On August 19, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that due to delays in production of certain Employment Authorization Documents (EAD’s – Form I-766) that employees may use Form I-797, Notice of Action as valid List C #7 document for Form I-9 purposes. To be valid, the Notice of Action must have a notice date on or after December 1, 2019 through and including August 20, 2020. If an employee presents a Form I-797, Notice of Action as a List C document, then the employees MUST also present a List B document. The Form I-797, Notice of Action is NOT evidence of someone’s identity and cannot be used as a List A or List B document.
Employees may present and employers may accept the Form I-797 Notice of Action showing approval of the employee’s I-765 application as a list C document for Form I-9 compliance until December 1, 2020. By December 1, 2020, employers must reverify employees who presented a valid Form I-797, Notice of Action. Those employees can either provide a List A document or a different List C document for the reverification process.
Additionally, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension to the flexibility policy for employers and workplaces that are operating remotely which we previously reported on this past March. The extension of the policy is valid through September 19.
U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.
The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.
Here are six situations I am helping clients navigate.
Work-from-Home Effect on H-1Bs
U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern work world’s innovations. They prefer brick-and-mortar offices as evidence H-1B employees are working.
On a temporary basis, given our reality in many states, H-1Bs working from home is okay within certain parameters. However, if work from home were to become a permanent change, it could jeopardize their status.
Compliance for H-1B Employees Working from Home
H-1B employees working from home need to post the company’s Labor Condition Application (LCA) notice in their home for 10 consecutive days and complete the posting sheet. The posting sheet must then be sent to the employer and placed in the employer’s Public Access File.
Though this procedure sounds silly, it is important to comply with USCIS regulations.
Work and Pay Reduction Effects on H-1Bs
Clients have asked if they can reduce all of their employees’ hours by 20 percent to avoid work force reductions and have their H-1Bs remain in good standing.
The answer is it depends.
If a wage range was listed on the LCA, it will work.
Otherwise, pay reductions would still need to maintain the prevailing wage or risk violating Department of Labor (DOL) regulations and incurring fines. Pay reductions will require filing a new LCA.
Depending on the person’s salary, a ten percent reduction may not negatively impact the H-1B visa holder’s status.
Work Force Reduction Effect on H-1Bs
H-1B status is based on continuous employment during the visa’s duration. Loss of a job jeopardizes the visa. If terminated from the job, the H-1B employee has 60 days to find another one and to amend the H-1B before losing status.
Employers who decide to terminate an H-1B employee must notify the employee and USCIS and offer the employee the reasonable cost of return transportation.
Application Filing During COVID-19
We are in the midst of H-1B filing season and are continuing to file L-1s, Employment Authorization Documents (EADs) and green card applications on behalf of clients.
All applications require a “wet signature,” meaning the applicant signs with ink and there is evidence the application is original, like having an indentation on the reverse side where the pen was pressed into the paper.
For the moment USCIS is accepting copies of wet signatures, but I am having clients send the originals as well just to be ready for any inquiries. E-signatures are not the same and are not accepted.
USCIS’s preference for brick-and-mortar offices to show green card applicants are gainfully employed makes applying for a green card dicey right now. I’m advising clients who can wait to do so.
For others who may be nearing the end of their 6-year H-1B stay, I am helping them assemble the best application possible given the circumstances.
Travel During COVID-19
Many embassies and consulates have reduced or suspended visa processing services. Some posts are starting to accept appointments for late July/early August, such as the U.S. Embassy in London and the U.S. Consulate in Frankfurt.
Acquiring passport photos has become difficult. Walmart is now offering a service where you can upload photos taken following U.S. federal guidelines and they will print them for you to pick up.
Visa holder clients who had been planning to travel because their status was expiring have had to file with immigration because they can’t leave. Clients and their family members who have passports expiring soon have had to get extensions.
Visitors in the U.S. who came via the Visa Waiver Program (VWP), which allows citizens of participating countries to travel to the U.S. for up to 90 days without a visa, have had trouble securing travel for when their 90 days has expired.
The U.S. Custom and Borders Protection (CBP) issued guidance to ports of entry to grant these visitors a 30-day extension via a request for Satisfactory Departure. To avoid jeopardizing their ability to visit the U.S. in the future, VWP visitors need to request Satisfactory Departure before their 90 days expire.
As you can see, the intricacies of immigration regulations coupled with COVID-19 complications require diligence and creative problem solving to keep visa holders in status and applications in process.
