The Department of Homeland Security (DHS) announced flexibility regarding Employment Verification (Form I-9) regulations due to COVID-19.

Recognizing that companies and organizations are having to temporarily shift to a remote working basis, DHS is allowing employers to inspect Section 2 documents remotely (e.g., over video link, fax or email, and so on) and to obtain, inspect, and retain copies (rather than originals) of those documents until normal business operations resume. This policy will remain in effect for 60 days, until May 18, 2020, or until three business days after termination of the National Emergency, whichever comes first. This timeframe could be extended by the government in a future announcement, if necessary.

Eligibility

  • Only applies to employers and workplaces operating remotely.
  • If HR is remote or inaccessible to employees, physical proximity restrictions apply, or newly hired employees or existing employees are subject to quarantine or lockdowns, this option may be available on a case-by-case basis.
  • Employers may still rely on using authorized representatives to act on their behalf to complete Section 2. The authorized representative may be any person. Employers must keep in mind they remain liable for any violations committed by an authorized representative.

Specifics

  • The three-day rule still applies — employers must conduct the remote inspections within three business days of the start date and retain the documentation provided.
  • Employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field.
  • Employers using E-Verify should submit cases within three business days of the remote inspection.
  • Once normal business operations resume, employees onboarded remotely must report within three business days for in-person verification.
  • Once documents have been physically inspected, employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field or to Section 3, as appropriate. If the original certifier is not available for the physical re-examination, a new Section 2 should be completed and signed by the employer.
  • Employers who use the remote option must provide written documentation of their remote onboarding and telework policy for each employee. The burden is on the employer to document that the remote option was necessary.
  • Employees will have a choice as to documentation presented under List A, B, and C for the in-person re-verification — it does not need to be the same documentation that was provided virtually.
  • Employees with documentation that expires prior to the physical re-examination will need to provide unexpired documentation that would be re-verified in Section 3.

Jackson Lewis attorneys are available to assist you during this time in implementing new strategies and policies regarding I-9 compliance and dealing with other evolving immigration concerns. We will continue to provide updates as they become available.

 

 

Several Presidential Proclamations suspending travel to the U.S. from abroad due to the outbreak of the Coronavirus (COVID-19) have been issued since January 31, 2020, each building upon the last. Now, restrictions on those traveling from the United Kingdom and Ireland have been added, according to the most recent proclamation, which outlines the short history of these proclamations and expands the restrictions.

By midnight EDT on March 16, 2020 (4:00 a.m. GMT on March 17), foreign nationals who are not yet in the air who have been in the United Kingdom or Ireland during the preceding 14 days will not be allowed to enter the U.S. The United Kingdom and Ireland joins the list of other restricted countries: China, Iran, and the 26 countries Schengen area countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

The goal is to prevent all excluded individuals from boarding aircraft, but covered individuals who arrive in the U.S. will be turned back. This includes individuals travelling under the visa waiver program pursuant to ESTA. Anyone subject to the proclamations who attempts to travel with ESTA will have their ESTA cancelled. Anyone who fraudulently or willfully attempts to circumvent these restrictions will be subject to removal. Air carriers also may be subject to fines for each banned individual they bring to the U.S.

These proclamations do not prevent U.S. citizens, legal permanent residents (“Green Card” holders), or close family members of U.S. citizens or legal permanent residents from entering the United States. Other exempted individuals include air or sea crew members, members of the U.S. Armed Forces and their family members, and certain types of foreign government officials. There are also some general exemptions for those whose entry would be in the national interest or whose entry does not pose a significant risk of spreading the virus. Individuals who enter under these exemptions will be subject to enhanced screening at 13 currently designated airports.

These restrictions will prevent:

  • Newly hired foreign nationals living abroad from coming to the U.S. to start employment; and
  • Foreign nationals living and working in the U.S. from travelling abroad and returning – even in emergency situations or to consular process.

We do not know how long these circumstances will last. The restrictions will remain in effect “until terminated” by President Donald Trump. To discuss questions regarding current hiring strategies and travel issues, please reach out to your Jackson Lewis attorney.

