U.S. Department of Homeland Security Extends Flexibilities for Immigration Processes in Response to COVID-19, But Uncertainty Lies on the Other Side of the Pandemic

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Since March 2020, the U.S. Department of Homeland Security (DHS) and its component agencies, the U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), have repeatedly extended a number of flexibilities affecting business immigration processes in response to the COVID-19 pandemic. While these temporary policy changes have been welcomed by advocates, businesses, and individuals alike, the ad-hoc nature of the accommodations has also caused confusion and anxiety among stakeholders. This is particularly true for businesses that have permanently shifted to fully remote or hybrid work environments, as it is unclear how much flexibility will continue to exist in a post-pandemic world. 

Flexibility in Requirements Related to I-9 Compliance

On December 15, 2021, USCIS and ICE announced they again extended flexibility relating to in-person Form I-9 compliance. As discussed in a previous post, this flexibility allows employers whose entire workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. In addition, it applies to employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions.

Under this flexibility, qualifying employers are not required to review employees’ identity and employment authorization documents in person, and may instead inspect these documents remotely, using “video link, fax or email, etc.” Employers must also comply with document retention and re-verification requirements discussed in more detail here.

DHS has extended this flexibility until April 30, 2022. This four-month extension comes on the heels of a letter to DHS by concerned stakeholders urging the agency to extend I-9 flexibilities for at least six months, until June 30, 2022. In this letter, stakeholders cite DHS’s practice of announcing last-minute extensions of the policy as problematic for employers who depend on predictability in planning for compliance while COVID-related precautions are still in effect.

DHS’s reluctance to extend these flexibilities for more than just four months at a time also creates uncertainty for employers who have shifted to fully remote or hybrid work environments, and plan to continue operating in this fashion even after COVID-related precautions are lifted. While DHS has requested public input to understand the potential impact of future I-9 flexibilities, the agency has yet to announce permanent changes to in-person I-9 verification requirements, and until it does so, employers are left to wonder to what extent they may need to revert to in-person I-9 verification in the future.

Flexibility in Submitting Original Signatures

On March 20, 2020, USCIS announced that, due to the COVID-19 National Emergency, the agency would accept electronically reproduced original signatures, even for forms that previously required original “wet” signatures according to form instructions (which have the same force as an agency regulation). USCIS announced that this flexibility would remain in effect for the duration of the National Emergency. Initially declared by President Trump on March 13, 2020, the COVID-19 National Emergency was most recently extended by President Biden for one year, until February 24, 2022.

While President Biden may well extend the National Emergency beyond February 2022, it remains unclear whether USCIS will once again require original “wet” signatures after the National Emergency expires. For businesses and their legal representatives, such a reversion could create significant logistical hurdles and may render fully-remote working arrangements untenable. This is true, at least, until USCIS enables electronic filing for all immigration benefits, a process the agency plans to complete by Fiscal Year 2026, and which itself is fraught with uncertainty.

Flexibility for Responding to Agency Requests

On December 30, 2021, USCIS announced yet another extension to flexibilities for stakeholders responding to certain agency requests during the COVID-19 pandemic, including Requests for Additional Evidence (RFEs) and Notices of Intent to Deny (NOIDs). Under this policy, USCIS treats responses to certain requests and notices as timely filed, so long as they are received by the agency within 60 calendar days of the due date specified on the request or notice. The policy also provides flexibility with regard to certain Motions, Appeals, and Requests for Hearings.

Under the most recent extension, this flexibility applies to requests, notices, or decisions issued on or before March 26, 2022.  However, looking beyond March 26, DHS has yet to confirm whether this flexibility will be adopted permanently (which would require DHS to go through the notice-and-comment rulemaking process), or if the agency will revert to the shorter timeframes that were in place pre-pandemic. As with the I-9 and signature flexibilities described above, a reversion to prior policy could be logistically challenging for stakeholders, especially until USCIS enables electronic filing for all immigration benefits. Even then, tighter timeframes for responses to agency requests may remain problematic, as stakeholders must often gather evidence from overseas in order to respond to these requests, and it may be a long time before COVID-19 and related restrictions stop creating delays, globally.

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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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