On March 20, 2020, the Department of Homeland Security (“DHS”) announced that it would relax its “physical proximity” requirements associated with completion of Section 2 of the Form I-9. Employers can take advantage of this relaxed standard ONLY IF the entire workforce is completely working remotely. If there are employees physically present at the employer’s worksite, there is no exception to the in-person requirement for reviewing original documents for the Form I-9. However, note, DHS will look at the situation on a case-by-case basis if the employee cannot be physically present due to a quarantine or lockdown order. This relaxed standard will be applicable for a period of 60 days from March 20th or within 3 business days after the termination of the National Emergency, whichever comes first.
If the exception applies the employer must do the following to compete Section 2 of the Form I-9 within 3 days of the employee’s first day of work for pay:
Inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.)
Obtain, inspect, and retain copies of the documents
Complete Section 2
After normal business operations resume, the employee and employer must do the following:
Employee must bring in the original documents that were used to support the Form I-9 within 3 business days so the employer may review them.
After the employer physically reviews the document in person, they should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
The employer should also add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
As an alternative, an employer may designate an authorized representative to complete and sign Form I-9 on their behalf. Note the employer is liable for that person’s actions related to completing the Form I-9 and Form I-9 compliance.
USCIS has established new temporary policies that apply to the E-verify process:
Employers are still required to create cases for their new hires within three (3) business days from the date of hire.
Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.
Further, on March 21, 2020, USCIS announced that it is extending the time frame to take action to resolve Social Security Administration (SSA) and DHS Tentative Nonconfirmations (TNCs) due to closures. The employer must notify the employee about their TNC result as soon as possible. After the employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of the employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS.
On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.
This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.
This reminder is the guiding principle for an H-1B preparation strategy this year. A sound strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible.
New changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.
Electronic Registration Process
This year the United States Citizenship and Immigration Service (USCIS) is implementing several changes to the H-1B petition process.
USCIS’s new requirements include that employers register electronically in advance of filing an H-1B petition and pay a $10 registration fee. USCIS officially announced this new process in the Federal Register on January 9, 2020.
Registration will happen via the organization’s myUSCIS online portal. USCIS launched the myUSCIS portal in 2015. The portal currently permits filing of forms such as I-90, N-400, and N-600, but as of this writing has not yet enabled H-1B registrations. The $10 registration fee will be paid on a separate platform, pay.gov.
Since October, the Department of Labor has been using its new Foreign Labor Application Gateway (FLAG) system to accept Labor Condition Applications (LCAs), which need to be in place before filing H-1B petitions.
Three different systems will play a role in the H-1B cap season this year – FLAG, pay.gov, myUSCIS – two of which are relatively new to the process.
Will the systems need to talk to each other? It is not yet known if myUSCIS will be able to see from pay.gov that the registration fee has been paid. As someone who has occasionally been challenged to get my computer to talk to my printer, this question looms in my mind.
H-1B Filing Timeline
Also new this year is USCIS’s schedule for the H-1B filing process.
While lawyers can establish myUSCIS accounts now, USCIS will only accept initial registrations from March 1 – March 20, 2020. Given the newness of the system and the unknown number of registrations that will be submitted, it is prudent to submit registrations during the early part of this time frame.
Between March 20th – 31st, 2020 USCIS promises to conduct the lottery and to inform registrants who have been selected by March 31. Selected registrants then have 90 days beginning April 1 to submit petitions.
USCIS included a clause in the Federal Register that would allow it to suspend the registration requirement if the system were found for any reason to be “inoperable.” If that were to happen, USCIS would likely return to the prior system and accept paper petitions to count toward the cap on a first come first serve basis. That means the cap could be reached in just a few days as in past years.
Paper records ensured the Iowa Democratic Caucus would still be able to tally votes even if it took a long time. And paper could save the day for H-1Bs this year.
On January 31, 2020, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 10/21/2019. This new version contains only minor changes to the Form I-9 itself and to the Form I-9 instructions.
The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until April 30, 2020, employers can use either: (1) the new Form I-9, version 10/21/2019 or (2) Form I-9 with a revision date of 07/17/2017 N. On May 1, 2020 employers must use version 10/21/2019 and no other versions of the form will be acceptable for newly completed Form I-9’s as of that date.
The issuance of a new form I-9 DOES NOT mean that employers must redo previously completed Form I-9’s. As stated, this new version will be used on a going-forward-basis no later than May 1, 2020.
