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The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have, once again, extended the I-9 flexibility that was set to expire December 31, 2020 for 30 more days. Following this extension, increased I-9 flexibility for remote workplaces will run through January 31, 2021.  

History of Increased I-9 Flexibility 

The DHS and ICE instituted increased I-9 flexibility on March 19, 2020, in response to the precautions employers and employees were taking because of COVID-19. This is the seventh time since the policy’s establishment that it has been extended—a process we have detailed extensively on our blawg: 

What is increased I-9 Flexibility?

Increased I-9 flexibility allows employers to verify an employee’s identity and authorization documents remotely using fax, email, or a video link. Employers have three business days to physically inspect the documents when “normal” operations resume.  

Who Qualifies?

It’s important to know that the increased flexibility only applies to employers and workplaces operating 100% remotely. There are relatively few exceptions for businesses with employees present at workplaces; however, the DHS will evaluate situations where employers or employees are subject to COVID-19 quarantine or lockdown protocols on a case-by-case basis. 

Looking Ahead 

It’s hard to predict the future of I-9 flexibility for remote employers, especially when you take into account that it has already been extended numerous times and COVID-19 cases are surging in the U.S., but it is reasonable to assume that the flexibility will be extended once again before January 31, 2021. The DHS and ICE advise employers to monitor their websites for the latest news about I-9 flexibility—particularly when it will be terminated.

GoffWilson

With a gray area around who qualifies, no clear end date, and a short window to bring documentation up to date when “normal” operations resume, it behooves employers to have a plan in place for I-9 compliance. GoffWilson solely practices immigration law and has assisted businesses of all sizes and types to develop strategies to remain I-9 compliant. If you have a question about what the latest extension means for your company, or any other I-9 or immigration questions, contact GoffWilson today! Immigration isn’t just what we do, it’s our passion.

The Department of Homeland Security (DHS) recently announced in a Federal Register Notice that it will comply with a series of court orders and injunctions by extending the Temporary Protected Status (TPS) of beneficiaries from six countries for nine months. The six countries covered are:
  • El Salvador
  • Haiti
  • Honduras
  • Nepal
  • Nicaragua
  • Sudan
TPS status was set to expire for those from the aforementioned countries on January 2, 2021, and coverage will now continue to October 4, 2021. 
 

What is TPS?

 
TPS provides a safe haven in the U.S. for foreign nationals escaping from countries experiencing armed conflicts, natural disasters, and other events who may not qualify for asylum and for whom potentially dangerous situations in their home countries makes them disinclined to return. TPS allows recipients to live and work in the U.S., but it does not provide a path to permanent residence. The Secretary of the DHS must periodically review TSP status and can choose to extend it for periods of six to 18 months if conditions in the country continue to meet the requirements for designation. 
 

What the TPS Extension Means for Employers 

 
The Federal Register Notice automatically extends the expiration of all TPS-related documentation for the six covered countries through October 4, 2021. This documentation includes:
  • Employment Authorization Documents (EADs)
  • Forms I-797
  • Notices of Action 
  • Forms I-94
  • Arrival/Departure Records
More simply, the order allows covered individuals to live and work in the U.S. for the next nine months. It also spans through the Trump presidency and into President-elect Biden’s time in office. President-elect Biden has vowed to not return TPS recipients to unsafe countries.
 
Use the chart below to determine which documents a current TPS beneficiary may present, along with the new expiration date of their automatically extended EAD. 
 
