Form I-9 Verification During EAD Production Delays Due to COVID-19
On August 19, 2020, United States Citizenship and Immigration Services (“USCIS”) announced that, due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C document that establishes employment authorization issued by the Department of Homeland Security even though the Notice states it is not evidence of employment authorization. Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.
USCIS further provides that the I-797 notice of action described above does not prove evidence of identity or serve as a List A document establishing both identity and employment authorization or a List B document establishing identity for Form I-9 purposes.
For Form I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. The Lists of Acceptable Documents is on Form I-9. Current employees who require reverification can present this Form I-797 Notice of Action as proof of employment authorization under List C.
By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.
ICE Extends I-9 Compliance Flexibility in Rules Related to Employment Eligibility Verification (“Form I-9”)
On August 18, 2020, ICE announced another extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. On March 20, 2020, Department of Homeland Security (“DHS”) previously announced that, due to precautions implemented by employers and employees associated with COVID-19, DHS would exercise prosecutorial discretion to defer the physical presence requirements associated with the Form I-9 under section 274A of the Immigration and Nationality Act. Thereafter, On May 19, June 19 and again on July 18, 2020, DHS extended this policy for an additional 30 days respectively.
Due to the continued precautions related to COVID-19, the Department of Homeland Security (“DHS”) has decided to once again extend this policy for an additional 30 days. The expiration date for these accommodations is now September 19, 2020.
USCIS Runs Second Lottery to Select Additional Registrations for FY2021 H-1B Cap Cases
On August 14, 2020, employers and their authorized representatives began receiving USCIS notifications that new H-1B registrations had been selected for the FY2021 H-1B Cap[1] indicating that the FY2021 H-1B quota of 85,000 had not been reached.
Employers and their authorized representatives should check the status of their H-1B registration accounts by logging onto their USCIS online account. According to USCIS, a registrant’s account will show one of the following four statuses for each registration:
- Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. "Submitted" registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected or Denied.
- Selected: Selected to file an FY 2021 H-1B cap-subject petition.
- Not Selected: Not selected for this fiscal year.
- Denied: The same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year are invalid.
Department of Homeland Security to Continue to Temporarily Limit the Travel of Individuals from Canada and Mexico into the United States at Land Ports of Entry
On August 14, 2020, the Secretary of DHS announced the decision to continue to temporarily limit the travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border as well as to continue to temporarily limit the travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border. Such travel will continue to be limited to “essential travel.” The travel restrictions went into effect at 12 a.m. Eastern Daylight Time (EDT) on May 21, 2020 and will remain in effect until 11:59 p.m. EDT on September 21, 2020.
According to DHS, “essential travel” includes, but is not limited to:
- U.S. citizens and lawful permanent residents returning to the United States;
- Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
- Individuals traveling to attend educational institutions;
- Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada and between the United States and Mexico in furtherance of such work);
- Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
- Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada and between the United States and Mexico);
- Individuals engaged in official government travel or diplomatic travel;
- Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
- Individuals engaged in military-related travel or operations.
According to DHS, the restrictions do not apply to air, freight rail, or sea travel between the United States and Canada or between the United States and Mexico, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Canada and between the United States and Mexico.
U.S. Department of State Announces Additional National Interest Exceptions to Presidential Proclamations 10014 and 10052
On August 12, 2020, the U.S. Department of State announced additional National Interest Exceptions to Presidential Proclamations 10014 and 10052. Proclamation 10052 extends Proclamation 10014, which suspends the entry to the United States of certain immigrant visa applicants, through December 31, 2020. Proclamation 10052 also suspends the entry to the United States of certain H-1B, H-2B, L-1, and J-1 applicants and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas, through December 31, 2020. Both Proclamations include an exception for individuals whose travel would be in the national interest.
Companies and individuals with ongoing or prospective immigration processes and their employees, colleagues or family members who may be affected by these recent immigration developments should consult with counsel on individual situations.
If you have any questions, please contact Gunster Immigration attorneys Sarah Tobocman, Mariana Ribeiro, Beatriz Osorio, and Maria Romero.
[1] This information is based upon the information published by the American Immigration Lawyers Association (“AILA”) on August 14, 2020 on its website (www.aila.org).
