Completing Form I-9 for Employees with Extended Work Authorization

Notice: The govDelivery message dated January 4, 2021 had an incorrect form number and subject line. Please see the corrected message below.

When completing Form I-9, employees may choose to present their unexpired Form I-766, Employment Authorization Document (EAD) with Category code of C33 that was issued on or after July 28, 2020, along with an I-797 Extension Notice issued by USCIS that shows a one-year extension of their deferred action and work authorization under Deferred Action for Childhood Arrivals (DACA). In Section 1, employees may enter the end validity date from the notice in the “Authorized to Work Until” field.

If your employee presents this document combination, you must enter the end validity date from their notice in the Expiration Date field in Section 2. Enter DACA Ext. in the Additional Information field.

You may reverify a current employee before reverification is required if they present this document combination to you. Enter the end validity date from their notice as the Expiration Date in Section 3. Enter DACA Ext. in the Additional Information field in Section 2.

USCIS will now replace the sticker that is currently issued to lawful permanent residents (LPRs) to extend the validity of their Form I-551, Permanent Resident Card (PRC or “Green Card”) with a revised Form I-797, Notice of Action for Form I-90, Application to Replace Permanent Resident Card. LPRs file Form I-90, when their Green Card expires or are about to expire.

The revised I-797 receipt notice, together with an applicant’s PRC (Permanent Resident Certificate), will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the face of the Green Card. The revised I-797 receipt notice, together with an applicant’s PRC, will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the face of the Green Card.

Applicants with expiring Green Cards will no longer receive a sticker from the Applicant Support Center (ASC) at their biometrics appointments to obtain temporary evidence of LPR status. Instead, USCIS will send applicants a revised Form I-797, Notice of Action, the receipt notice for Form I-90, as proof of the extension of their Green Card.

For more information: Please see the Replace Your Green Card page for more information. For questions specific to employment, please see I-9 Central

The Biden administration’s immigration reform bill will have a provision that seeks to replace the term “alien” with “noncitizen” in immigration law.

This new proposal to improve the way we refer to people who move to the U.S. from other countries is a welcome start and an important signal from the new administration. It is not the first time that a bill has proposed to make this change in terminology.

For more, refer here

The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

• Clarifies and improves longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enables U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.

• The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.

• Establishes a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.

• The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

• Eliminates the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

• Clarifies various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

By:  Allison McDonnell, ICG Content Coordinator

President-elect, Donald Trump, will take office as the United State’s 45^th president on January 20, 2017.  Trump ran his presidential campaign from a clear anti-immigration platform.  His ten-point plan, which includes limiting legal immigration, could have substantial effects on business immigration in the U.S.  However, it is still too soon to tell exactly which stances Trump’s administration will, or will be able to, follow through on.  Changes on the business-related immigration side are likely to come in incremental stages and later on, as his first priority will be undocumented immigrants with criminal records.

H-1B Visa Program

Throughout his campaign, Trump spoke out against the H-1B visa program, arguing that it is an abused process used to replace American workers with cheap labor.  He claimed several times that his intentions are to end the program completely.  However, experts say that the program will more than likely not be eradicated, but simply reformed.  For one, Trump, himself, understands the value of high tech global talent.  In addition, the fact that he desires a strong relationship with India, whose tech workers are among the largest group of beneficiaries of the H-1B program, will likely keep him from abolishing the program all together.  With popularity of reform from several congressmen and Trump’s base, it is likely that smaller caps and more stringent qualifications will be imposed.

E-1 and E-2 Treaty Trader and Investor Visas

Trump has been less vocal about planned changes to employment-based visas outside of the H-1B visa.  While it is likely that Trump will make major reforms to the H-1B program, we could also see some changes to the E-1 and E-2 visa classifications, given that they are increasingly the second-best option behind the H-1B visa for many immigrants.  For one, a tougher application of legal standards in immigration court and in consular processing may be applied to all visa categories.  In addition, caps could be implemented, which may be country-specific.  However, since a key part of the E-2 visa program is job creation, it could quite possibly go the other way, with the category growing in number.

Employment Eligibility Verification:  I-9 and E-Verify Programs

Considering employment draws immigrants to the United States, it is likely that we will see stricter enforcement of the Form I-9 verification process under Trump’s presidency.  Starting next year, there will likely be more ICE officers and immigration judges hired to expedite cases.  This increase in staff may lead to an increase in the number of worksite inspections for I-9 compliance.  It is also possible that there will be an increase in penalties and fines for any violations uncovered.  Therefore, it is important for employer’s to ensure that their paperwork, policies, and practices are in order in case of an audit.  Given that Trump may overturn President Obama’s Deferred Action for Childhood Arrival (DACA), employers also need to be aware of which of their current foreign-born employees may become immediately undocumented and take proper action.

