June 2021 Immigration Alert

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Flexibility to Verify Forms I-9 Is Extended
to August 31 Due to COVID-19

Due to the COVID-19 pandemic, the Department of Homeland Security (“DHS”) has announced another extension of its policy allowing special flexibility in completing FormI-9 Employment Eligibility Verifications. (See Epstein Becker Green’s March 20, 2020, Special Immigration Alert summarizing the DHS’s initial announcement allowing special flexibility to verify Form I-9 documents without viewing a new hire’s original documents, provided employers followed certain specified requirements. Since then, because of the continuing pandemic, the DHS has extended its policy several times.) The Form I-9 special flexibility policy has now been extended to August 31, 2021—but only for employers and workplaces operating entirely remotely. If there are any employees physically present at a workplace, employers must revert to in-person verification of original identity and employment eligibility documents for Form I-9.

For employers covered by the August 31 extension, unless the special flexibility policy is extended again, or if their employees return to the workplace before the policy expires, they will need to revert to the pre-COVID-19 requirements to complete I-9 verification of new hires. We will provide an update if this special flexibility is extended again.

DOJ Settles Claims Against Employers Requiring
Excessive Employment Verification Documentation

Since May 2021, the U.S. Department of Justice (“DOJ”) has announced numerous settlements in immigration-related discrimination claims against employers that have required more excessive employment verification documentation than allowed under Form I-9 regulations. One of those settlements concerned a major pharmaceutical company, which agreed to pay a $220,000 civil penalty for requesting “unnecessary and specific documents from lawful permanent residents” (“LPRs”). These fines are a reminder that employers may require only those verification documents specifically named in the Form I-9 regulations (which are listed on the Form I-9 instructions) and should monitor their Form I-9 verification procedures to ensure compliance.

U.S. Embassy in London Cancels Visa Appointments

On June 1, 2021, the U.S. Embassy in London unexpectedly announced that it had canceled visa appointments from August to October, 2021 for applicants who are not National Interest Exception (“NIE”) Waiver eligible. Applicants who had previously been scheduled for interviews during those months have been instructed to reschedule for new dates beginning in March 2022. The U.S. Embassy in London provided the following explanation for the cancellations:

[T]he August-October interview dates were created as ‘place holder’ appointments from which applicants could request an expedited (NIE) appointment. Considering decreased staffing levels and that the U.K. remains subject to Presidential Proclamation 10143 (due to COVID) restricting entry to the U.S., the lack of routine consular appointments appears consistent with current conditions.

We will continue to monitor the London Embassy for any further updates.

USCIS to Issue EAD Cards Based on Pending and Filed I-485
Adjustment of Status Applications for Two-Year Validity Period

On June 9, 2021, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will begin issuing new Employment Authorization Document (“EAD”) cards filed with an I-485 Adjustment of Status Application, or filed for an extension based on a pending I-485 Adjustment of Status Application, for a two-year validity period instead of a one-year validity period. USCIS’s decision will reduce the burden on both the agency and the public caused by the current backlog, which has resulted from longer EAD extension adjudications.

USCIS Updates Criteria to Request Expedited Processing for
Applications That Don’t Allow Premium Processing

On June 9, 2021, USCIS updated its Policy Manual and website regarding the criteria for expedited processing of applications, including EAD work permits that are pending adjudication for approval. To qualify, for potential expedited processing, an application must fall under at least one of the following criteria or circumstances:

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to (1) timely file the benefit request, or (2) timely respond to any requests for additional evidence;
  • Emergencies and urgent humanitarian reasons;
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural and social interests of the United States;
  • U.S. government interests (including urgent cases for federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, DHS, or other public safety or national security interests); or
  • Clear USCIS error.

The USCIS provides the following guidance on what is meant by “severe financial loss”:

  • A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or required to lay off other employees. For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.
  • The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment. Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment.
  • In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits.

As noted on in the Policy Manual, USCIS considers all expedite requests on a case-by-case basis and generally requires documentation to support such requests. The decision to grant or deny an expedite request is within the sole discretion of USCIS.

U.S. Supreme Court Holds That TPS Status Holder
Is Not Eligible for I-485 Adjustment of Status

On June 7, 2021, in a unanimous decision, the Supreme Court of the United States in Sanchez et ux. v. Mayorkas held that a Temporary Protected Status (“TPS”) holder is not eligible to adjust their status to permanent residency, if that individual entered the United States without being inspected by a U.S. Customs and Border Protection (“CBP”) officer. Further, the Supreme Court held that eligibility for LPR status requires an “admission” or lawful entry into the United States, where an individual is inspected and authorized to enter by a CBP officer.

Deadline for FY 2022 H-1B Cap Lottery Is Fast Approaching

H-1B cap cases registered and selected in the fiscal year (“FY”) 2022 H-1B cap lottery must be filed and received by USCIS no later than June 30, 2021. Cases that are not received by USCIS by the deadline will be rejected and ineligible for the H-1B cap this year. Please also note that USCIS has advised that it received 308,613 H-1B registrations during the initial registration period and, of those, selected 87,500 registrations, which must be filed no later than the above June 30 date.

USCIS Vermont Service Center Changes Address

Effective June 14, 2021, the Vermont Service Center will no longer receive any incoming mail at the St. Albans, VT, facility, which is being decommissioned. The new addresses may be found here. Mail sent to the previous addresses will be forwarded for one year, but any mail sent to the previous addresses after June 2022 may be returned to the sender by the U.S. Postal Service or the courier service used.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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