Yesterday, June 22, 2020, President Trump issued the anticipated Proclamation suspending the entry into the US of certain nonimmigrant visa holders.  Specifically, the following new restrictions are in effect 6/24/2020:

  • The executive order applies to foreign nationals who seek to enter the United States in H1B, H-4, H2B, L-1, or L-2 status (as well as all accompanying or following to join family members).
  • The order also applies to those requesting admission in J status “…who are participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien.”
  • The executive order does NOT apply to anyone who is in the United States as of the effective date of the order (12:01 a.m. eastern daylight time on June 24, 2020)
  • The order does NOT apply to anyone who has a valid nonimmigrant visa as of the effective date.
  • The order does NOT apply to anyone who has “…an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.”
  • The order does NOT apply to any alien whose entry would be in “the national interest”, lawful permanent residents of the US, those providing temporary labor or services essential to the US food supply chain, law enforcement, diplomacy, provision of medical care to individuals with COVID-19 who are hospitalized, and research at US facilities to help combat COVID-19.
  • Notably, there is a section calling for the removal of any foreign national who circumvents the proclamation through fraud, willful misrepresentation, or illegal entry.
  • This executive order is scheduled to remain in place through December 31, 2020, and may be extended beyond that date.

This means if you are an employer with an employee abroad who was expecting to obtain an L-1 or H-1B visa in the coming months (including those individuals who are waiting for approval of their H-1B visas under the cap/lottery) you should expect that the employee will not be able to return to the U.S. until January 2021 at the earliest, even if in possession of an approved visa petition.

Beyond the language of the EO itself, individuals who are exempt and plan to enter the U.S. soon, should be prepared to be challenged at the port of entry.  Individual immigration officers at the port of entry may or may not fully understand the details of the order, or the exceptions, and it would not be surprising that if a few try to apply it too broadly or too aggressively.

Please contact any member of the Fox Rothschild immigration practice to discuss the specifics of the Presidential Proclamation and how it affects you or your workforce.

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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.  Ms. Bahal is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Ms. Bahal 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, Ms. Brodie’s practice spans the United States and reaches Consulates worldwide.  You can reach Ms. Brodie at (303) 446-3854 or (424) 249-1759 or at abrodie@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For nearly 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

The U.S. Department of Homeland Security (DHS) announced an extension of restrictions limiting non-essential travel at U.S. land ports of entry with Canada and Mexico for an additional 30 days. The government indicates the travel restrictions have been successful in reducing the spread of COVID-19 while still maintaining essential trade and travel. The travel restrictions, after having been extended multiple times, were previously set to expire on June 22, 2020. Non-essential travel includes travel that considered tourism or recreational in nature. Essential travel is permitted and this includes a variety of activities including work, study, health/medical care services, critical infrastructure support, etc. U.S. Citizens, lawful permanent residents, and those with valid travel documents returning to the U.S. are exempted.

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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 (424) 249-1759 or at abrodie@foxrothschild.com.

 

 

U.S. Immigration and Customs Enforcement (ICE) announced on June 16 that it will provide a 30-day extension to its temporary policy allowing flexibility in the rules related to Form I-9 for employers operating 100% remotely in light of COVID-19. The new expiration date for these accommodations is July 19, 2020.

In May, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

On March 19 due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This provision was implemented for 60 days and was set to expire on May 19. On May 19, DHS extended this policy for an additional 30 days, until June 18. Our prior blog post provides additional documentation information and instructions.

Employers who were served notices of inspection (NOIs) by ICE during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers. This will be the final extension relative to NOIs served by ICE during the month of March 2020. See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see the COVID-19 webpage for more information.

DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed.

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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.

On May 29, 2020, President Trump issued yet another immigration-related Executive Order.   This one is entitled, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” and can be found here.

The proclamation goes into effect today, June 1, 2020, and its stated purpose is to restrict certain Chinese nationals from entering the United States on F Student visas or J Exchange Visitor visas associated with entities in the People’s Republic of China (PRC) that implement or support China’s “military-civil fusion strategy”.

The Proclamation applies to graduate level students and researchers from the PRC applying for visas or seeking entry into the U.S. who:

(A) receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or (B) have been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s military-civil fusion strategy.