If the employee’s EAD has
category code of A-12 or C-19
and a Card Expires date of:
Enter the new expiration date of
the employee’s automatically
extended EAD on Form I-9:
You must reverify the
employee before they
start work on:
07/22/2017 10/04/2021 10/05/2021
11/02/2017 10/04/2021 10/05/2021
01/05/2018 10/04/2021 10/05/2021
01/22/2018 10/04/2021 10/05/2021
03/09/2018 10/04/2021 10/05/2021
06/24/2018 10/04/2021 10/05/2021
07/05/2018 10/04/2021 10/05/2021
11/02/2018 10/04/2021 10/05/2021
01/05/2019 10/04/2021 10/05/2021
04/02/2019 10/04/2021 10/05/2021
06/24/2019 10/04/2021 10/05/2021
07/22/2019 10/04/2021 10/05/2021
09/09/2019 10/04/2021 10/05/2021
01/02/2020 10/04/2021 10/05/2021
01/05/2020 10/04/2021 10/05/2021
03/24/2020 10/04/2021 10/05/2021
01/04/2021 10/04/2021 10/05/2021

 

GoffWilson Immigration Law 

 
If you or your business have any questions about how this notice affects I-9 compliance, how to properly process I-9s for those with extended work authorizations like TPS, or have any issues with employees or would-be employees from these six countries, contact GoffWilson today. GoffWilson solely practices immigration law and is a valuable partner to businesses with foreign-born workers—helping them access a global workforce and remain in compliance with complex and ever-changing immigration law. Immigration isn’t just what we do, it’s our passion!
 
Happy holidays to employers and workplaces operating remotely due to the COVID-19 pandemic—the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have extended their guidance allowing increased I-9 flexibility through December 31, 2020.
 
Through the guidance, workplaces functioning remotely are allowed to inspect Section 2 documents over video, fax, email, or other formats. 
 

Increased I-9 Flexibility During COVID-19 

 
The policy was originally enacted on March 20, 2020, and was scheduled to expire after 60 days. Since its announcement of the guidance, DHS has extended it six times (including this most recent extension). The last time the guidance was revisited was September 19, 2020, when DHS extended the policy for an additional 60 days, having it run through November 19, 2020. 
 
GoffWilson has rigorously detailed the policy and its extension over this period of time on our blawg: 
 

Who The Guidance Applies To 


Increased I-9 flexibility only applies to employers and businesses that are operating remotely. Businesses with employees physically present at the workplace do not qualify for these exceptions and must follow the normal rules and regulations to remain in compliance. 

Eligible employers taking advantage of this guidance will want to note, under the current policy, when “normal operations” resume, they’ll have just three days to verify the employment eligibility in-person of any employee onboarded remotely.
 

Looking Ahead at I-9s

 
It’s hard to predict how long employers can anticipate the increase in I-9 flexibility to last, especially given the number of times it has already been extended. It’s similarly difficult to anticipate how DHS and ICE will resume “normal operations.”  
 

GoffWilson Immigration Law  

 
Solely practicing immigration law, GoffWilson can provide businesses with clarity, help them to develop a proactive plan (for the present and future), and remain in compliance when dealing with fluid regulations such as the guidance on increased I-9 flexibility. GoffWilson is a partner to businesses operating globally and a valuable resource for staying current on complex and ever-changing immigration law. Contact GoffWilson today—immigration isn’t just what we do, it’s our passion!

The Department of Homeland Security (DHS) has published regulatory changes that further restrict H-1B visa eligibility. The changes are set to take effect on December 7, 2020, although they’re already facing challenges in court. Some of the key changes are:
 

Specialty Occupation

 
The rule changes the definition of a “specialty occupation” and now requires a direct relationship between the degree field(s) and the duties of the position. General degrees, such as engineering or business, without further specialization or explanation, are no longer sufficient. In cases involving degrees in multiple and dissimilar fields of study, petitioners must demonstrate how each field provides specialized knowledge and is directly related to the position. Petitioners must establish that a bachelor’s degree in a specific specialty is a minimum requirement for entry into the occupation in the U.S. by establishing that: 
 
  • The required degree is always the requirement for the occupation as a whole;
  • The required degree is always the requirement within the relevant industry;
  • The required degree is always the petitioner’s requirement for the position; or
  • The specific duties of the position are so specialized, complex, or unique that the required degree is necessarily required to perform these duties.
 

Third-Party Worksites

 
The rule adds specific definitions of “worksite” and “third-party worksite” and sets a one-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite. A worksite is now defined as “the physical location where the work is actually performed by the H-1B nonimmigrant.” A third-party worksite is now defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.” 
 

