, these issues will undoubtedly remain hotly contested as the May 22, 2020, 30-day mark approaches. Jackson Lewis attorneys will provide updates as they become available.

On April 20, 2020, Chad Wolf, Acting Secretary of the Department of Homeland Security (DHS), announced that the previously announced travel restrictions on the Northern and Southern U.S. borders would be continued for another 30 days until May 20, 2020. In March, DHS had announced that due to the COVID-19 crisis, individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until April 20, 2020.

For more information on these restrictions, please click here.

COVID-19 has changed U.S. passport renewal.  In the past, U.S. citizens could renew a passport by mail if their current passport was issued on or after their sixteenth birthday and within the last 15 years, or apply for an initial passport or renew in person at a Passport Acceptance Facility (including many local post offices) and expect to receive their new passports within six to eight weeks.  There were even ways to expedite the processing if the passport was needed more quickly.

But now, passport operations are extremely limited and if you apply or renew (or if you applied prior to March 19, 2020) you will likely experience significant delays of several months before you receive your U.S. passport and have your citizenship evidence documents returned (even if you requested expedited processing).  It is not even possible to check on the status or your previously filed application as that information is not being updated until regular passport services resume.

The passport service is asking that individuals wait to apply for passports until normal operations are resumed, unless there is a life-or-death emergency.  If that is the case, below are the steps to take.

  • You must need to travel within 72 hours due to a life-or-death emergency which is a serious illness, injury, or death in your immediate family, including parents, children, spouses, siblings, aunts, uncles, etc.
  • You must provide a passport application with supporting documents including proof of the life-or-death emergency such as a death certificate, mortuary statement, or signed letter from a medical facility.
  • Proof of life-or-death emergency documents must be in English or translated into English.
  • Proof of international travel for the emergency is also required.  This includes documentation such as a reservation, ticket or itinerary.
  • To make an appointment for an emergency passport, the you must call the National Passport Information Center at 1-877-487-2778 (1-888-874-7793 TDD/TTY), Monday through Friday, 8:00 am to 5:00 pm Eastern Time. Outside of those hours, call 202-647-4000.  At this time, some passport agencies are completely closed to the public.

If you are considering international travel, keep in mind that some countries require that you have a passport that is valid for six months beyond the proposed travel dates and may also require that you have several blank pages left in your passport.  It is also recommended to check the Department of State and Center for Disease Control websites for travel advisories.  You should also plan to check on travel restrictions that may have been instituted in the country or countries you are hoping to visit.

The updated M-274, Handbook for Employers: Guidance for Completing Form I-9, from USCIS offers some interesting substantive clarifications and developments.

Changes to match the most recent Form I-9 revisions include:

  1. Section 2.0 clarifies that any person can serve as an authorized representative of the employer to complete, update, or make corrections to Section 2 or Section 3 of the Form I-9, but that the employer will remain liable for any violations. This clarification is particularly timely given the number of companies that are working remotely due to the COVID-19 pandemic and the stay-at-home orders in response. Outside of the M-274 context, ICE had temporarily given companies the flexibility to conduct the I-9 process to accommodate work-from-home or remote-work situations.
  2. Section 12.0 explains that the List B “ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address” is not the same as a List B driver’s license.
  3. Section 12.0 clarifies that List C employment authorization documents issued by the Department of Homeland Security are not the same as the List A Form I-766, Employment Authorization Document, that demonstrates both identity and work authorization.

Changes in the Guidance include:

  1. Sections 4.4 and 6.4.2 clarify that employers should enter automatic extensions of documents in the “Additional Information” field in Section 2, instead of crossing out and initialing the date listed in the “Alien authorized to work until” field of Section 1. USCIS believes this will be a more legible way of handling the issue for audit purposes.
  2. Section 6.4.2 notes that for cap-gap extension situations, employers should enter the receipt number from the Form I-797C, Notice of Action, as the Document Number in Section 2. Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, is no longer required.

The USCIS new explanations include:

  1. Section 4.4 explains how to complete Form I-9 with EADs automatically extended by Federal Register notices, such as TPS automatic extensions.
  2. Section 6.2 supplies guidance regarding Native Americans born in Canada.
  3. Section 7.1 explains specific rules that apply when an employee is referred from a state employment agency or a state workforce agency.

Other clarifications include:

  1. Section 3.0 explains how to complete the Preparer/Translator Supplement whether using the paper form or a computerized form.
  2. Section 6.4.2 explains what is required and how to fill in the “Alien authorized to work until” expiration date in Section 1 for a cap-gap employee. The date in Section 1 should be September 30 of the year the change of status was filed.
  3. Sections 9.0-9.2 clarify retention and electronic Form I-9 requirements.
  4. Section 10 reviews prohibited practices and penalties.

Jackson Lewis attorneys are available to assist you with any I-9, E-Verify, or other compliance issues, including temporary policy changes related to COVID-19.

 

Due to COVID-19, USCIS field offices have been closed for in-person services since March 18, 2020.  The closure will continue until on or about June 4, 2020 when USCIS hopes to re-open to the public.  In preparation for re-opening:

  • USCIS will send notices to applicants and petitioners with naturalization ceremonies or scheduled appointments that are affected by the temporary closure;
  • Asylum offices will send cancellation notices, automatically reschedule interviews and send new interview notices;
  • Once in-person operations resume, USCIS will automatically reschedule by mail cancelled Application Service Center (ASC) appointments such as biometrics appointments; and
  • Those with cancelled InfoPass or other appointments at the field offices must proactively reschedule those appointments through the USCIS Contact Center once the offices re-open.

USCIS has suggested that before calling the USCIS Contact Center, applicants or petitioners should check whether their local office has re-opened by visiting www.uscis.gov/about-us/uscis-office-closings.