Additionally, the Secretary of State will also consider whether the visas of PRC nationals already in F or J status, to which the executive order would otherwise apply, should be revoked pursuant to INA section 221(i).

The order excluded the following individuals:

  1. Any Lawful Permanent Resident of the United States;
  2. Any alien who is the spouse of a U.S. Citizen or U.S. Lawful Permanent Resident;
  3. Any alien who is a member of the U.S. Armed Forces or who is the spouse or child of a member of the U.S. Armed Forces;
  4. Any alien whose travel falls within the scope of Section 11 of the United Nations Headquarters Agreement;
  5. Any alien who is studying or conducting research in a field involving information that would not contribute to the Chinese military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security;
  6. Any alien whose entry is important for U.S. law enforcement objectives;
  7. Any alien whose entry would be in the national interest.

The short-term and long-term impact of the Executive Order on the STEM fields in general and diplomatic relations between the two nations is now in question.   Chinese students should speak to their Student Advisors regarding this new Executive Order and how it will impact their ability to study in the United States.

Mr. Harley is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  Mr. Harley’s practice covers the United States and Consulates worldwide.  Mr. Harley is based in our Pittsburgh, Pennsylvania office.  He can be reached at mharley@foxrothschild.com or at 412-391-2418.

 

On Friday, May 29, 2020, U.S. Citizenship and Immigration Services (USCIS) announced plans for the phased-in resumption of premium processing for eligible I-140 Immigrant Petition for Alien Worker petitions and eligible I-129 Nonimmigrant Worker petitions. (See USCIS website at https://www.uscis.gov/news/alerts/uscis-resumes-premium-processing-certain-petitions.)

USCIS temporarily suspended premium processing availability for all eligible Form I-129 and I-140 petitions on March 20, 2020, due to the coronavirus (COVID-19) national emergency.  After nearly two months without premium processing, this is welcome news. Of course, the announcement includes a caveat–USCIS may change its phase-in plans as needed based on the circumstances.

An appropriately prepared and filed Form I-907, Request for Premium Processing Service packet continues to be the means for upgrading a pending petition or to concurrently request premium processing for an upcoming filing.

According to USCIS’s announcement, the resumption of Premium Processing is planned to occur in phases during the month of June and USCIS will accept I-907s as follows:

  • Effective Monday, June 1:  I-907s accepted for all eligible Form I-140 petitions.
  • Effective Monday, June 8:  I-907s accepted for certain I-129 petitions filed before June 8 and pending, including:
    • Cap-Exempt H-1B petitions (e.g., those filed by cap-exempt petitioners and for beneficiaries previously counted toward the numerical limits); and
    • All other (non H-1B) I-129 petitions for eligible nonimmigrant classifications such as for L-1 Intracompany Transferees, E Treaty Traders and Investors, O-1 Aliens of Extraordinary Ability, etc.
  • Effective Monday, June 15:  I-907s accepted for Cap-Exempt H-1B petitions filed after June 8 with a concurrently filed request for premium processing, including those exempt from the H-1B Cap because:
    • The employer is cap-exempt or the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a non-profit research organization or a governmental research organization); or
    • The beneficiary is cap-exempt based on a J-1 Physician Conrad/IGA waiver under INA section 214(l).
  • Effective Monday, June 22:  I-907s accepted for all other I-129 petitions, including: 
    • All FY-2021 H-1B Cap-Subject petitions (e.g., including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s.)
    • All other I-129 petitions for eligible nonimmigrant classifications with a concurrently filed I-907.
  • Pre-March 20, 2020 Premium Processing Requests:
    • Petitioners whose pre-March 20 premium processing requests relating to eligible I-129 and/or I-140 petitions received no action and for which the premium processing fee was refunded may refile their Form I-907 Request for Premium Processing Service following the announced timings—and keeping in mind that USCIS may announce date changes at any time in the future.
    • For Petitioners whose pre-March 20 premium processing requests otherwise remain pending, the USCIS announcement states that the Agency will continue “to process any petition with a previously accepted Form I-907, in accordance with the premium processing service criteria.”

Now is the time to prepare, file, etc.  As mentioned, the dates set forth are subject to change so it’s important to watch for updates as USCIS takes on more premium processing requests. USCIS will announce date changes accordingly.

Ms. Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For nearly 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com or at 412-394-5540.