Trump has consistently applauded the E-Verify process for its systematic ability to filter out unauthorized employment.  In his position paper on immigration, he would mandate that the E-Verify process be used across the U.S.  Although, Trump will likely meet the same resistance as Congress has in the past, when it tried and failed several times to implement mandatory E-Verify.  That being true, Trump may still be able to strengthen or increase the program through unilateral executive orders.

In Closing

Although it is still too soon to tell precisely which of Trump’s campaign promises he will have the time, resources, or support to follow through on, it is a good idea to be informed and alert to the timing and the next steps required concerning your immigration matters and remain proactive, both as an employer and employee.  If you haven’t moved forward on a viable case, we would recommend that you meet with immigration counsel to prepare for the upcoming months under the new administration.  You can contact our office here.

On Nov. 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification.  Employers may continue using Form I-9 with a revision date of 03/08/2013N  through Jan. 21, 2017.  By Jan. 22, 2017, employers must use the revised form.

Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9. Refer here for more information.

Remember to login to our webinar on Wednesday Nov. 16^th, 3pm EST/12pm PST for training on the new I-9 form:  http://www.immigrationcompliancegroup.com/webinars2016/ and save the date for the E-Verify webinar as well on December 15, 2016.

USCIS is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States. 

Read the advance version of the notice of proposed rulemaking: International Entrepreneur Rule. Once the notice of proposed rulemaking is published in the Federal Register, the public will have 45 days from the date of publication to comment. To submit comments, follow the instructions in the notice.

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.  Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

• Who have a significant ownership interest in the startup (at least 15 percent) and have  an active and central role to its operations;
• Whose startup was formed in the United States within the past three years; and
• Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
  • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
  • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
  • An applicant who partially meets one or both of the above criteria can be considered if he or she provides “additional reliable and compelling evidence” that his or her entry would provide a “significant public benefit to the United States” and which would validate the entity’s “substantial validation of the entity’s substantial potential for rapid growth and job creation.”

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States.  A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.  If an applicant meets these criteria, the applicant, as well as his or her spouse and minor, unmarried children may be considered under this rule for a discretionary grant of parole for up to two years.  Spouses will receive open-market (unrestricted) work authorization.  Applicants will be allowed to be considered for re-parole for an additional period of up to three years if they can show that the start-up has shown signs of “significant growth” since the initial grant of parole and the start-up continues to have substantial potential for rapid growth and job creation.  The grant of additional parole will be to work with the same start-up for 3 additional years, for a total maximum period of parole of five years. No more than three entrepreneurs may receive parole per start-up, including their spouses and children. As with initial parole, the grant is discretionary and may be revoked for the same reasons as an initial grant.

Applicants for this type of parole benefit will file a new type of application form specifically tailored for entrepreneurs along with a proposed application fee of $1200. Applicants would also provide biometrics.  Entrepreneur parolees will be authorized to work incident to status and will be able to work with an I-94 and a passport. The Form I-9 regulations are being changed to recognize this.

More details here

Great News! USCIS announced a final rule expanding the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and now  lawful permanent residents (LPRs), who are statutorily eligible for immigrant visas, to more easily navigate the immigration process.

The rule announced today, which goes into effect on Aug. 29, 2016, expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. USCIS expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks.

The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver.  These changes will go into effect along with the final rule.  The updated form will be posted on USCIS’ website at uscis.gov/i-601a on August 29, 2016.

Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016.  If you do so before that date, USCIS may deny the application.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.
Federal Register: https://www.gpo.gov/fdsys/pkg/FR-2016-07-29/pdf/2016-17934.pdf

This rule implements as an inflation adjustment fines for employing unauthorized workers for Form I-9 paperwork violations, and for immigration-related discrimination. These new fines increase the penalties from 35% to 96% depending on the nature and severity of the violation.

We encourage you to review your policies, procedures and your Form I-9 inventory.  Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.

Refer here for the details.

The OSC publishes responses to  TAL Letters (Technical Assistance Letters) that they receive from attorneys, employers and other stakeholders.  USCIS identifies this circumstance in the I-9 Employer Handbook as an employee who comes forward and indicates that their identity is now different than previously represented (Hmm…)  and now wants to “regularize” their employment record.  Or, what do you do if you become aware, for instance, that a social security number associated with a particular employee was not legally assigned?

Discussion starts on page 2.

OSC’s TAL implies that if an employer has not consistently-followed a policy of terminating individuals for providing false information during the hiring process, it couldn’t use that policy to justify a termination in this particular scenario.  Even if the employer did consistently terminate individuals who were dishonest during the hiring process, OSC implied that this was not necessarily a slam dunk argument either. It is important to note that OSC did not commit itself by concluding that such a termination under the circumstances would not constitute discrimination or be deemed to be a valid legitimate non-discriminatory reason for termination. It simply stated it would depend on the facts and circumstances.  Before you go down this road, remember –the USCIS Handbook for Employers provides that “Where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment.”

There’s also guidance regarding this for DACA employees that you might wish to review.  For more on I-9 compliance please refer to our Employer Resource Center