 

As employers respond to workplace issues pertaining to COVID-19 (Coronavirus), it is important not to forget about foreign nationals working pursuant to temporary non-immigrant visas. Employers must avoid discriminatory policies and remember that there are additional rules and regulations that apply to employees on visas.

Here are a few things to keep in mind:

  • Working Remotely – If a foreign national on an H-1B visa starts working remotely, the remote location was not on the original H-1B visa, and the remote work will continue for more than 30 days, a Labor Condition Application (LCA) posting or a new LCA and an amended petition may be required.
  • Material Changes in Terms and Conditions of Employment – Generally, foreign nationals working on temporary visas are expected to be working in the geographic locations in their visa petitions. Whether USCIS should be notified about a change in location depends on the type of visa and whether the change would be considered a “material” change in the terms and conditions of employment.
  • Changes in Pay – Other “material” changes that might have to be reported could include changes in pay,e., as triggered by moving from full-time to part-time employment. This would be particularly significant for those in H-1B status. If H-1B workers are not being paid the salary in the LCA filed with their H-1B petitions, employers can be found liable and be obligated to provide back pay.
  • Out of Status – Individuals on nonimmigrant visas (including students on OPT or STEM OPT) can find themselves “out of status” if there is a company shutdown and they are not working and not being paid. If a foreign national is out of status, the individual must change to another status or leave the country. For personal reasons or due to the COVID-19 outbreak, it may not be feasible or safe for them to return to their home countries.
  • Students and Exchange Visitors – Students on F-1 visas can fall out of status if they are taking all “online” courses during a campus shutdown. DHS has reported that it is prepared to be flexible. The Department of State has indicated that it is prepared to be flexible with individuals working in J-1 status as exchange visitors who cannot leave the United States at the conclusion of their programs.
  • Form I-9 and E-Verify – All employers must decide how they will handle Form I-9 and E-Verify obligations during a company shutdown or when individuals are working remotely. Under USCIS and ICE policies, this may mean establishing a process and designating “agents” to review forms and fill in Section 2 of the Form I-9.
  • COVID-19 Travel Bans – For now, because foreign nationals from many countries are banned from entering the United States, employers may want to reconsider hiring approaches. The banned countries include China, Iran, and the 26 Schengen countries – Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. On March 13, 2020, President Donald Trump noted that other countries, such as the United Kingdom, may be added to this list and some countries already on the list may be removed.
  • Cancellation of Consular Operations – There have been recent reports and news of various U.S. Consulates closing and/or cancelling immigrant and nonimmigrant visa appointments, and that trend may well continue. Employers and employees should be mindful of the availability of visa services at consular locations, check consular websites frequently, and plan accordingly.

Jackson Lewis has a COVID-19 Task Force and we are ready to assist you in developing plans and strategies for your workplaces, including policies related to foreign national employees working on temporary visas.

On the same day the Public Charge Rule went into effect (February 24, 2020), immigrant advocates held a teach-in at Boston City Hall to try to lessen the uncertainty and fear that has been spreading through immigrant communities.

The Administration has stated that the Public Charge “[R]ule will protect hardworking American taxpayers, safeguard welfare programs for truly needy Americans, reduce the federal deficit, and re-establish the fundamental legal principle that newcomers to our society should be financially self-sufficient and not dependent on the largess of United States taxpayers.” However, immigration advocates view the rule as “penalizing poverty” and taking the chance to become self-sufficient away from immigrants, a group of individuals who historically has been an important part of our country and our economy.

Previously, this rule primarily affected those who accepted cash welfare benefits. However, the new rule makes admission to the U.S. more difficult for low-income immigrants and non-immigrants who use other, non-cash welfare benefits. The Department of Homeland Security (DHS) has said that the public charge rule is meant to determine whether a person is likely to use of certain government benefits in the future. To make that determination, officers will review the totality of the circumstances, including an applicant’s income, age, health, family status, assets, credit scores, liabilities, education, and skills (including English language), visa classification sought, and receipt of public benefits. Some factors serve as “negative” factors, others as “positive” factors.

