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BAL submitted a public comment to U.S. Citizenship and Immigration Services (USCIS) last week, urging the agency to modernize the Form I-9 process to allow employers to complete employment eligibility verification in an electronic environment.
The comment was submitted in response to a Request for Public Input (RPI) issued in October. U.S. Immigration and Customs Enforcement (ICE) introduced temporary measures early in the COVID-19 pandemic that allow for remote document examination in the Form I-9 process. ICE recently extended the temporary guidance through April 30, 2022.
BAL urged USCIS to develop processes that take into account the rise in remote work.
“Multiple companies that have relied on the temporary ICE policy provided positive feedback to BAL about their experiences conducting verifications remotely,” BAL wrote, adding, “They expressed strong support for making remote verification available permanently, to improve the process for both employers and employees.”
BAL also recommended broader changes to modernize the Form I-9 process, that USCIS update its Lists of Acceptable Documents and that USCIS and ICE continue to issue proactive guidance to employers about I-9 requirements.
The RPI comment period will remain open until Dec. 27. In the semi-annual regulatory agenda published this month, the Department of Homeland Security (DHS) indicated that next year it would publish a notice of proposed rulemaking on “alternative document examination procedures under certain circumstances or with respect to certain employers.”
BAL Analysis: BAL has heard from a number of companies that would like to see remote document verification be available on a permanent basis. DHS will likely take into account responses it receives to the RPI in formulating the proposal included in the regulatory agenda. BAL will continue to monitor for regulatory developments and government guidance relating to the Form I-9 process and will provide updates as information becomes available.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2021 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services (USCIS) has announced that in January it will follow the State Department’s Dates for Filing chart, as published in the January Visa Bulletin, to determine whether employment-based applicants are eligible to file for adjustment of status.
Dates for Filing for Employment-Based Preference Categories:
Additional Information: Family-based applicants may use the applicable Dates for Filing chart for January, except for F2A category applicants, who may use Final Action Dates.
This alert has been provided by the BAL Global Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Priority-date cutoffs will advance slightly or remain the same in key employment-based categories next month, according to the State Department’s January Visa Bulletin.
Key Movements: Final Action Dates
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Dates for Filing
The Dates for Filing chart will remain the same as it was in December.
Dates for Filing for Employment-Based Preference Cases:
Additional Information: U.S. Citizenship and Immigration Services (USCIS) will announce via a web posting whether it will use the Final Action Dates or Dates for Filing chart in January. BAL will update clients once officials confirm whether the chart can be used.
Copyright © 2021 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
BAL joined a group of more than 40 companies this week in urging a federal appeals court to preserve Deferred Action for Childhood Arrivals (DACA).
Texas and a group of other states are challenging DACA’s legality in a case now before the Fifth Circuit Court of Appeals. In a friend-of-the-court brief, the companies said that DACA is lawful and that invalidating it would harm U.S. businesses and the economy.
“DACA recipients have helped to drive and sustain the American economy by filling crucial labor shortages, creating new businesses, spending their incomes on American products and services, and paying taxes,” the brief said.
The case is before the Fifth Circuit after a district judge ruled in July that the Department of Homeland Security (DHS) did not follow proper procedures when it created DACA in 2012. The Justice Department appealed the ruling in September.
On a separate track, the Biden administration has taken steps to “preserve and fortify” DACA through the regulatory process. A proposed regulation drew more than 16,000 public comments, including strong support from the business community. DHS will now review the comments before publishing a final regulation.
BAL Analysis: BAL will continue to follow the DACA litigation as it moves through the appeals process. Under the July ruling, DHS cannot approve any first-time DACA grants, but DACA recipients are able to file renewal requests and for employment authorization. For more information, please visit BAL’s DACA Resource Center here.
U.S. Immigration and Customs Enforcement (ICE) announced today that it would extend Form I-9 flexible procedures for employers.
Key Points:
Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in August.
USCIS is currently collecting input from the public on possible “alternative options to physical document examination” in the I-9 process. In the recently published regulatory agenda, DHS indicated that it plans to publish a notice of proposed rulemaking next year on “alternative document examination procedures under certain circumstances or with respect to certain employers.” BAL will provide updates as information becomes available.
U.S. Citizenship and Immigration Services (USCIS) has reminded the public of special services made available to those affected by natural disasters such as the recent tornadoes in Kentucky and nearby states.
On a case-by-case basis, individuals impacted by natural disasters and certain other unforeseen circumstances may request:
Additional Information: Individuals who are making a request listed above should explain how the server weather in Kentucky and surrounding states created the need for such a request. Those who lost evidence should include an explanation and a copy of a police report, insurance claim or other report to support a request.
Employers and individuals are reminded that all Form I-9 requirements remain in place and should review instructions on how to verify employment eligibility of employees whose documents are lost or damaged. Individuals are reminded to update their addresses with USCIS to avoid possible delays in processing. More information regarding the special measures is available here.
The FY 2023 H-1B cap season is getting underway amid economic conditions that could increase demand for high-skilled foreign workers.
Employers are encouraged to begin H-1B planning now and should expect heavy competition for workers who may have multiple employment offers. The number of registrations regularly eclipses the number of cap-subject H-1B visas available, both for bachelor’s and advanced degree holders. Next year will almost surely be no exception.
Here is some of the key information for those new to the process or in need of a refresher:
Background: This will be the third cap season in which USCIS will use the H-1B electronic registration process. USCIS received 308,613 registrations last year and 274,237 the year before. In each of the last two years, USCIS has conducted more than one lottery. Whether this happens again will depend on several factors, including how many petitions are submitted for the registrations that are selected in the initial lottery.
BAL Analysis: Demand for H-1B visas will likely be high again this cap season, and employers should expect candidates to have multiple job offers. Employers are encouraged to work closely with BAL regarding the immigration benefits employers can offer (e.g., immediate green card sponsorship), which petitions should be fully prepped before the registration lottery, and possible H-1B alternatives for registrations that are not selected.
BAL attorneys will be hosting a webinar on Tuesday, Dec. 14 entitled, “Developments Affecting H-1B Cap Season: Planning & Strategies for Your H-1B Program.” To attend, register here.
The U.S. government has published its semi-annual regulatory agenda, offering an indication of the Biden administration’s top immigration priorities in the coming months.
Additional Information: The full regulatory agenda is available here.
BAL Analysis: While the regulations would have significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period during which members of the public may submit feedback. BAL continues to monitor the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.
The State Department published a temporary rule Monday that will allow consular officers to waive the personal appearance and interview requirements for certain replacement immigrant visa applicants.
Under the rule, immigrant visa applicants will not need to make an in-person appearance for an interview, execution of their applications and oath, if:
The rule will take effect immediately and will expire in two years, on Dec. 13, 2023.
Applicants who meet the criteria listed above may wish to contact the embassy or consulate that issued their prior visa to ask about their eligibility. Even for applicants who meet all the criteria, waivers will be granted at the discretion of consular officials. Applicants may be required to submit new DS-260 applications, provide any required updated documents, submit medical exams, and pay the application processing fees.
More information on the personal appearance waiver is available here.
The U.S. State Department is no longer requiring 2022 diversity visa (DV) selectees to submit their supporting documents to the Kentucky Consular Center (KCC).
Additional Information: The State Department has changed the process for DV-2022 selectees to help fill all available DV appointments. As of Dec. 9, the Department is treating the document processing change as a pilot program and will analyze the costs and benefits of the change later in the program year.