The new Form I-9 and related materials can be found here:
In May, we reported on Illinois becoming the eleventh state to permit recreational marijuana beginning January 1, 2020. Noncitizens in these eleven states and the District of Columbia may reasonably conclude that using marijuana in accordance with state law will have no bearing on immigration status. Unfortunately, that is a wrong assumption. Federal law controls immigration, and it remains a federal offense to possess marijuana. For the unsuspecting foreign national, this is a legal distinction that many will not understand. Customs and Border Protection (CBP) Officers at the nation’s borders are the first line of defense in preventing illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP Officers will continue to enforce the law.
For immigrant marijuana users, federal law prohibits the use
of federal funds to prosecute state-legal medical cannabis, but allows funds to
prosecute state-legal recreational cannabis, thus creating an enforcement
distinction. There will also be increased scrutiny relating to travel outside
the U.S. for green card and Naturalization applicants.
In some jurisdictions such as Colorado, the U.S. Citizenship
and Immigration Service (USCIS) is adding questions to the Adjustment of Status
(green card) interview and medical examination process to determine if a
foreign national uses marijuana or has in the past.
Naturalization eligibility requires the individual to establish “good moral character,” as defined in the Immigration and Nationality Act. A person who engaged in certain conduct as described in the Act is statutorily barred from establishing good moral character. In states such as Washington and Colorado where marijuana has been legal since 2012, the USCIS is aggressively questioning Naturalization applicants regarding marijuana use. For example, a legal permanent resident (LPR) who is applying for Naturalization, and who is in possession of marijuana is barred under federal law from establishing good moral character. The individual will be found to be inadmissible.
Any arriving foreign national who is determined to be a drug
abuser or addict or who is convicted of, or admits to committing acts which
constitute the essential elements of a violation of any law or regulation of
the U.S relating to a controlled substance, is inadmissible to the U.S.
Furthermore, a naturalization applicant who has admitted possessing marijuana
to a federal government official must not travel outside the U.S. The person
may be found inadmissible upon reentry.
There are several legislative efforts afoot in Congress to
resolve the complex issues created by the conflict between federal and state
cannabis laws. In the meantime, though, noncitizens should take a very conservative
Takeaways for noncitizens living in the U.S.:
Never discuss conduct regarding marijuana with a
government official such as a CBP Officer, USCIS, Embassies/Consulates abroad,
If you live in a state that legalized marijuana
consumption, do not use it until you are a U.S. citizen;
Do not carry a medical marijuana card, pot
related stickers, T-shirts, or paraphernalia, and delete any mention of
marijuana on social media; and
If you’ve worked in the marijuana industry, obtain
legal counsel before leaving the U.S. or applying for Naturalization
Stay tuned for further developments in this growing area of
A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.
The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes from a rigid interpretation of the Department of Labor’s definition of “employer” which reads: “Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee….” Instead of considering any one of these circumstances as qualifying, USCIS effectively changed the “or” to an “and,” requiring all of them.
H-1B visa denial rates skyrocketed the past two years, especially
for contractors working at third-party worksites. Denial rates for initial H-1B
petitions in Fiscal Year (FY) 2018 were 1 % for large technology companies but
34%-80% for companies that put H-1B visa holders at third-party sites.
Third-party site work factors highly in IT consulting.
After having many H-1B visas denied or issued for short
validity periods, several IT consulting firms filed lawsuits against USCIS.
Those lawsuits have been consolidated into one under the aegis of the IT
industry trade association ITServe Alliance.
Judge Rosemary Collyer presided over a court hearing of ITServe
Alliance v. USCIS on 05/09/2019. Plaintiff attorneys produced data showing
from FY 2012 to FY 2017, USCIS approved 94 % of their client’s ERP analysts’
H-1B petitions. During FY 2018 to FY 2019, the approval rate dropped to 19%.
Judge Collyer has taken issue with the disparate visa
approval rates between different industries and USCIS’s requirement that
contractors show three years’ worth of specific work assignments for H-1B
petitioners when they are allowed “nonproductive” time as long as they are
As Judge Collyer considers the case, she will rule on
whether discovery is warranted to find out what has caused the different
adjudications of H-1B petitions. Not only are H-1B approval rates markedly down
for the IT industry, but requests for evidence and H-1B petition processing
times have ballooned.
Requests for evidence (RFE) for all H-1B petitions have
jumped from below 30% in first quarter FY 2017 to 60% in first quarter FY 2019.
Meanwhile the number of petitions approved with a completed RFE has sunk from
80 % to just over 60 %.
