I-9 Update: I-797 Approvals Can Be Accepted in Lieu of EAD Cards

Citing COVID-19, USCIS has been experiencing significant delays in issuing EAD cards. USCIS has therefore announced that I-797 approvals with a notice of action date from December 1, 2019 to August 20, 2020 are acceptable as documentation to satisfy work eligibility for I-9 purposes.

 

Employers should note that I-797 approvals can only be used to satisfy work eligibility, and not identity. If an I-797 approval is used for work eligibility, the employee must also present a List B document to prove identity. By December 1, 2020, employers must re-verify any employee who presented an I-797 approval.

 

We will continue to provide updates on changes to the I-9 process due to the pandemic. In the meantime, please contact your Graham Adair attorney with any questions.

Clarifications to Suspension of the Entry of Immigrants and Nonimmigrants

On June 22, 2020, President Trump signed Presidential Proclamation 10052, which suspends the entry to the United States of certain foreign nationals who present a risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.  The Proclamation included an exception for individuals whose entry is in the national interest as determined by the Secretary of State and the Secretary of Homeland Security.

The State Department recently enumerated a non-exhaustive list of the types of travel by H-1B, L-1A, L-1B and J-1 nonimmigrants that may be considered to be in the national interest and thus exempt from application of P.P. 10052.

The following national interest travel exceptions apply for H-1B applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when AT LEAST TWO of the following five indicators are present:
    • The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States – this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
    • The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:
  • Senior-level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
  • The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
  • The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.
  • The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
  • Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer, i.e., the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

The following national interest travel exceptions apply for L-1A applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship.
  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  An L-1A applicant falls into this category when AT LEAST TWO of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
    • Will be a senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; OR
    • Will fill a critical business need for a company meeting a critical infrastructure need

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

The following national interest travel exceptions apply for L-1B applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.
  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if ALL THREE of the following indicators are present:
    • The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
    • The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
    • The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

National interest exceptions are available for H-4, L-2, and J-2 dependents who will accompany or follow to join a principal applicant who has been granted a national interest exception to P.P. 10052.

Applicants who are subject to this Proclamation, but who believe they may qualify for a national interest exception or other exception, should contact their Graham Adair attorney to request an emergency appointment. We will need to articulate specific details as to why the employee should qualify for an exception.  While a visa applicant subject to the Proclamation might meet an exception, the applicant must first be approved for an emergency appointment request, and a final determination regarding visa eligibility will be made at the time of visa interview. Travelers who are subject to a regional COVID-19 restriction but who do not require a visa, such as ESTA travelers (i.e., those traveling on the Visa Waiver Program), should also contact us for how to request consideration for a national interest exception.

New Executive Order to Review H-1B Impact on U.S. Workers

Today’s executive order does not create any immediate change to H-1B workers.

 

This most recent executive order on immigration brings H-1Bs under scrutiny in two different respects:

 

  • It directs federal agencies to review instances where H-1B workers provided services, whether through contract or subcontract, that may have negatively impacted U.S. workers. Agencies have 120 days to submit their report. Depending on the findings, further action may be taken to restrict the hiring and employment of H-1B workers by federal agencies.

 

  • It tasks the Department of Labor and the Department of Homeland Security with ensuring adequate protection of U.S. workers. While the executive order does not detail what this directive entails specifically, based on previous measures this may involve LCA audits, an increase in H-1B worksite visits, and increased requests for evidence based on LCA conditions, including job classifications and wage levels. The Secretaries of Labor and Homeland Security have 45 days to take action to implement any protections that are deemed necessary, so we will likely see some changes soon.

 

We are closely monitoring this situation and will provide updates as we have them. In the meantime, please contact your Graham Adair attorney with any questions.

DHS Further Extends Flexibility in I-9 Verifications

On March 20th, DHS deferred the physical examination requirement of work authorization documents for Form I-9.? This allowed employers to inspect Section 2 documents via video link, fax, or email, as long as specific notation is entered in the “Additional Information” field on Section 2.? You can find our news alert on the initial guidance here.

 

Due to continued precautions related to COVID-19, DHS extended this flexibility for another 30 days to August 19th.

 

If you have any questions on how to complete the Form I-9 during these times, please contact your Graham Adair representative.