 

 

On May 27, 2020 U.S. Citizenship and Immigration Services announced that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.  Routine in-person services at USCIS field offices, asylum offices and application support centers (ASCs) has been suspended since March 18 to help slow the spread of coronavirus (COVID-19).  USCIS is following the Centers for Disease Control and Prevention’s guidelines to protect our workforce and the public.  As services begin to reopen, offices will reduce the number of appointments and interviews to ensure social distancing, allow time for cleaning and reduce waiting room occupancy.

Appointment notices will contain information on safety precautions that visitors to USCIS facilities must follow.  The status of any particular office may change at a moment’s notice, so USCIS recommends that you check their USCIS Office Closings and Field Offices pages for up to date information about office closures or changed hours.  Specifically, USCIS requests that all applicants check these pages on the day and before visiting a USCIS office for a scheduled appointment.  USCIS also requests that any applicants who feel sick do not attend a scheduled appointment.  Instead, applicants should follow the instructions on the appointment notice to reschedule the appointment.  There is no penalty for rescheduling an appointment due to illness.  All individuals who appear at a USCIS office are required to follow all safety precautions (see below).  While certain offices are temporarily closed, USCIS continues to provide limited emergency in-person services.  Individuals may locate USCIS contact information on the USCIS Contact Center page to obtain emergency services.

Interviews and Appointments

USCIS will send notices to applicants and petitioners with previously scheduled appointments and interviews.  Those attending appointments must follow the safety guidelines outlined below.  Any individual with an appointments should confirm that the USCIS where they plan to appear remains open and available for the appointment immediately before appearing.  Visitors are limited to the applicant, one representative, one family member and one individual providing disability accommodations. The applicant should arrange to have their interpreter available by phone.

Application Support Centers

USCIS will automatically reschedule any necessary ASC appointments that were cancelled due to the temporary office closure.  Those attending appointments must follow the safety guidelines outlined below.  Individuals who appear at a date or time other than what is listed on the ASC appointment notice may encounter significant processing delays, except for military members.

 Naturalization Ceremonies

USCIS will send notices to applicants to reschedule postponed naturalization ceremonies.  The ceremonies will be shorter to limit exposure to those in attendance, but all legally required portions of the ceremony will take place.  Instead of playing videos during naturalization ceremonies, attendees will receive a flyer with information and links directing them to the videos on the USCIS Naturalization Ceremonies page for advance viewing.  Attendance will be limited to the naturalization candidate and individuals providing assistance to disabled persons.

Asylum Offices

USCIS asylum offices will automatically reschedule asylum interviews that were cancelled during the temporary closures.  When USCIS reschedules the interview, asylum applicants will receive a new interview notice with the new time, date, and location for the interview and information about safety precautions.

In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room.  Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative can fully and safely participate in the interview while maintaining social distancing.

For affirmative asylum interviews, applicants must bring all immediate family members listed as dependents on the application and an interpreter, if the applicant does not speak English.  Additionally, a representative, witness, individual providing disability accommodations, or “trusted adult” if an applicant is a minor, may attend the interview.

For non-detained credible or reasonable fear interviews, individuals must bring any family members listed on the interview notice.  Representatives may attend credible and reasonable fear interviews but are encouraged to participate telephonically.  USCIS will provide contracted, professional interpreters for credible and reasonable fear interviews.

SAFETY GUIDLINES FOR ENTERING USCIS FACILITIES:

  • Visitors may not enter a USCIS facility if they:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points.
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities.  Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph.  There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals are encouraged to bring their own black or blue ink pens.

See uscis.gov/visitorpolicy and uscis.gov/coronavirus for more information.

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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.

 

On May 11, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum relating to certain J-1 waivered foreign medical graduates during the COVID-19 national emergency. The memo, captioned “Temporary Policy Changes for Certain Foreign Medical Graduates During the COVID-19 National Emergency” was issued solely as guidance to USCIS officers with regard to H-1B physicians who received and are fulfilling either an Interested Government Agency (IGA) waiver or Conrad 30 waiver. Relating to the COVID-19 pandemic, the memo addresses two issues: (1) failure of these physicians to maintain a full-time work schedule, and/or (2) their provision of telehealth services.

