United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing for all FY 2021 cap-subject petitions. USCIS expects this suspension to last until no later than May 27, 2020 for FY 2021 cap-subject petitions requesting a change of status from F-1 nonimmigrant status.

USCIS predicts that the earliest date the agency will resume premium processing for all other cap-subject H-1B petitions is June 29, 2020.

During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2021 cap.

By Catherine V. Wadhwani and Robert S. Whitehill

Without fanfare, U.S. Citizenship and Immigration Services (USCIS) recently updated its website with an Alert https://www.uscis.gov/greencard/public-charge relating to its Public Charge requirements in the context of the Novel Corona Virus Disease (COVID-19) pandemic.  As concerns about the spread of COVID-19 in the U.S. increase, USCIS recognized that those grappling to fully understand its recent Public Charge Rule may be so concerned about the impact on their immigration status that they may refrain from seeking needed medical care. 

Readers may recall that on January 27, 2020, the U.S. Supreme Court lifted injunctions imposed by several lower Courts that had prevented implementation of USCIS’s October 2019 Inadmissibility on Public Charge Grounds Final Rule.  The Supreme Court’s action allowed the Pubic Charge Rule to take effect with regard to filings received by USCIS on or after February 24, 2020.  The Rule affects most I-485 Adjustment of Status applications, as well as many filings by or on behalf of foreign nationals who are in the U.S. in temporary statuses and seeking an extension of stay or change of status.

In the posted Alert, USCIS “…encourages all…including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services.” The Alert then offers this, “Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.”  And further, “The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19…” 

Next, the Alert explains that the receipt of public benefits is only one of many factors considered in a totality of the circumstances review, then it specifically addresses the point at-issue saying:

To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge admissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).

While the first part of the Alert seems clear, the remaining part of the Alert raises confusion.  The final paragraph of the Alert explains that USCIS is required by its Public Charge Rule to consider the receipt of certain public benefits, “including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination, and for purposes of a public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status.

This part of the Alert also specifies that “most forms of federally funded Medicaid (for those over 21)” are public benefits that must be considered under the Public Charge Rule, while listing those that are not included (CHIP, State, local or tribal public health care services / assistance that are not funded by Medicaid).  Does this mean that USCIS will consider the use of COVID-related public benefits but due to the compelling need for people to seek medical care when needed, they will not deem it a negative factor?

The Alert mentions that a person filing an I-485 Application for Adjustment of Status “may submit a statement…to explain how [COVID-19] affected the alien as relevant to the factors USCIS must consider in a public charge inadmissibility determination.”  The example provided is of a person who is prevented from working or attending school due to disease prevention methods such as social distancing or quarantines or where an employer, school or university voluntarily shuts down operations to prevent the spread of COVID-19.  If a person in this situation includes an explanation and supporting documents in their application, USCIS states that it will ‘to the extent relevant and credible”, consider this evidence in its totality of the circumstance analysis for that individual.

Affected individuals should be sure to maintain very clear documentation of COVID-19 related factors that affect their immigration status and the use of any public benefits so that it can be included in their Adjustment Applications as stated above, or as otherwise needed for their applications.

If you have questions regarding this topic, please reach out to Catherine Wadhwani at cwadhwani@foxrothschild.com or Robert S. Whitehill at rwhitehill@foxrothschild.com or any member of the firm’s immigration practice group.  Both Mr. Whitehill and Ms. Wadhwani are located in Fox Rothschild’s Pittsburgh office and may also be reached at 412-391-1334.

The recent wave of public and private university and college closings due to the COVID-19 (Coronavirus) is only going to increase throughout the United States.    Many colleges and universities have already moved to remote instruction with all classes online.   The cancellation of all remaining spring and winter sports championships by the NCAA is further evidence that schools are taking the outbreak seriously and not holding events that can encourage the spread of the pandemic.    Classes and events with large gatherings of students would only allow for the possibility of the virus spreading.

Immigration and Customs Enforcement (ICE) has published guidance on its website related to the Coronavirus:   https://www.ice.gov/sevis/whats-new

The government’s guidance that it is important for students to (1) maintain status, (2) work with employers to maintain practical training agreements, and (3) be cautious traveling.  This is indispensable during this period of uncertainty.  Students should continue their coursework through online classes.  If they have Optional Practical Training (OPT), students should be aware that with many workplaces encouraging work-from-home policies.  Students should proactively  confirm with their employers in writing the steps taken and of course stay in contact with their International Student Office.  Curricular Practical Training (CPT) could also be impacted by changes in employer polices.