Stay tuned as we will continue to provide updates as new
“U.S. Citizenship and Immigration Services” text with American flag in background
We have seen a major increase in 2018 of Form I-9 audits from the Immigration and Customs Enforcement (ICE). First we saw 122 companies audited in California in February 2018. Next, we saw a number of companies in the Chicagoland area and throughout the Midwest receive Form I-9 audits in March 2018. Then, just weeks ago ICE made a number of arrests in the Chicagoland area.
This increase in activity is not showing any signs of slowing. In fact, we anticipate I-9 audits to increase and are aware of ICE hiring additional agents in the Chicago area to assist in the increase of Form I-9 audits.
What should a company do in light of ICE’s increased audits?
First, you need to ensure that your employees responsible for the Form I-9 process understand the Form I-9 requirements. The Form I-9 has changed a number of times over the last couple of years and we are finding that those changes are not necessarily understood by employers. Make sure you are using the most recent form.
Second, you should audit your Form I-9’s, either on your own, or have an attorney assist you to help identify and correct technical Form I-9 errors. A self-audit before ICE arrives can assist in reducing your liability during an ICE audit.
Third, you need to have a plan if ICE audits your Form I-9’s. Your plan needs to include what to do the day ICE arrives along with what to expect from the audit process and potential ramifications on your business.
After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.
President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International Education, with 45 percent of campuses reporting at least some decrease.
I encourage education and university clients, and any employer hiring international students to be calm and take a breath. One thing I have noticed about President Trump’s actions is that they have been very consistent with his campaign promises: border enforcement and bans. He wants to move to a merit-based immigration system similar to Canada and Australia.
If the U.S. does move to a merit-based immigration system, international students may gain an advantage. A merit-based system is point-based and prizes highly educated immigrants. Who would be better positioned than those who gained a U.S. college education?
In fact, Sen. Orrin Hatch and Sen. Jeff Flake introduced a bill in the U.S. Senate last week, the Immigration Innovation (I-Squared) Act of 2018, to allow as many as 195,000 H-1B visas. The proposal would increase the number of H-1B visas by 110,000 (from 85,000), while awarding U.S. advanced degree-holders expanded priority in the selection process.
As colleges regroup to recruit internationally in this context, it is recommended that they approach prospects with an eye toward the H-1B visa that international students will ultimately want to apply for. These are students who:
Intend on a STEM major: Engineering majors are the safest bet.
Plan to work in a STEM field or true specialty occupation: Qualifying occupations include doctors, lawyers, teachers and engineers.
Unfortunately, unless a student wants to teach a foreign language, liberal arts students are unlikely to qualify for an H-1B visa.
Colleges may even want to use the possible advantage of U.S. college education in a merit-based immigration system as a recruiting point.
U.S. colleges, universities and employers can weather this intense immigration storm by staying calm and focusing their recruitment on the areas most likely to succeed with visas.
Deferred Action for Childhood Arrivals (DACA) Renewals Resume
As of January 13, 2018, the United States Citizenship and Immigration Services (USCIS) has announced that, due to pending litigation and a federal court order, it is going to resume accepting and processing renewals for DACA recipients including Employment Authorization Documents granting work status. This only applies to DACA recipients who had previously been granted deferred action status and USCIS is NOT accepting first time DACA applications.
USCIS has indicated the following:
If the person previously received DACA and their DACA expired on or after Sept. 5, 2016, the person may still file a DACA request as a renewal request which includes a request for extension of the person’s work authorization.
If the person previously received DACA and the DACA expired before 9/5/16, the person may file a new initial DACA request including work authorization.
Employers should check the USCIS website for additional information, but this is good news for employers and employees as employees on DACA now have an avenue to once again renew their employment authorization and legal work status.
Temporary Protected Status
On November 20, 2017, the Acting Secretary of Homeland Security announced the decision to end Temporary Protected Status (TPS) for Haiti. The transition period is for 18 months and the TPS designation will end on 7/22/19.
On January 8, 2018, the Secretary of Homeland Security announced the decision to terminate the TPS designation for El Salvador. Again, there is an 18 month transition period and the TPS designation will terminate on 9/9/19.
These announcements will eliminate the ability for individuals from Haiti and El Salvador to apply for employment authorization documents and work authorization based on their TPS status.
If a company employs an alien authorized to work, the company must keep track and monitor the date in which an alien’s work authorization expires. These employees require reverification. SeeUSCIS Handbook for employers for more information about reverification of current employees.