More specifically, the temporary policy changes include the following:

  • Effective January 27, 2020 – end of the Public Health Emergency
    • “USCIS officers will not consider…a failure [of the physician] to work full-time to be a failure to fulfill” the contractual full-time work requirement if the physician is “temporarily unable to work full-time due to quarantine, illness, travel restrictions or other consequences of the pandemic during the declared Public Health Emergency period…”
      • The memo notes that this temporary flexibility is limited and “only relates to the [physician’s] eligibility for future immigration benefits that would be affected by the re-imposition of the 2-year home residence requirement” resulting from a contract violation.
      • The memo does not grant a reprieve to employers with regard to H-1B requirements; these responsibilities remain in effect even during the effective dates of the temporary flexibility policy. As such, affected employers should consult qualified legal counsel before making any material changes in the terms and conditions of the physician’s employment, including but not limited to a COVID-19 related reduction in hours below full-time.
  • Effective May 11, 2020 (i.e., the publication date the memo) – end of the Public Health Emergency
    • USCIS will allow IGA and Conrad waivered physicians to provide “telehealth” services during the COVID-19 Public Health Emergency (but see below).
    • Other than VA physicians, affected physicians must continue to provide medical services (even if telehealth) “through their contracting facility” located in the shortage area or, under the Flex 10 program, to patients who reside in a designated area.
    • Only affected VA physicians may “provide telehealth services to patients outside of the state of their contracting facility”(!)
    • USCIS “will not interpret the provision of such telehealth services to be a failure to fulfill” the terms of the employment contract under the statutory section–which is good because telehealth is still patient care and likely much-needed in shortage areas, especially now due to social-distancing measures.
    • An employer that offers an affected foreign medical graduate the option to provide telehealth services from home, must offer the same option to its similarly employed US workers.

While the memo may seem straightforward, it raises questions. As such, affected employers and/or physicians should seek fact-specific legal advice to address their issues at the earliest possible time.

Ms. Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For nearly 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  Ms. Wadhwani is based in our Pittsburgh, Pennsylvania office.  She can be reached at cwadhwani@foxrothschild.com or at 412-394-5540.

On Thursday, May 14, 2020, U.S. Immigration and Customs Enforcement (ICE) announced a 30-day extension to its previously announced temporary flexibility provisions relating to I-9 Employment Eligibility Verification compliance during the COVID-19 national emergency. Extension of the flexibility provisions is the result of “continued precautions related to COVID-19”. The COVID-19 I-9 flexibility provisions were originally valid for only 60 days and were set to expire on May 19, 2020.

For eligible employers, the temporary flexibility measures defer the statutory physical presence requirements for the in-person review of an employee’s identity and work authorization documentation in the employee’s presence.

In addition, the notice granted an additional 30-day extension, to the prior 60-day extension, to employers who received notices of inspection (NOIs) in March 2020 and had not already responded.

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

On April 27, 2020 United States Citizenship and Immigration Services (USCIS) released a new version of the Handbook for Employers, Guidance for Completing Form I-9 (M-274).  The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employ­ers’ understanding and knowledge of the various employment eligibility verification obligations.

The new version of the M-274 was released in connection with its release of the new version of the Form I-9, Employment Eligibility Verification (rev. 10/21/19 on bottom left), which became mandatory on May 1, 2020.  See our post on this topic for additional information.  Here we will highlight some of the most import­ant changes to the M-274.

Automatic EAD Extensions

The most significant change to the M-274 revolves around the process for documenting the automatic extension of Employment Authorization Documents (EAD) for certain foreign national employees working in the U.S.  An automatic EAD extension is a fairly new concept, which was brought about by a Department of Homeland Security (DHS) rule that provides additional benefits and flexibility to high-skilled nonimmigrant workers in the U.S.  Under this rule, EADs can be automatically extended for up to 180 days for certain individuals who timely filed to renew an EAD that is in the same category as the previous EAD.

The updated M-274 describes the various categories of foreign nationals currently eligible for these auto-extended EADs and sets out the process for reviewing the appropriate documentation and recording the information on the Form I-9, which involves updating both sections 1 and 2 to reflect the auto-extended date.  The review process has been outlined in further detail than previously, requiring employers to more carefully review the underlying documentation (both the EAD and the receipt notice showing the renewal filing) to make sure the individual fully qualifies.  There is also a description of how auto-extended EADs should be completed on the Form I-9, including the auto-extended EAD rule on reverification, refugees and asylees, nonimmigrants requesting extensions of stay, accepting an expired document and when employment authorization expires.