ICE has clarified in guidance that “nonimmigrant students can continue to make normal forward progress in their program of study” if they are engaging in study online or in the U.S. This is important because  initially schools were advised to terminate SEVIS records if F students departed the U.S. thus taking away future CPT and OPT opportunities.

https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf

Further and equally important is that foreign students abroad and within the United States itself must carefully consider travel.

Most schools have Alert or Emergency Notification Systems that utilize text messages or other systems to communicate important information to students, so this would be the primary way to gain emergency information for all students, not just those from abroad.   Students should take all precautions as advised by the Center for Disease Control (CDC).  Information is available at their website: https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

 

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (February 19, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the public.

Check-in with DOS’s Charlie Oppenheim:  February 19, 2020

The March 2020 Visa Bulletin calls out two key developments.

First, and consistent with Charlie’s prior predictions, a final action date of January 1, 2017 will be imposed in March for EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam), as well as for the EB-3 (EW) Other Workers category for these countries.  No forward movement is expected in these categories in the foreseeable future.  Charlie anticipates that USCIS could revert resources that were previously allocated to EB-3 processing to EB-2 and/or EB-1 processing, generating additional demand in those latter categories. Charlie will watch movements in these categories closely and will likely refrain from posting updated projections until either the May 2020 or June 2020 Visa Bulletin.

Second, the final action dates for EB-5 China for both Non-Regional Center (C5 and T5) and Regional Center (I5 and R5) will advance 4.5 months in March to May 15, 2015. Despite the significant number of applicants who are eligible to respond to NVC’s requests for information, EB-5 China applicants are not becoming documentarily qualified in a timely manner.  Charlie emphasizes that the lack of demand and the decision to advance the final action date predates the novel coronavirus outbreak.  He noted, however, that moving forward, the recent, temporary closure of the U.S. Consulate in Guangzhou will impact EB-5 China number usage, with the exact impact being unknown and tied to the duration of the closure.  As this situation is fluid, Charlie cautions against speculating as to what impact this might have on the EB-5 China final action date.

Employment-based Preference Categories

EB-1:  In March EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines and Vietnam) advances three months to March 1, 2019. It remains possible that this category could become current in the summer of 2020. If demand levels remain steady, there may be sizeable advancement in April in EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam). However, it is also possible that this category could advance less quickly if USCIS shifts resources previously used to adjudicate EB-3 cases to EB-1 processing, thus increasing the demand.  After holding steady, the final action dates for EB-1 China and EB-1 India start to advance again in March, with EB-1 China advancing one week to June 1, 2017 and EB-1 India advancing two months to March 1, 2015.

EB-2:  EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines and EB-2 Vietnam) remains current in March, but Charlie continues to monitor demand closely. Based on current demand patterns, retrogression in EB-2 Worldwide will be required no later than June 2020 and possibly as early as April 2020. EB-2 China advances one month in March to August 15, 2015, and EB-2 India advances three days to May 22, 2009.

EB-3:  A final action date of January 1, 2017 is being imposed in March for EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam) and EB-3 Other Workers Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam).  EB-3 China advances seven weeks to March 22, 2016 in March and EB-3 China Other Workers advances one month to June 1, 2008. This places EB-3 China’s final action date more than seven months ahead of EB-2 China. Charlie is starting to see some downgrades from EB-2 to EB-3, but not yet in large numbers.  EB-3 India and EB-3 India Other Workers advance one week to January 15, 2009 in March.

EB-4:  Following a hold, the final action dates for EB-4 Mexico and EB-4 El Salvador, Guatemala and Honduras start to advance again in March 2020, with EB-4 Mexico advancing 1.5 months to November 15, 2017, and EB-4 El Salvador, Guatemala and Honduras advancing 2 weeks to July 15, 2016. Worldwide EB-4 demand is higher relative to what it was last year at this time. EB-4 Mexico will continue to advance until it reaches its per country limit, at which time its final action date will track that of EB-4 El Salvador, Guatemala and Honduras. EB-4 El Salvador, Guatemala and Honduras demand has tapered off over the last one to two months, dropping under the per country limit for this point in the fiscal year, which allowed for the limited movement in the date. Charlie will continue to monitor the demand trends carefully.

EB-5:  As noted above, EB-5 China number usage is down dramatically, causing the final action date to advance 4.5 months to May 15, 2015. The pace of advancement in EB-5 India slows to three weeks, giving it a final action date of October 22, 2018 for March. In contrast, EB-5 Vietnam advances one month, giving it a March 2020 final action date of January 15, 2017.

