Legal Blogs and Updates

E-Verify Employers May Use Alternative Procedure for Form I-9 Documents Examined Remotely During COVID-19 Temporary Flexibilities

In May 2023, U.S. Immigration and Customs Enforcement (ICE) announced that employers had until August 30, 2023, to physically inspect all Form I-9 documents that had been examined remotely using the COVID-19 flexibilities. But, according to a Department of Homeland Security (DHS) announcement in a Federal Register Notice dated July 25, 2023, employers enrolled in E-Verify during the COVID-19 temporary flexibilities may use an alternative procedure to satisfy the physical inspection requirement.   

Based on the DHS’s Notice, the alternative procedure is available to employers who have done all four of the following: 

1. Performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023; 
2. Enrolled in E-Verify at the time they completed the Form I-9 for that employee;  
3. Created a case in E-Verify for that employee (except for reverification); and  
4. Enrolled currently in and continue to participate in E-Verify. 

Employers who do not meet all four requirements must perform an in-person physical examination of documents by August 30, 2023.  

All E-Verify employers that choose the alternative procedure instead of physical examination must follow the below instructions. Even if the employer performed steps similar to the alternative procedure at the time of hire, the employer must still complete the steps of the new alternative procedure to finalize the Form I-9. When using this procedure, employers may not unlawfully discriminate based on a protected characteristic, such as by deciding that certain employees are not eligible for the alternative procedure.

If you are an employer who was enrolled in E-Verify when you performed a remote examination of your employee’s Form I-9 documentation under the COVID-19 flexibilities between March 20, 2020, and July 31, 2023, and created an E-Verify case for that employee...

You may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023.   Or   You may choose to complete an in-person physical document examination by August 30, 2023.   (If you have already conducted an in-person physical examination of documents, no action is needed.)

If you choose to use the new alternative procedure, you must remotely examine the employee’s Form I-9 documents by conducting a live video interaction for each employee whose documents were examined remotely under the temporary flexibilities but never physically examined in person.   Note: If you previously used fax, email, or a live video interaction during the COVID-19 flexibilities to examine your employee’s documents, you must conduct a live video interaction by August 30, 2023.   You must annotate Form I-9 with “alternative procedure,” the date of the second remote document examination, and your initials in Section 2, Additional Information field or in Section 3, as appropriate.   You should have already annotated the date of the first remote document examination. This new annotation should be placed near the previous annotation.   You must not create another E-Verify case based on the second remote document examination.   Click here to see Figure 1.

If you are an employer who was not enrolled in E-Verify when you performed a remote examination of your employee’s Form I-9 documentation under the COVID-19 flexibilities between March 20, 2020, and July 31, 2023...

You must complete an in-person physical document examination by August 30, 2023.   Note: You may use an Authorized Representative to complete the in-person physical document examination.

For employers performing in-person physical document examinations following remote examinations completed under the COVID-19 flexibilities between March 20, 2020, and July 31, 2023, the Form I-9 must be annotated with the date the in-person physical document examination took place in Section 2, Additional Information field or in Section 3, as appropriate.

USCIS Published a New I-9 Form and Alternative Document Review Option for E-Verify Employers

As previously reported, the DHS Secretary authorized (starting August 1, 2023) alternative document examination procedures, i.e., virtual review rather than physical examination of the documents.  For the immediate future, the alternative procedures will be limited to E-Verify participants in good standing (although DHS plans to launch a pilot program for non-E-Verify employers, discussed below).  Under the alternative (virtual) procedure:

• The employee will transmit a copy of the documents to the employer;
• The employer will examine the documents;
• The employer will conduct a live video interaction with the employee presenting the documents to ensure that the documentation reasonably appears to be genuine and related to the employee. At this time, the employee will present the documents again; and
• The employer will indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable (a new version of the Form I-9 will be published on August 1, 2023); and
• The employer must retain a clear and legible copy of the documentation (front and back if it’s two-sided)

As always, this must be done within three (3) business days of the first day of employment.  An E-Verify employer is not required to use the virtual procedure, but if it chooses to offer the alternative procedure to some employees at an E-Verify hiring site, the employer must do so consistently for all employees at that site.  However, an E-Verify employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic.

It is important to remember that whether or not the virtual procedure is used, employers will be required to create an E-Verify case for each employee.