Additional I-9 Rules for Certain Foreign National Employees

In addition to the automatic EAD provisions, the updated M-274 features several other changes that will impact employers when hiring foreign national employees that have temporary work authorization.

  1. E-Verify STEM: The USCIS now explicitly notes (in keeping with its recent guidance) that employers must use E-Verify at the specific hiring site where it employs an F-1 STEM student who received a 24-month extension of their optional practical training.
  2. F-1 students in CPT:An acceptable Form I-20 for F-1 students in curricular practical training (CPT) must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer’s name and location.
  3. H-1B extensions:In the context of documenting an H-1B extension and the 240-day automatic work extension, the updated M-274 also indicates the following that, “your employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation. Write in the new date that the automatic extension of employment authorization ends.  Initial and date this update in the margin of Section 1.”
  4. Extensions of stay:The updated M-274 also includes new instructions relating to documentation that must be maintained when filing an extension of stay for a qualifying employee. Specifically, it indicates: “After you receive the I-797C, Notice of Action, which bears the amount of the filing fee submitted and acknowledges USCIS’ receipt of the new Form I-129 petition, it is not necessary to maintain a copy of the Form I-129 application, proof of payment, and mailing receipt for Form I-9 purposes.  You should retain the I-797C, Notice of Action to show that you filed for an extension of stay on the employee’s behalf.”

Form I-9 Retention

The updated M-274 also includes a new provision relating to the retention of I-9s for employees who never started work for pay.  Specifically, the USCIS indicates:

“Employers must retain a Form I-9 for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hired, the hired employee never completes work for pay, or never finishes the Form I-9.” (emphasis added)

Based on this new information in the M-274, USCIS appears to be stating that employers need to retain I-9 forms for all employees, re­gardless of whether or not they ever start work or receive a paycheck.  This new instruction, however, is at odds with the regulations at 8 CFR 274a.2, which define an employer’s I-9 obligation limited to indi­viduals who provide services or labor for wages or remuneration.  An individual who never starts work for pay would arguably not fall into this category (and thus no I-9 obligation exists).  Moreover, officials from Immigration and Cus­toms Enforcement (ICE) have previously noted that an employer is not required to retain a Form I-9 for an individual who never starts work for pay, and thus would not be required to produce the I-9 in the event of an inspection.

Given the apparent contradiction between this new guidance and the regulations, employers are advised to work with their legal counsel before adopting any strategies regarding the retention (or destruction) of I-9s for individu­als who never started to work for pay.

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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.

This is a reminder that employers are required to use the new version of the Form I-9 as of May 1,2020.  As noted in our prior post, USCIS announced the publication of the new version of the Form I-9 on January 31, 2020, with a 60-day grace period for its mandatory use.  Accordingly, the new version of the went into effect on May 1, 2020 and all prior versions of Form I-9 are no longer be valid for use and are obsolete.

It is important that employers do not lose track of the requirement to use the new edition of the Form I-9 among the myriad of DHS announcements regarding changes or relaxation of requirements relevant to completing the Form I-9 and verifying identity and employment eligibility due to the COVID-19 pandemic.

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 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.

In addition, on April 27, 2020, USCIS released a revised M-274, Handbook for Employers: Guidance for Completing Form I-9, with expanded information on properly completing Form I-9, Employment Eligibility Verification.  The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employ­ers’ understanding and knowledge of the various employment eligibility verification obligations.  Please refer to my upcoming post on this topic for additional information.

As a reminder, as noted in my prior post on this topic, on March 20, 20 DHS Announced Flexibility in Requirements Related to Form I-9 Compliance, allowing employers to inspect Section 2 documents remotely (e.g., over video link, fax or email, etc.) for purposes of completing Section 2.   Employers must continue to adhere to the three business day requirement and also conduct a physical inspection of the original documents once normal operations resume.  This flexibility policy is currently in effect until May 19, 2020, at a minimum (and may be extended), or within three business days after the termination of the National Emergency, whichever comes first.

Also, on May, 1, 2020, DHS announced Temporary flexibility for List B documents for Form I-9, Employment Eligibility Verification and in E-Verify, allowing identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, to be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.  See my prior post on this topic for additional information.

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 May 1, 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.

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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.