Family-based Preference Categories

The combined demand at USCIS and the U.S. Consulate in Ciudad Juarez has loosened up a bit for the Mexico family-based categories, allowing some room for advancement in March. The advancement ranges from two weeks to one month in all categories (except F2A Mexico which is already current).

Charlie is amazed that the demand levels in the Philippines family-based categories continue to remain very low. All Philippines family-based categories (with the exception of F2A Philippines which is current) will advance 5 months in March. Charlie cautions AILA members that the recent pattern in F4 Worldwide may eventually repeat itself in the Philippines family-based categories. Due to low demand levels in F4 Worldwide, Charlie rapidly advanced the final action date throughout FY19. When F4 Worldwide demand finally materialized in the Fall of 2019, it eventually caused the seven-month retrogression in the final action date which is expected to hold for the foreseeable future. A similar phenomenon is possible with regard to the Philippines family-based categories, should heavy demand finally start to materialize.

All F2A categories remain current for March. Although there was a temporary two-month surge in demand, it has now subsided. If this low demand trend continues, it is possible that a final action date may not need to be imposed as previously thought. When F2A became current in July 2019, there were over 89K applicants with 2017 priority dates. On November 1, 2019 there were 182K F2A applicants with petitions on file at the National Visa Center, and the category was “current”. It is unclear why these applicants are not seeking final action on their applications. Charlie will continue to watch the demand trends carefully.

F2B demand looks relatively steady across categories, with number usage right on target for where they should be at this time in the fiscal year.

The final action date for F4 Worldwide (including F4 China) holds at July 1, 2006 for March. Charlie does not see advancement in this category in the foreseeable future. However, there may be some hope for movement in this category in the second half of the fiscal year. In March F4 India advances two weeks to December 8, 2004, F4 Mexico advances one month to February 15, 1998, and as noted above, F4 Philippines advances five months to December 1, 1999.

Q&A: Employment-based Preference Categories

Question:  It appears that EB-3 worldwide is retrogressing to Jan. 1, 2017 on March 1. Do you have any predictions on movement forward of EB-3 for rest of the year?

Answer:  No movement in the foreseeable future.

Question:  Whether, when, and to what extent (if any) do you predict forward progress in final action dates and filing action dates for the EB-4 categories related to El Salvador, Guatemala, and Honduras? You predicted some months ago that we should expect little to no movement in these categories through the second quarter of FY2020. Do have more detailed information of what is likely to transpire in and beyond April 2020?

Answer:  The date for the three countries moved slightly for March and is unlikely to move again prior to June.

Question:  Mexico FB4 has been hovering around the Jan. 14, 1998 date (the first 245(i) cutoff so there are many cases with priority dates in that time frame). At one point, it advanced to Feb. 7, then retrogressed, and now has advanced to Jan. 15, 1998. Can Charlie please give some information about the status of demand for those numbers and the pace at which he expects it might advance?

Answer:  The date advanced several weeks for March, and future movement might average up to two weeks.

Question:  The February Visa Bulletin showed Rest of World (ROW) EB3 as current. Philippines EB-3 actually moved forward by a few months. While there was a note in the January Visa Bulletin indicating that Worldwide (WW) demand was spiking, what happened in the last 30 days to prompt the DOS to essentially shutdown the EB-3 category for all but China and India?

Answer: The high level of demand had been occurring for a period of several months, prompting the notes in both the January and February Visa Bulletins. Sometimes initial high demand patterns will change after a period of many months, returning to an acceptable level which is within the targeted number use total. Once it became apparent that the demand pattern was not showing any signs of a decline it became necessary to take corrective action to limit number use.

 Question:  It seems certain that the Adjustment of Status (AOS) processing time will slow down with the implementation of the public charge rule. To what degree was this taken into consideration with the Visa Bulletin? Or was that information too new to be factored into the March Visa Bulletin?

Answer: It is too early to determine if there will be any impact. It is important to remember that the determination of the dates is made in an attempt to make all numbers available for potential use under the respective annual limits.

You may access the February 2020 Visa Bulletin here and the March 2020 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Due to concerns relating to the spread of the coronavirus, President Trump announced today the upcoming suspension of travel from Europe to the United States, with the exception of the United Kingdom.  The travel suspension will go into effect on Friday, March 13, 2020 at midnight and remain in place for the next 30 days.   There will be certain exemptions for Americans who have undergone specific screenings.   The President indicated the restrictions will be adjusted based on current conditions.