Receipt of certain public benefits for more than 12 months within any 36-month period (following February 24, 2020) definitely is a negative factor (unless the individual was in the military at the time of receipt or is a U.S. citizen child of an applicant). These public benefits include:

  • Supplementary Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state, or local cash benefit programs for income maintenance
  • Supplemental Nutrition Assistance Program (SNAP, a.k.a., “food stamps”)
  • Housing Choice Voucher Program (Section 8)
  • Project-Based Rental Assistance
  • Medicaid (with certain exceptions, including for emergency medical conditions, for aliens under 21, or women during pregnancy)
  • Subsidized Public Housing (Section 9)

Other heavily weighted negative factors include:

  • Applicant is not a full-time student and, despite work authorization, has no current employment, recent employment history, or reasonable prospect of employment;
  • Applicant has a diagnosed medical condition that likely will require extensive medical treatment or institutionalization and has no financial resources to pay for this; or
  • Applicant previously was found inadmissible on public charge grounds.

Heavily weighted positive factors include:

  • Household income, assets, resources, or support from a sponsor of at least 250 percent of the Federal Poverty Guidelines ($65,500 for a family of four);
  • History of employment in the U.S. with an annual income of at least 250 percent of the Federal Poverty Guidelines; or
  • Applicant has private health insurance for use in the U.S. that will cover the period the applicant is expected to remain in the U.S.

If subject to the public charge test, applicants for adjustment of status or others applying for immigrant or nonimmigrant visas may need to provide a significant amount of financial data on either Form I-944, Declaration of Self Sufficiency, or Form DS-5540, Public Charge Questionnaire.

These groups of individuals will not be subject to the public charge test:

Jackson Lewis attorneys are prepared to assist in navigating the new rule, determining whether these forms must be completed, and how best to present your case.

Please see our legal update on the Supreme Court’s decision that federal law does not preempt a state’s ability to bring criminal prosecutions against individuals for providing false or fraudulent information in connection with their employment.

President Donald Trump and his senior advisor, Jared Kushner, are continuing to try to build a coalition for immigration reform. They reportedly are trying to decide whether to move forward before November’s election.

Kushner first presented the 600-page comprehensive plan almost a year ago (lacking much in terms of publicly released details), but the President reportedly is still dealing with opposition — even among his advisors. Kushner wants a bill that will be “‘pro-labor, pro-worker’ while keep[ing] the immigration numbers status quo.” Yet, according to White House Chief of Staff Mick Mulvaney, the United States “needs more immigrants for the U.S. economy to continue growing.”

Kushner has met with groups on all sides of the issue, from those who want to reduce the number of immigrants to those in business and other advocates who want to increase the numbers. Mulvaney sees “immigration as a major engine for the U.S. economy.” He also sees Canada and Australia’s point-based systems as good models for the U.S. Trump advisor Stephen Miller has been the architect behind policies blocking and limiting the entry of immigrants — both legal and illegal.

President Trump seems to move from one side to another. In 2017, he focused on “Buy American, Hire American” in order to protect the U.S. workforce. Then, during last year’s State of the Union speech, the President said, “I want people to come into our country in the largest numbers ever, but they have to come in legally.” This year, the President spoke about problems in sanctuary cities and crimes committed by immigrants. In early 2019, the President said he wanted to give citizenship to high-skilled workers, but his Administration’s policies continue to make it more and more difficult for such workers to come to or remain in the U.S. Yet, in a 2020 interview with Fox News, President Trump asserted, “We have to allow smart people to stay in our country.“ When pressed on the topic of whether American college and university graduates should be the ones taking jobs at high-tech companies, he responded, “We don’t have enough of them. And we have to be competitive with the rest of the world too.”

Initiatives that have been floated include:

  • Creating new categories of year-round temporary worker visas for industries like construction and agriculture and lengthening those stays
  • Continuing to raise the caps on H-2B visas
  • Granting permanent status to high-skilled workers while reducing the numbers of family-based immigrants, i.e., introducing a merit-based system for those with English-speaking ability and an offer of employment
  • Increasing federal use of E-Verify, but stopping short of making it mandatory for all businesses to use

Some of these proposals might make it into law if they could be addressed as single issues. Whether any aspects of the immigration reform plan become legislation will likely depend on the upcoming political landscape and how the U.S. Supreme Court rules on DACA this summer.