Coinciding with the alternative document review option, DHS released a new Form I-9.  The new Form I-9 has changed in the following ways:

• Reduces Sections 1 and 2 of the Form I-9 to a single-sided sheet and merges multiple fields into fewer fields. Section 1, which an employee completes at the time of hire, collects identifying information about the employee and requires an employee to attest to whether the employee is a United States citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States. Section 2, which an employer completes within three business days of an employee’s first day of employment, collects identifying information about an employer and information regarding an employee’s identity and authorization to work in the United States.
• Replaces the use of “alien authorized to work” in Section 1 of the Form I-9 to “noncitizen authorized to work” and clarifies the difference between “noncitizen national” and “noncitizen authorized to work.”
• Updates the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
• Contains a separate, standalone supplement, referred to as Supplement A. Supplement A is completed when an employee uses preparers and/or translators to assist in completing Section 1 of the Form I-9.
• Contains a separate, standalone supplement referred to as Supplement B, which is used for Reverifications and Rehires. An employer completes the new Supplement B when verifying the continued employment authorization of an employee. This reverification must be completed prior to the date that an employee’s employment authorization and/or employment authorization documentation, recorded in either Section 1 or Section 2 of Form I-9, expires. Further, an employer may use Supplement B for an employee who is rehired within three (3) years of the date of the initial completion of the Form and to record a change of the rehired employee’s name
• Revises the “Lists of Acceptable Documents” page of Form I-9 to include acceptable receipt notices and guidance on automatic extensions of employment authorization documentation. Occasionally, employees may present a “receipt” in place of a List A, B, or C document. An acceptable receipt is valid for a specified period of time so an employer can complete Form I–9. An employer must accept a receipt in place of List A, B, or C documentation if the employee presents one unless employment will last for fewer than three business days. New employees who choose to present a receipt must do so within three business days after their first day of employment, or for reverification or existing employees, by the date that their employment authorization expires. When an employee presents an acceptable receipt, an employer must enter the word “Receipt” followed by the title of the document in Section 2 of Form I-9 under the list that relates to the presented receipt. When an employee presents the original replacement document, an employer must then cross out the word “Receipt” and enter the information from the new documentation into the Additional Information field in Section 2 of the Form I-9, followed by initialing and dating the change. An employer cannot accept a second receipt at the end of the initial validity period.

The new Form I-9 became effective on August 1, 2023, although DHS is allowing employers to continue using the pre-August 1, 2023, version of Form I-9 (10/21/2019 Edition) until October 31, 2023. Starting November 1, 2023, all employers must use Form I-9 with a version date of August 1, 2023.

Contact us with questions about the new I-9 form and virtual review.

Reap the Benefits of an I-9 Audit

Given the complexities of the I-9 process, we recommend enlisting Connell Foley to conduct a yearly training session and external audit of I-9s, E-Verify, or Hiring Practices.  The training allows us to:

• Identify the company’s key personnel
• Emphasize the importance of the I-9 process
• Ensure communication from the bottom of the organization to the top
• Proactively manage compliance
• Review original I-9 and supporting documents (payroll records, lists of active and terms, expirations, training materials)
• Establish a training program for Form I-9 compliance and fraud detection
• Establish a Social Security no-match policy
• Establish a protocol to address credible allegations regarding unauthorized workers
• Establish a protocol and safeguards against discrimination
• Develop a plan for responding to government inquiries

Bottom Line

• External audits are low-cost and prevent recurring problems that can be both costly and result in negative publicity!

Contact us with questions about I-9 compliance, benefits of I-9 audits, and yearly training.

Form I-9 Errors Trigger $120K Settlement

The Justice Department (DOJ) announced that it has secured a settlement agreement with three corporate entities: Mr. Glass Doors and Windows Inc., Mr. Glass Doors and Windows Manufacturing LLC, and Powder Coating Technologies LLC (collectively Mr. Glass Group). The department’s investigation determined that from at least March 1, 2018, to Sept. 16, 2020, Mr. Glass Group routinely required lawful permanent residents to present a specific immigration document when checking their permission to work.

Under the terms of the settlement, Mr. Glass Group will pay $120,000 in civil penalties to the United States. The agreement also requires Mr. Glass Group to train its personnel on the Office of Intelligence and Analysis (INA) requirements, revise its employment policies, submit to departmental monitoring, and comply with departmental reporting requirements.

Employers With Less Than 500 Employees May Be Able to Examine I-9 Documentation Remotely Under New Program:   Department of Homeland Security (DHS) Plans to Launch Non--E-Verify Remote Document Examination Pilot Program

DHS published a 60-day notice and request for comment on a new pilot program, “Non-E-Verify Remote Document Examination Pilot Program.” Under the alternative (virtual) procedure:

• The employee will transmit a copy of the documents to the employer;
• The employer will examine the documents;

• The employer will conduct a live video interaction with the employee presenting the documents to ensure that the documentation reasonably appears to be genuine and related to the employee. At this time, the employee will present the documents again; and
• The employer will indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable (a new version of the Form I-9 will be published on August 1, 2023); and
• The employer must retain a clear and legible copy of the documentation (front and back if it’s two-sided)

As always, this must be done within three (3) business days of the first day of employment. 

It is important to note that only employers with less than 500 employees may participate in the pilot program.  Moreover, interested employers would be required to complete a form requesting permission to participate and would have to receive permission from ICE.  ICE would then regularly request feedback data from participating employers.

Contact us with any questions about the availability of virtual review of I-9 documentation for your company.