We will continue to monitor the suspension and its impact on applicants for visas at U.S. Consulates abroad and admission at U.S. ports of entry.

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Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

 

Ready or not, it’s time to electronically register for the upcoming H-1B Cap Lottery.

The registration period began at 12:00 noon Eastern Time on Sunday, March 1, 2020 and will end at 12:00 noon Eastern Time on Friday, March 20, 2020.

Unlike in past years, this year, USCIS has implemented an electronic registration process as the means by which prospective H-1B petitioners may register for the Fiscal Year 2021 H-1B Cap Lottery.  The electronic registration is for cap-subject H-1B petitioners interested in sponsoring foreign national professional workers under the regular 65,000 FY 2021 H-1B Cap Lottery and those seeking to file under the 20,000 Advanced Degree Exemption.  An employer may only submit one registration per beneficiary per fiscal year.

Employers should take note that the electronic registration process for the H-1B Cap Lottery is being held now, earlier than the first-week of April timing.  By way of background, April 1st is the earliest possible time when the Regulations permit the filing of a cap-subject H-1B petition.

USCIS has indicated that it will conduct the H-1B Cap Lottery sometime after the electronic registration period closes at noon on March 20th and before March 31st.  The Agency will notify those whose registrations have been selected and will include the specific period during which each filing may be submitted.  USCIS has stated that a selected petitioner will be given no fewer than 90 days to file its H-1B petition on behalf of the named beneficiary.

 

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP.  For nearly 25 years, Catherine’s practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academia sectors.  Her practice covers the United States and Consulates worldwide.  Catherine is based in our Pittsburgh, Pennsylvania office.  You can reach Catherine at 412-391-1334 or cwadhwani@foxrothschild.com.

USCIS’s new online portal for H-1B cap registration officially opened today.  Employers and their Representatives may submit H-1B cap registrations starting today, March 1, 2020, through noon Eastern on March 20, 2020.  All FY 2021 cap registrations must be submitted during this time.  USCIS will run the H-1B cap lotteries between the close of the registration period on March 20, 2020 and March 31, 2020.   Petitioners with registrations selected in the lottery may begin filing FY 2021 H-1B cap-subject petitions with USCIS on April 1, 2020.  This is an entirely new process and employer-petitioners must take note: an H-1B cap-subject petition may only be filed by a petitioner whose registration for a specific beneficiary was selected in the H-1B registration.

For questions or more information, please contact Ali Brodie or any member of the firm’s Immigration Practice.

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Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

A recent federal district court decision from the Middle District of North Carolina has blocked the U.S. Department of Homeland Security from enforcing its 2018 Memorandum on F, J, and M Nonimmigrant Unlawful Presence nationwide. In Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., Federal District Judge, Loretta C. Biggs found that the policy violated the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA) and permanently enjoined (blocked) the Department of Homeland Security from enforcing this new policy.

As previously addressed in prior blog postings, F, J or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status would start to accrue unlawful presence under the terms of the memorandum and would no longer be deemed in Duration of Status.

The Court gives the example of engaging in an unauthorized activity to be one as seemingly minor as moving into a different dormitory without notifying the authorities of the new address, and through this example and statutory language and interpretation, shows that the agency actions openly conflict with statutory text.

Judge Biggs held that the new policy violated the plain language of the INA stating, “The memorandum improperly dissolves the distinction between the “expiration of the period of stay authorized” and the violation of lawful status”.

Thus, for now, international students can rely on their admission in Duration of Status to allow them to pursue their studies without concern over the government changing the definition of unlawful presence midcourse.

 

As of February 24, 2020, all applications for Adjustment of Status will be subject to the enhanced Public Charge Rule after a rule by the U.S. Supreme Court on January 27, 2020.  This rule, originally scheduled to take effect on October 15, 2019, was enjoined due to multiple federal court injunctions, which have now been lifted in all states, except Illinois.

The Inadmissibility on Public Charge Grounds Final Rule implemented by the Trump administration expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.  For additional information, please see our previous post on this topic.

In response to the ruling, on February 5, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance, effective February 24, 2020.  Among other things, the guidance defines the term “public charge,” lists the categories of exempt applicants, identifies the types of public benefits considered in inadmissibility determinations, and more.  Additionally, USCIS published revised forms consistent with the final rule, which must be used for applications file on and after Feb. 24, 2020 (except in Illinois, where the rule remains enjoined by a federal court):  With regard to applicants from Illinois, USCIS released a webpage providing information on how it plans to adjudicate applications for adjustment of status, extension of stay, and change of status for applicants and petitioners in Illinois (including information on the effects of moving in and out of the state).