Employer-Employee Relationship

 
The rule also changes the definitions of “United States employer” and “employer-employee relationship.” Specifically, a U.S. employer is defined as a person, firm, corporation, company, or other association or organization in the United States which: 
 
  • Engages the beneficiary to work within the U.S., and has a bona fide offer for the beneficiary;
  • Has an employer-employee relationship with respect to employees under this part; and
  • Has an Internal Revenue Service Tax identification number.
 
The employer-employee relationship is defined to be the “conventional master-servant relationship as understood by common-law agency doctrine” and is to be evaluated by USCIS through a list of eleven factors. A petitioner must also provide corroborating evidence of work in a specialty occupation at the time of filing.
 

Site Visits

 
The rule states the authority of USCIS to conduct H-1B site visits and describes the scope of inspections, which may include the petitioner’s headquarters, satellite locations, or the location where the beneficiary works or will work, including third-party worksites. The rule also specifies that failure or refusal to cooperate with a site visit may be grounds for denial or revocation of any H-1B petition for the location(s) which are a subject of inspection.
 
Contact GoffWilson today to prepare yourself and your employees for these regulatory changes. GoffWilson solely practices immigration law and is an ideal partner for navigating complex and ever-changing immigration laws.


 
A federal judge has temporarily blocked the U.S. Citizenship and Immigration Services’ (USCIS) increase in fees (more than 80% in some cases)—targeting individuals wanting to immigrate to and become citizens of the United States—that were slated to go into effect on October 2, 2020. 
 

Increase immigration Fees

 
The most significant issue that immigration advocates have with the USCIS rule was the proposed fee hikes, which were both sweeping and steep. Below are some of the notable price changes, along with the percentage of the increase:
 
  • H-1B visa: $460 to $555 (+21%)
  • L visa: $460 to $805 (+75%)
  • O visa:$460 to $705, (+53%)
  • P visa: $460 to $695 (+51%)
 
The cost of other visa petitions such as those for TN, E, Q, and R visas are also all marked for increases greater than 50%. Additionally, the USCIS rule seeks to impose higher fees on companies with more than 50 employees with at least 50% of their workforce in H-1B and L-1 status by imposing an additional $4,000 fee on extensions. 
 
Immigrants wanting to become U.S. citizens are not immune from the price hike; naturalization application fees would soar from $640 to $1,160—more than an 80% increase. For context, the last time the fees for naturalization rose was in 2016, when they went up roughly 20%. 
 

Setting the U.S. Apart

 
Seemingly no immigrant group would be exempted by the cost increases—the rule would also establish a $50 charge to individuals applying for asylum, as well as begin charging asylum applicants $490 for employment authorization documents (EAD), something which is currently free. This change would make the United States one of the few countries in the world to charge a fee to asylum seekers. 
 

Longer Premium Processing Times and Higher Costs 

 
The other notable proposed change halted by the block is longer premium processing times, as the USCIS would have begun processing cases within 15 business days, as opposed to the current 15 calendar days it currently operates within. Additionally, under the stopped USCIS rule, premium processing fees on services other than H-2B and R-1 petitions are slated to jump from $1,440 to $2,500. 
 

The Reason for the Increase in Fees 

 
USCIS is a fee-funded agency, meaning that a considerable portion of their funding comes from the fees it collects. The reasons for the shortfall of funding are up for debate; some cite the substantial decline in immigration applications that has resulted due to the coronavirus pandemic, while others argue that the White House’s restrictive immigration policies and anti-immigrant rhetoric, along with increased costs from their more intense application processing is responsible for the shrinking revenue. 
 
The lack of funding has forced USCIS to make spending cuts and the department has made repeated threats of furloughing a large portion of their workforce.  
 

The Ruling 

 
U.S. District Judge Jeffrey S. White (who was appointed by President George W. Bush) issued a preliminary injunction of the USCIS rule, finding numerous flaws in it—most notably, USCIS’s failure to sufficiently justify the large fee increases and failure to take into account the impact the significant fee increases will have. Judge Jeffrey White also questions the legitimacy of the acting secretary of the Department of Homeland Security, Chad Wolf, as he was potentially unlawfully appointed and never confirmed by the Senate. 
 