Reminder: Ability to Rely on Automatic Extension of EAD Cards Ends Soon:  Temporary Final Rule Extending Certain Employment Authorization Cards by up to 540 Days Set to Expire

In May 2022, USCIS temporarily increased to 540 days the automatic extension of I-765 employment authorization for foreign nationals in specific immigration categories.  As of October 26, 2023, forms filed after that date will be eligible for an automatic extension of up to only 180 days.  This is problematic for employers because USCIS processing times still exceed the time allotted by the extension period.  Employers must be diligent in setting reminders on new expiration dates to avoid employing individuals beyond the extended date.

For your reference, we have attached a helpful client flyer that explains the changes. Please call us if you have questions.

H Cap Lottery Round 2:  USCIS Completes Second Random Selection from Previously Submitted Registrations for FY 2024 H-1B Cap

To reach the FY 2024 H-1B numerical allocation, USCIS conducted a second random selection of H-1B applications that is now completed. It has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition. 

We are pleased to have received multiple acceptance notices for many of our clients selected in the second round and to report that, once again, we have exceeded the national average in H-1B FY 2024 selections.

Contact us with questions about alternatives available for employees not selected in the cap.

Canada Competes for U.S. Workers:  Canada Reaches Work Permit Cap for H-1B Visa Holders in Under 48 Hours

In July 2023, the Canadian government launched an initiative to “keep highly skilled workers in North America.”  Anyone with a valid U.S. H-1B visa living in the United States was eligible to apply for a Canadian H-1B (10,000 were available) and, unlike U.S. H-1Bs, which are employer-specific, the Canadian counterpart permits work for any Canadian company.  As of midnight on July 17, 2023 (less than 48 hours after the launch), the Canadian government had received 10,000 applications. 

This is one of many Canadian programs aimed at attracting highly skilled workers to the country.  The latest is a digital nomad strategy in the technology sector that will allow people who work for an international employer to stay and work in Canada for up to six months at a time on a visitor’s visa.  If they receive a job offer while living and working in the country, they will be permitted to change their status and obtain a work visa.

USCIS Launches Online Appointment Request Form

U.S. Citizenship and Immigration Services (USCIS) has launched a new online form that allows individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center.

This online appointment request form allows individuals or legal representatives to request an in-person appointment at a field office only, for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more. It is not a self-scheduling tool and individuals cannot schedule their own appointments with USCIS. The USCIS Contact Center will review submitted forms and the availability of in-person appointments at a specific field office. Individuals may request a specific date and time for an in-person appointment, but USCIS cannot guarantee that the requested appointment date will be scheduled. USCIS will confirm and schedule the individual for an available in-person appointment date and time.

Contact us with questions about online appointment requests.

USCIS Announces F-1 Employment Authorization Documents Take One to Two Weeks to Produce After Adjudication

Addressing F-1 students who filed a Form I-765 Application for Work Authorization and requested Premium Processing, USCIS points out that the 30-calendar-day premium processing timeframe does not include the time it takes to produce the EAD.  After USCIS approves the Form I-765 application, the applicant’s EAD should be produced within two weeks and will be delivered via U.S. Postal Service Informed Delivery.

Contact us with questions about EAD applications.

The Presidents’ Alliance Finds That International Students from African Nations and the Global South are Much More Likely to Have Their Student Visas Denied

The Presidents’ Alliance on Higher Education and Immigration (Presidents’ Alliance), an alliance of American Colleges and University Leaders, has long suspected that student visa denial rates are higher for students from Africa and the Global South (with a relatively low level of economic and industrial development), as compared to the rest of the world.  On July 26, 2023, the Presidents’ Alliance issued a report confirming its belief with data.  

The Presidents’ Alliance examined visa adjudication trends spanning an eight-year period between 2015 and 2022, covering three presidential administrations.  The data showed that African students faced a visa rejection rate of over 50% in 2022, up nearly 10% from 2015.  That’s double the rejection rate for students from Australia and the Pacific islands and more than five times higher than the rate for European students.

USCIS Field Office in Havana Reopens

DHS announced the reopening of an international field office in Havana, Cuba, closed by the previous administration in 2018. The Havana office will assist with U.S. immigration benefits and services, including conducting interviews and processing cases for pending Cuban Family Reunification Parole cases and Form I-730, Refuge/Asylee Relative Petitions.  USCIS’s renewed presence in Cuba is part of an effort to restore USCIS’ footprint outside the U.S.

Contact us with questions about the field office in Havana.

New Employer Reporting Obligation on Unemployment Compensation:  The Labor & Employment Group at Connell Foley Has Provided a Legal Update Titled “New Jersey Employers Have New Reporting Obligations Per Amendments to Unemployment Compensation Law”

Effective July 31, 2023, the law requires an employer to complete and provide a separated employee with the New Jersey Department of Labor & Workforce Development’s  Form BC-10, which contains instructions for claiming unemployment benefits and information about the employer that the worker needs to file a claim. Click here for more information.

Contact us for more information on this change.