Long lines could be seen outside and around New York Department of Motor Vehicles offices as undocumented immigrants waited anxiously for hours in long queues to obtain driver’s licenses. Since 2013, a growing number of states have been issuing driver’s licenses in one form or another to undocumented workers. New York and New Jersey are just joining the list that includes California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Oregon, Nevada, Utah, Vermont, Washington and the District of Columbia. And the trend is continuing in other states.

But with the passage of the New York “Green Light” bill, the Trump Administration has decided to conduct “a departmentwide study of the effects of issuing state driver’s licenses to undocumented immigrants.” A DHS spokeswoman said the study (and possible litigation) is about national security, because these laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Most of the states that are issuing “driving only” licenses have large populations of undocumented immigrants. Granting driver’s licenses obviously makes life much easier for undocumented immigrants, but state legislators believe it also contributes to local economies. Undocumented immigrants will buy more cars, more insurance, and more gasoline and will pay more license-related fees. Because undocumented immigrants will have to still pass all required driving tests, states also believe that licensing these individuals yields safer drivers.

Driver’s licenses issued to undocumented immigrants will not be REAL ID compliant. The REAL ID law which will go into full effect on October 1, 2020, establishes security standards for the issuance of driver’s licenses and other identification that are needed to enter federal facilities, nuclear power plants and to board airlines – even for domestic flights. In order to obtain a REAL ID compliant driver’s license, an individual must, among other things, be legally in the country. Under the REAL ID regulations, states may continue to issue licenses that are not REAL ID compliant but those must be marked prominently with annotations such as “not for federal identification purposes” or “driving only.” Despite that, under current guidelines, licenses so marked should be accepted as List B documents for Form I-9 and E-Verify purposes if they meet the regulatory requirements — contain a photograph or information such as name, date of birth, gender, height, eye color, and address. However, as the REAL ID deadline approaches, employers need to keep apprised for further updates.

While undocumented workers in many states will be able to obtain driver’s licenses, some states continue to deny driver’s license renewals to foreign nationals who are legally in the United States in valid status and have valid work authorization but who are waiting for visa extension approval notices. Because of USCIS processing delays and because petition extensions cannot be filed more than six months in advance of expiration, many foreign nationals are forced to premium process cases in order to obtain the necessary documentation to timely renew driver’s licenses.

Jackson Lewis attorneys are available to assist you in advising employees regarding REAL ID and timely drivers’ license renewals.

 

U.S. Customs and Border Protection (CBP), an agency with more than 60,000 employees, now shares status with the likes of the FBI and the Secret Service.

CBP is designated as a “security agency,” according to a CBP staff memo on February 7, 2020, a move which allows the agency to shield information about personnel from the public. At a time when U.S. immigration agencies are becoming more aggressive enforcers and more of their actions are being challenged in court and in the media, transparency is being hindered.

Mark A. Morgan, Acting Commissioner of CBP, explained:

I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CBP employee data.

CBP’s main missions are border security, trade, and travel. According to its own Snapshot summary, CBP secures America’s borders by stopping inadmissible people and illicit goods, works to secure, safeguard, and facilitate imports, and welcomes international travelers and returning U.S. citizens. CBP currently employs:

  • 24,511 CBP officers
  • 2,465 agriculture specialists
  • 19,648 Border Patrol agents
  • 597 air interdiction agents (pilots)
  • 339 marine interdiction agents
  • 296 aviation enforcement agents
  • 979 trade personnel

CBP conducts operations in:

  • 52 countries
  • 328 ports of entry
  • 135 Border Patrol stations
  • 74 Air and Marine Operations locations

On a typical day, CBP processes more than a million people arriving to the U.S. CBP has broad discretion at the border to perform searches and determine whether foreign nationals are admissible to the U.S. or not.