USCIS will not consider the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (such as SNAP, most forms of Medicaid, and public housing) before February 24, 2020.  Similarly, USCIS will not consider as a heavily weighted negative factor receipt of previously included public benefits (such as SSI and TANF) before February 24, 2020.  (Note that Refugees, Asylees, Survivors of Trafficking, Survivors of Domestic Violence (T or U Visas), VAWA self-petitioners, or Special Immigrant juveniles are NOT subject to the new rule when applying for status or permanent residency.)

Policy Highlights
  • Defines the term “public charge” for purposes of inadmissibility determinations under INA 212(a)(4).
  • Lists the categories of applicants that are exempt from, or may obtain a waiver of, the public charge inadmissibility ground.
  • Identifies the types of public benefits that are considered in public charge inadmissibility determinations, as well as in applications and petitions for extension of stay and change of status.
  • Identifies the factors that USCIS considers and explains that officers review the totality of the applicant’s circumstances when determining public charge inadmissibility.
  • Explains that a sufficient Affidavit of Support Under Section 213A of the INA, when required, is but one factor in the totality of the circumstances, and does not, by itself, mean an alien is not inadmissible based on the public charge ground.
  • Explains the public charge bond process for adjustment of status applications filed with USCIS.
  • Explains the public benefits condition that applies to nonimmigrants seeking extension of stay and change of status.
  • Explains that the public charge ground of inadmissibility does not apply in naturalization proceedings except that, for the purposes of determining whether a naturalization applicant was lawfully admitted for permanent residence under INA 318, the officer’s review includes whether the alien was inadmissible based on the public charge ground.

The rule will require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency, when applying for a green card in addition to the many other forms already required as part of an adjustment application.  The new eighteen (18) page I-944 form requests a wide array of information including Personal & Household Assets, Resources, and Financial Status, Credit Score Report, Bad Credit Explanation, bankruptcy history, Health Insurance, Premium Tax Credits Obamacare, and Public Benefits Used by Individual.  There is no filing fee associated with the form, however, there may be costs to applicants, including obtaining a credit history from one of the three vendors.  USCIS has advised that it will take  approximately 4.5 hours to fill out the form, although it remains to be seen how long will actually be required.

Fox Rothschild will continue to monitor and report on activity regarding the Public Charge Rule.  As always, please refer to ImmigrationView for the latest information on topics of importance in U.S. immigration.
For questions or more information about this topic, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice.

Today, Jan. 31, 2020, USCIS published the long awaited new version of the Form I-9, Employment Eligibility Verification for immediate use.  The Department of Homeland Security (“DHS”) published a notice today in the Federal Register announcing the official release of the new version of the form, as approved by Office of Management and Budget on Oct. 21, 2019.  This edition of the form replaces all other forms and should be used immediately for all new hires and reverifications.  The previous edition of the Form (with Rev. 07/17/2017 N in the lower left corner) remains valid for 60 days.  Thereafter, only the new edition of the form is acceptable.

The new edition of the form is available in fillable PDF format, print format and in Spanish on USCIS’ I-9 Central website.  (Note that the Spanish form may only be executed by employers in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide only but must complete the English version of the Form.)  The associated instructions and the Form I-9 Supplement, Preparer and/or Translator Certification, have both also been updated.

Employers should begin using the updated form as of Jan. 31, 2020, however, use of the new edition is not mandated until April 30, 2020 to provide employers with sufficient time to adjust their practices.  Employers can confirm that they are using the current and correct edition of the form by checking the form date in the lower left corner, which should read 10/21/2019, and the expiration date in the upper right corner, which should read 10/31/2022.

This new edition contains minor changes to the form and its instructions:

Change the Form (Fillable PDF Version only):  Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes.

Changes in the Instructions:

  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarification on acceptable documents
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  Beginning April 30, 2020, employers must use the new edition of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation.  Employers should not complete new Forms for existing employees who do not require re-verification.

A best practice would be for employers to begin using the new edition of the form immediately, but employers may continue using the prior edition of the form until April 30, 2020.  After that date, only the form with the 10/21/2019 date (located on the lower left corner of the form) may be used.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP.  For nearly 25 years, Catherine’s practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academia.  Her practice covers the United States and Consulates worldwide.  Catherine is based in our Pittsburgh, Pennsylvania office.  You can reach Catherine at 412-391-1334 or cwadhwani@foxrothschild.com.

Learn more about Fox Rothschild’s Corporate Immigration Practice here and what else we can do for you here.