U.S Will Rescind SEVP Rule Restricting Online Curriculum for Foreign Students

On July 14, 2020, the U.S. Department of Homeland Security and Immigration and Customs Enforcement, as part of a resolution reached pursuant to a lawsuit, agreed to rescind the July 2020?Student and Exchange Visitor Program (SEVP) policy change. As we?previously reported, the SEVP policy change would have required?foreign students in F-1 or M-1 status in the U.S. to take at least some in-person coursework in the fall 2020 semester. According to the resolution, the federal government will rescind the July 6, 2020 SEVP Policy Directive and the July 7, 2020 SEVP FAQ (as well as the implementation of the same).

 

Based on this update, the prior COVID-19-related SEVP guidance issued in March 2020 continues in effect, which will allow F-1 and M-1 students taking only online courses in the fall 2020 semester to continue to lawfully reside in the United States.

 

Please contact your Graham Adair attorney with any questions.

ICE Flexibility on I-9 Rules Extended for Another 30 Days

On March 20, as we?previously reported, DHS announced that it would allow inspection of I-9 Section 2 documents remotely via video link, fax, or email due to physical proximity precautions related to COVID-19.? The?original announcement was valid for 60 days only, but was extended for 30 days until June 18.? Due to continued precautions related to COVID-19, DHS has further extended this flexibility for another 30 days until July 19.

If you have any questions, contact your Graham Adair representative.

DHS Extends Flexibility in I-9 Verifications for 30 days

On March 20th, DHS deferred the physical examination requirement of work authorization documents for Form I-9.? This allowed employers to inspect Section 2 documents via video link, fax, or email, as long as specific notation is entered in the ?Additional Information? field on Section 2.? You can find our news alert on the initial guidance here.

This flexibility was scheduled to end on May 19th. However, due to continued precautions related to COVID-19, DHS extended this flexibility for another 30 days or until June 18th.

If you have any questions on how to complete the Form I-9 during these times, please contact your Graham Adair representative.

Flexibility in I-9 Verifications during COVID-19 Shutdown

The Department of Homeland Security announced that it will defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9).? As employers and employees observe social distancing precautions, employers can now inspect Section 2 documents remotely via video link, fax or email, etc.? However, please note the following important steps:

 

  • Employers must view Section 2 documents, even if remotely, within 3 business days of the start of employment;
  • Documents submitted via email/fax/etc. must be retained;
  • Once physical examination is conducted:
    • Employers should enter “COVID-19” in the “Additional Information” box on Section 2;
    • Employers should add “Documents physical examined [INSERT DATE]” in the “Additional Information” field on Section 2.
    • The explanation for the delay should also be added on a memo attached to the employee’s I-9 file.
    • Once normal operations resume, employees must present the original documents used during remote verification within 3 business days.? Employers should add the date in which in-person verification took place in the “Additional Information” field on Section 2.

 

Employers may implement the above provisions for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first.

 

The above rules only apply to employers and workplaces that are operating remotely.? If employees are physically present at a work location, normal I-9 verification rules apply.

If you have any questions regarding I-9 compliance, please contact your Graham Adair representative.

USCIS To Accept Reproduced Signatures During COVID-19 National Emergency

For petitions filed on March 21, 2020 and beyond, USCIS will begin accepting reproduced original signatures on forms and documents, including Form I-129. A document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature. USCIS will not accept signatures created by a typewriter, word processor, stamp, auto-pen, or similar device. The signatory must have authority to sign on behalf of the petitioning entity.

 

Petitioners or applicants who submit an electronically reproduced original signature must keep copies of the original documents containing the “wet” signature. At their discretion, USCIS may request the original documents at any time. Failure to produce the original document can negatively impact the application.

 

If you have any questions, please contact your Graham Adair representative.

I-9 Compliance During the COVID-19 Pandemic

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

 

In fact, there is language on USCIS’s??Special Situations?webpage that states, “All requirements for?Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

 

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

 

  1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

 

  1. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

 

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

 

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

 

  1. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

 

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

 

  1. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

 

  1. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

 

  1. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR ?274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

 

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

 

  1. Does suspension of employer operations impact the employment verification requirements?

Yes. If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, remember to note this on the Form I-9.

 

  1. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

 

  1. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

  • Create a file memo. This provides a record for future possible enforcement action.
  • Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
  • Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR ?274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents?attached to the Form I-9.
  • Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
  • Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
  • Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.

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