Immigration attorneys are concerned that holding a “security agency” designation will limit accountability at the border. FOIA requests, one of the more effective means for gathering information about government actions and operations, will be less useful because CBP will have the authority to redact employees’ names, making it much harder to follow email trails and investigate possible illegal or irresponsible acts. For instance, when foreign national employees, students, and visitors are not permitted to enter the U.S., and are turned around on the next flight, it will be more difficult to determine the relevant details regarding the reasons such as the individuals involved, their intent, and where the decisions or policies originated.

Clark Pettig, Communications Director at American Oversight, said that this new designation “creates significant potential for abuse by an already secretive agency with a poor track record of public transparency.” CBP is an agency that “is at the center of some of this administration’s most troubled and troubling policies,” including actions at the southern border.

Jackson Lewis attorneys will continue to follow these developments.

Processing delays for immigration cases have increased by 46 percent in the past two fiscal years and 91 percent since FY 2014.

Businesses complain that they cannot obtain H-1B visas for key employees. Congress is looking into why these delays are taking place. In the meantime, foreign nationals become disenchanted and look for solutions in other, more welcoming countries.

The delays are not only hampering the IT industry (a primary consumer of H-1B visas), the healthcare industry is also suffering. Foreign medical students are delayed from starting fellowships and residencies in hospitals around the country and foreign doctors who are ready to practice in rural or underserved areas also are being delayed. Now, especially with a novel coronavirus brewing, healthcare workers are at a premium.

Federal agencies are preparing to protect the country from coronavirus (and other diseases) by:

  • Issuing guidances;
  • Developing diagnostic tests; and
  • Implementing screening.

One healthcare staffing company has sued Department of Homeland Security and U.S. Immigration and Citizenship Services, alleging the delays in issuing H-1Bs “is impairing [their] ability to effectively and efficiently meet the medical needs of individuals nationwide.” MedPro filed H-1B petitions for 156 laboratory medical technologists that have been pending with USCIS for close to a year now. The shortage of laboratory technicians has gone unnoticed, but it is real and affects everyone, because almost all healthcare decisions are based, at least in part, upon laboratory tests.

In its complaint filed in the U.S. District Court in D.C., MedPro asserts:

Our healthcare industry cannot serve its constituency—patients—without an adequate supply of highly skilled and qualified healthcare professionals. This is no more true than in times of health crisis, as we are experiencing now due to the threat of the coronavirus.

Processing delays at USCIS are not simply administrative annoyances, they have real world effects on businesses and families. The lack of healthcare professionals is an ongoing problem that is being exacerbated by continuing USCIS and visa processing delays.

New York Attorney General Letitia James is suing the U.S. Department of Homeland Security (DHS) in federal court (State of New York v. Wolf et al, 1:20-cv-01127) over its new policy prohibiting New Yorkers from registering or re-registering for various Trusted Traveler Programs.

New York residents were singled out by the Trump Administration in response to New York’s Green Light Law.  That law, which went into effect in December 2019, gave undocumented residents the right to apply for drivers’ licenses.  It also prevented the Department of Motor Vehicles (DMV) from releasing their database information to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) unless the agencies presented a court order.  Thirteen states have passed similar laws but so far only New York has been targeted for punishment.

The Trusted Traveler Programs include Global Entry, SENTRI, NEXUS and FAST (Free and Secure Trade).  The first three are programs that allow registered individuals who have been pre-vetted to return to and enter the United States more efficiently.  FAST provides expedited entry for low-risk commercial carriers.  Ken Cuccinelli of both USCIS and DHS expects that this ban will ultimately affect more than 200,000 New Yorkers.  Attorney General James stated the new policy “will negatively impact travelers, workers, commerce, and our economy . . .”

The Administration contends that the Green Light law makes it impossible for DHS to review information necessary to approve individuals for Trusted Traveler Programs.  Others, such as New York Governor Andrew Cuomo, question that explanation. Indeed, Governor Cuomo said that there is “no rational basis for this ban.” “Time and time again,” he said, “President Trump and his Washington enablers have gone out of their way to hurt New York and other blue states whenever they can as punishment for refusing to fall in line with their dangerous and divisive agenda.”

New Yorkers with currently valid Trusted Traveler status will be able to continue to use that status, but once expired, will not be able to renew.  As of this date, registration in TSA Pre-Check is not affected.