Category Archives: Immigration and Customs Enforcement

Categories Department of State Immigration and Customs Enforcement News & Updates

Current COVID-related Guidance on Travel to and From the United States

With the constantly changing landscape around COVID-related travel restrictions, is it important to find updated information prior to any international travel. As of right now, our current guidance is as follows:

Before Departing the U.S.

It is recommended to be fully aware of the COVID-19 requirements at your destination as they may differ from U.S. requirements. You can find country-specific guidance on the CDC website. Failing to follow your destination’s requirements can result in denial of entry.

Per CDC guidance, you should refrain from traveling if you have COVID-19 symptoms, you tested positive for COVID-19, you are waiting for results of a COVID-19 test or you had close contact with a person with COVID-19 and are recommended to quarantine.

Vaccination Requirements to Enter the U.S.

As of June 12, 2022, the CDC is no longer requiring air passengers traveling from a foreign country into the U.S. to show a negative COVID-19 test or documentation of recovery from COVID-19.

U.S. citizens, Legal Permanent Residents and Nonimmigrants flying into the U.S. will be required to provide contact information to their airline before boarding a flight to the United States.

Nonimmigrants entering the U.S. through air, land or ferry must be fully vaccinated, with limited exceptions. A person is considered fully vaccinated:

  • 2 week (14 days) after an accepted single-dose vaccine
  • 2 weeks (14 days) after second-dose of an accepted 2-dose vaccine
  • 2 weeks (14 days) after receiving the full series of an accepted COVID-19 vaccine in a clinical trial
  • 2 weeks (14 days) after receiving 2 doses of any “mix and match” combination of accepted COVID-19 vaccines administered at least 17 days apart

Accepted COVID-19 vaccines include the following:

  • Single dose: Janssen/J&J and Convidecia (CanSinoBIO)
  • 2-dose series: Comirnaty (Pfizer-BioNTech); Spikevax (Moderna); Vaxzevria (AstraZeneca); Covaxin; Covishield; BIBP/Sinopharm; CoronaVac (Sinovac); Nuvaxovid (Novavax); Covovax; and Medicago (clinical trial vaccine)

Accepted proof of COVID-19 vaccination must have personal identifiers (full name plus another identifier such as date of birth or passport number), name the official source who issued the record and list the vaccine manufacturer and date(s) of vaccination. Accepted proof of COVID-19 vaccination includes the following:

  • Verifiable records (digital or paper): vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Non-verifiable paper records: printout of COVID-19 vaccination record or COVID-19 vaccination certificate issued at a national or subnational level or by an authorized vaccine provider
  • Non-verifiable digital records: Digital photos of vaccination card or record, downloaded vaccine record or vaccination certificate from official source

In order to expedite the inspection process, the Department of Homeland Security is encouraging travelers arriving or departing the U.S. to use Simplified Arrival or Mobile Passport Control, which can make the inspection process touchless and more expedient with the use of facial comparison technology.

Please contact your Graham Adair attorney with specific travel questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories Compliance Immigration and Customs Enforcement News & Updates

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.

Categories Compliance Immigration and Customs Enforcement News & Updates

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.

Categories Compliance Immigration and Customs Enforcement News & Updates

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.

Categories Immigration and Customs Enforcement News & Updates

San Ysidro Port of Entry Reopened After 11/25 Closing

On Sunday, November 25, service at the San Ysidro Port of Entry on the Mexican border was suspended for several hours due to escalating tensions between migrants and U.S. Border Patrol in Tijuana.

U.S. Customs and Border Protection closed northbound, southbound, and pedestrian access to the Port around 11:30AM, reopening pedestrian access at 3:45PM and reopening the rest of north- and southbound vehicle access by 6PM. Extra personnel, including officers from Customs and Border Protection, Border Patrol, the Air Force, and the Marine Corps, were also deployed in response.

While the Port is currently open, clients should monitor the situation and plan accordingly, as complications may arise in the future without warning.

For further information on how this may affect your business, please consult with our attorneys.?For more frequent updates, please?follow us on?Twitter?(@GrahamAdairLaw).

1 2 3 8