What this Ruling Means

 
It’s always difficult to predict exactly how these rulings will translate. In the short-term, Judge White’s ruling halts the massive fee increases which is a win for immigrants in, and hoping to come to, the U.S. On the negative side, it could mean that USCIS follows through on furloughing employees, which will lead to longer processing times. 
 
In the long-term, the court striking down the legitimacy of the acting secretary of the DHS could have a ripple effect on the policies enacted under his watch, which could theoretically undo a considerable amount of the Trump administration’s immigration policies put in place over the past year and half. 
 

GoffWilson Immigration Law

 
If you’re interested in learning what this ruling means for you, your family, or your business, contact GoffWilson today. For example, fee hikes are likely coming and those who act early might save a sizable amount of money. Solely practicing immigration law, GoffWilson is uniquely qualified to help you navigate the complex and ever-changing U.S. immigration laws and develop an immigration strategy tailored to your personal needs. At GoffWilson, immigration isn’t just what we do, it’s our passion.
 
In March, at the outset of COVID-19, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) announced a host of temporary changes to I-9 compliance to accommodate the stay-at-home orders and dramatic shift to remote work brought by the coronavirus pandemic. GoffWilson has detailed the announcement and its extensions extensively on our blog: 
 
 
On September 15, DHS and ICE announced an extension of the flexibility of I-9 requirements for another 60 days, pushing the expiration date to November 19, 2020.
 

What You Need Know 

 
The most notable aspect of this extension is that it pertains solely to employers and workplaces that are operating remotely. Under the guidance, employers operating remotely are able to inspect Section 2 documents over video, fax, email, or other formats—noting “COVID-19” in the Additional Information section. 
 
When “normal” operations resume, employers have three days to make a physical inspection of Section 2 documents and should write “physically examined” with the date of inspection in the field for Additional Information. 
 
It’s important to note that employers who have employees physically present at their places of business are excluded from this flexibility and must verify employment eligibility documentation in person. 
 

Moving Forward 

 
DHS is monitoring the current situation and will continue to update this guidance as necessary; they encourage employers to monitor both the DHS and ICE websites for updates on when they will terminate the extension and when normal options will resume. The situation is fluid and it’s difficult to predict what will happen going forward—the announcement has already been extended multiple times. 
 
Regardless of whether or not the announcement is extended again in November, it is vital that your business have a strategy for resuming “normal” operations. Neither DHS nor ICE have given any indication that they’ll be anything but rigid when it comes to timelines at the conclusion of this guidance. 
 

GoffWilson Immigration Law 

 
For more than 30 years, GoffWilson has been the go-to resource for I-9 compliance, providing everything from comprehensive company audits to training workshops, along with annually holding public training seminars. If your business needs help instituting a post-COVID strategy, or wants to take a preemptive compliance measure such as performing a self-audit, contact GoffWilson today. Immigration isn’t just what we do, it’s our passion.

 
On August 19, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension of their increased flexibility with I-9 compliance in response to COVID-19. Originally announced at the end of March, the guidance, which was set to expire on August 18, will now run through September 19. 
 

Employers Affected 

 
The increased I-9 flexibility guidance only applies to workplaces that are operating remotely and allows these businesses to perform a virtual inspection of documents via video call, email, or fax rather than the traditional in-person document review. Employers should take care to follow the updated DHS recommendations for virtually processing I-9s that were released when the guidance was extended in July; details can be found in our blawg, Temporary COVID-19 Form I-9 Policies Continue
 
It’s important to note that the extension only applies to employers operating entirely remotely. If a claim to an exception is nuanced—for example, the executive team is working on-site but the support staff is working virtually—it’s important to discuss with counsel before taking any I-9 action. 
 

