Episode 33: DACA litigation, H-2 regulations, Form I-9 update

Hi podcast listeners. We recorded and published this week’s BAL Immigration Report before the Department of Homeland Security posted the text of a much-anticipated Form I-9 regulation. In doing so, the agency announced it would give qualifying employers optional alternatives to in-person document review in some cases beginning Aug. 1. For the latest information on this topic, visit BAL.com/news.

It’s July 20, and this is your BAL Immigration Report.

• The Justice Department questions states’ standing to challenge DACA.
• Proposed H-2 regulations are under White House review.
• A new form I-9 rule is in the works but may not take effect in time for employers relying on COVID-related flexible measures.

“There’s been a lot of advocacy asking DHS to extend that Aug. 30 date, but we’ve not really heard a lot of movement from them on it.”

—Kelli Duehning, BAL Partner

U.S. news

Justice Department requests dismissal of DACA case

The Justice Department cited a recent Supreme Court ruling in saying a federal court in Texas should dismiss a challenge to Deferred Action for Childhood Arrivals, or DACA. In an 8-1 ruling in June, the Supreme Court held that Texas and Louisiana lacked standing to challenge federal enforcement priorities related to arrest and deportation. This month, the Justice Department filed a motion saying the Supreme Court ruling “speaks directly to many of the plaintiffs’ arguments” and the court’s prior findings on standing. A group of states led by Texas dispute that the Supreme Court ruling is applicable to their challenge to DACA.

Proposed H-2 regulations under OMB review

The White House Office of Management and Budget is reviewing two proposed regulations to reform H-2 visa programs. The text of the proposals is not yet available. OMB review is the last step in the rulemaking process before they can be published.

The proposed regulations are designed to modernize the H-2A and H-2B visa programs and improve protections for temporary agricultural workers, both from the U.S. and abroad. Both regulations will be published as proposed rules, meaning they will go through a notice-and-comment period before they are updated and published as final rules.

U.S. news roundup

• The Office of the Citizenship and Immigration Services Ombudsman released its annual report, saying backlogs remain a significant challenge.
• The State Department released the August Visa Bulletin, showing dramatic retrogression in key employment-based categories.
• USCIS announced it would use Final Action Dates to determine employment-based filing eligibility.

Spotlight

A conversation with BAL Partner Kelli Duehning: the end of Form I-9 flexible measures and how employers should prepare.

BAL Immigration Report: In March, BAL Partner Kelly Duehning joined us to discuss what the end of the COVID-19 emergency would mean for immigration. Among other topics, she covered how COVID-related flexible measures allowed employers to review new employees’ Form I-9 identity and work authorization documents virtually in some cases. Now those measures are coming to an end. Duehning rejoined the BAL Immigration Report this week. She started off by discussing the Department of Homeland Security’s announcement in May that the Form I-9 flexibilities would not be extended again.

Duehning: In that announcement, they notified employers that there were two things that were going to happen. The first is that, with the ending of the COVID-19 I-9 flexible policy, that employers starting Aug. 1 would need to revert back to the normal I-9 processing pre-COVID, which meant that their review of work eligibility and identity documents would need to be done in person. So the virtual verification that employers were utilizing during the COVID-19 emergency would no longer be available to them. The second thing that DHS announced was that they were going to extend the deadline by which companies would be able to complete the in-person processing of those folks that were onboarded during COVID-19 and presented their documents virtually. They would extend the deadline for an additional 30 days to allow employers to call all those folks back in so they could complete the in-person processing, and the date that they provided to employers is Aug. 30.

BAL: DHS is moving toward publishing a regulation that would provide alternatives to physical document examination in the Form I-9 process in some scenarios. Just last week, the regulation cleared White House review. The regulation has not yet been published, however, so it’s still a guessing game as to what will be included.

Duehning says that alternatives to physical document examination will most likely be limited in availability to employers. For example, DHS could require employers to use E-Verify in all states where they have operations in order to participate. Also, the agency may require employers to partake in fraudulent document training before they use any virtual verification process.

Another issue: timing. Employers have urged DHS to make sure there is no gap between the end of the COVID flexibilities and the point at which the new regulation takes effect. Duehning says this may not happen.

Duehning: That’s the other thing we don’t know. Is it going to become effective immediately? Will there be a 30-day requirement? We don’t have any of those answers as of this point. I think the big question on many employers’ minds are, could we make it effective Aug. 1 so that we don’t have to go back to in-person processing after the COVID-19 flexibility memo comes to an end? And the answer to that is we don’t know.

BAL: Duehning said employers should prepare to revert to pre-COVID practices.

Duehning: So I think really most importantly, number one is have a game plan in place that as of Aug. 1, you’re going to have to go back to in-person processing of all your new hires until we have a better feel for what the new optional alternative rule that DHS will publish requires. So that’s number one is there’s probably going to be a lag between. So just be prepared and have an action plan in place for that Aug. 1 deadline. Secondly, we are not hearing anything from DHS that they are going to extend the Aug. 30 deadline to allow employers more time to bring in or have their employees return to the office to complete the in-person processing of the documents that were viewed virtually. So if you haven’t already started bringing those employees back in or have an action plan in place, I encourage you to ensure that you start doing that as soon as possible, because that deadline is going to come quickly.

There’s been a lot of advocacy asking DHS to extend that Aug. 30 date, but we’ve not really heard a lot of movement from them on it. So I wouldn’t anticipate that — I wouldn’t bet that they are going to move that Aug. 30 date.

Global news

Canada open work permit stream fills quickly

In Canada, a new open work permit stream for U.S. H-1B visa holders filled all primary applicant slots within 48 hours of opening. The government offered 10,000 spots to principal applicants to receive an open work permit valid for up to three years. Spouses and dependents will also be eligible to apply for a temporary resident visa with a work or study permit. The stream was announced by the Canadian government last month as part of a Tech Talent strategy to attract highly skilled nationals to live and work in the country.

U.K. announces immigration fee, health surcharge increases

In the United Kingdom, officials announced a significant increase in some immigration fees and the immigration health surcharge. Work and visit visa fees will rise by 15%, while fees for student visas in certain certificates and applications will increase by at least 20%. Immigration health surcharge rates will rise by about 65% per year. The immigration fee increases will be used to fund pay raises in certain public sector jobs. Authorities have not yet announced when the new measures will go into effect.

FIFA Women’s World Cup begins

The FIFA Women’s World Cup kicked off today in Australia and New Zealand. A reminder — the State Department encourages U.S. citizens to check embassy websites for the most up-to-date travel information, including entry and exit requirements. Travelers should ensure they have a valid passport and a visa or approved Electronic Travel Authority to enter each country. The women’s World Cup runs through Aug. 20.

Global news roundup

• The United Arab Emirates said it would expand Emiratization requirements to small businesses next year.
• The Philippines’ Bureau of Immigration has launched a new eServices portal.
• The Polish government announced it would end COVID-related residence and work permit extensions.

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