Temporary Flexibility for Certain I-9 Requirements  

 
The United States Citizenship and Immigration Service (USCIS) also announced that employers are permitted to accept Form I-797 Notice of Action showing approval of an Employment Authorization Document (EAD) (Form I-765) as a List C employment authorization document for Form I-9 compliance. This change is the result of a delay in the production of certain Employment Authorization Documents (Form I-766, EAD). 
 
Important takeaways include: 
 
  • Form I-797 is acceptable to show approval of an EAD application—as a List C document—between December 1, 2019, and August 20, 2020 
  • Employers must re-verify employees who use Form I-797 as a List C document by December 1, 2020 
  • Form I-797 doesn’t prove identity and cannot serve as a List A or List B document 
 
USCIS is encouraging employers to accept new EADs from employees as soon as they receive them in advance of the December 1 deadline. 
 

I-9 Uncertainty 

 
There is a great deal of flux in I-9 compliance at the moment, making long-term planning difficult. Both DHS and ICE encourage employers to monitor their websites for updates about extensions and the resumption of normal operations. This leaves open the possibility of increased I-9 flexibility ending abruptly. It’s also just as likely that the guidance will be extended again on September 19, as it has already been multiple times. 

When the guidance ends and “normal” business operations resume, employers will have just three days to make a physical inspection of documents and DHS and ICE have given no indication that they will relax their timelines. This makes it vital that employers have a plan in place for resuming “regular” operations. 
 

GoffWilson Immigration Law 

 
GoffWilson has long been a leader in I-9 compliance—routinely holding seminars and training along with performing rigorous company audits. If you have a question about how your business should proceed to process I-9s in the current environment, or would like to develop a strategy for the reinstitution of pre-COVID I-9 compliance, we can help. Contact GoffWilson today—immigration isn’t just what we do, it’s our passion!

Last week, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) announced the extension of the guidance increasing flexibility in I-9 compliance and relaxing in-person verification requirements. This marks the third time the policy, which was established in late March, has been extended—preceding this action, it had been extended for 30 days on May 19 and another 30 days on June 19. For the moment, the policy is slated to run through August 19. 
 

I-9 Extension and Employers

 
The extension of the guidance applies to employers operating 100% remotely as a result of the coronavirus pandemic. It also covers newly hired and existing employees who are subject to quarantine or lockdown protocols. Our blawg, I-9 in the Age of COVID-19, thoroughly explains the details of the original DHS and ICE guidance. 
 

What’s New in the Extension

 
While the announcement extended the increased I-9 flexibility, it ended ICE’s policy granting extensions to employers who were served notices of inspections (NOIs). Prior to the recent announcement, employers served with NOIs were granted an additional 30 days to respond.  
 

The Extension Going Forward 

 
As previously stated, this extension is set to expire on August 19. Over that time, DHS and ICE will monitor the pandemic and provide updated guidance when necessary. Employers are required to monitor both the DHS and ICE websites for when normal operations will resume. Another website to keep current on is GoffWilson.com.  
 

GoffWilson Immigration Law

 
GoffWilson is committed to being a go-to resource for the immigrant community and those who employ and support them. We regularly update the resources page of our website to ensure easy access to the most recent forms, while our blawg is a reliable source for keeping informed of the latest in immigration law. 
 
Immigration law is a complex and ever-changing field, which can leave many businesses flustered. If you have questions about the latest extension or any other immigration subject, contact GoffWilson today. Immigration isn’t just what we do, it’s our passion!


 

On Tuesday, the Trump administration rescinded a policy that would have forced international students on F-1 and M-1 visas to either leave the U.S. or transfer to another school if their classes are held entirely online in the fall. The decision to revert back to a March guidance—which allows for flexibility during the coronavirus pandemic—was made as the administration faced eight federal lawsuits and intense opposition from entities such as cities, states, and colleges and universities.
 

Ordered Back to Class 

 
The policy directive reversed on Tuesday was only issued by Immigration and Customs Enforcement (ICE) a little over a week ago, on July 6. The guidance was immediately met with resistance—students expressed concern that it failed to consider their well being and colleges and universities were sent scrambling to readjust their fall plans, many of which were the result of months of preparation. In a statement to students, Harvard President Larry Bacow said that the policy “came down without notice—its cruelty surpassed only by its recklessness.”
 

What the Rescission Means for International Students 

 
For the moment, international students on F-1 and M-1 visas are able to study in the U.S. even if the institution they’re attending has moved exclusively online as the result of the pandemic. This is in line with the temporary suspension limiting online education available to international students instituted in March. While students and institutions of higher education can breathe a sigh of relief for the moment, it’s important to note that there is nothing to stop the administration from trying again with another directive. 
 

Opposition from Harvard & MIT 

 
The administration’s abandonment of their planned policy comes in response to a federal lawsuit brought by Harvard and MIT. While the two Boston-area schools were the first to challenge the policy, they were not alone; more than 200 universities signed briefs backing the legal challenge. According to Larry Bacow, “The ICE directive sought to force each of us to choose between the health of our communities and the education of our international students—a false and dangerous choice which we rejected.”
 
The administration’s walking back of their policy was applauded by the American Council on Education (ACE), a group that represents university presidents. Terry Hartle, ACE’s senior vice president said about the collective disapproval of the guidance by the college community, “There has never been a case where so many institutions sued the federal government.” 
 

Additional Opposition

 
Colleges and universities were joined in their objection to the policy by a coalition of 17 states and the District of Columbia, who collectively filed another federal lawsuit against the administration calling the policy “a cruel, abrupt, and unlawful action to expel international students.” 
 
The coalition of states represents a broad swath of the U.S., including states on both coasts and the midwest. The states in the coalition were: 
 
  • Connecticut
  • Maryland
  • Illinois
  • Pennsylvania
  • Virginia
  • Nevada
  • Massachusetts
  • Minnesota
  • New Jersey
  • Colorado
  • Delaware
  • Oregon
  • New Mexico
  • Rhode Island
  • Wisconsin
  • Vermont
  • Michigan
 
There are also 26 cities and counties that were vocal about their disapproval of the White House’s policy, voicing concern over the damage it will do to their economies. The cities range from major metropolises like New York City—where international students contribute $3 billion per year to its economy—to more average American cities such as Iowa City, whose 2,500 international students contribute millions of dollars per year. 
 
Briefs supporting the Harvard and MIT lawsuit were also filed by the U.S. Chamber of Commerce along with companies including Facebook, Google, and Microsoft.
 

GoffWilson Immigration Law

 
GoffWilson exclusively practices immigration law and has helped numerous colleges and universities bring the world’s brightest minds to their campuses. If you have a question about what the latest policy directive means for your institution or have any other inquiries about international students, contact us today. Immigration isn’t just what we do, it’s our passion!

The U.S. Department of Homeland Security (DHS) announced it will extend the remote I-9 policy—with further extensions possible—that was implemented in March. The policy allows flexibility in the completion of Form I-9 for employers and employees affected by the COVID-19 pandemic, the details of which we covered thoroughly in our blawg, “I-9 in the Age of COVID-19.”
 

Guidance on Processing Form I-9 

In addition to the extension of the remote I-9 policy, the DHS has provided updated guidance on how to remotely process I-9s and handle identity documents, as well as the procedure for the physical inspection required at a later day. They also published Form I-9 examples demonstrating how employers should complete and update the form upon reopening. The examples show how to:
 
The published I-9 examples specifically cover how an employer should:
  • Complete Section 2 remotely
  • Update the I-9 when normal operations resume
  • Proceed if the person who performed the remote inspection cannot also perform the physical inspection
  • Properly enter an expired-but-extended List B document in Section 2
  • Update Section 2 once the employee presents the renewed, unexpired document when normal operations resume

GoffWilson Immigration Law

We encourage employers to review the published examples and use them as guidance when completing/updating Forms I-9 for affected employees. GoffWilson has decades of experience in I-9 compliance and is a go-to resource for any Form I-9/E-Verify questions. Contact us today for assistance.

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