A settlement decree in the case of Subramanya, et al. v. USCIS, Case No. 2:20-cv-3707 (S.D. OH, Eastern Div., 2020), resulted in permission for foreign nationals to present an approval notice (Notice of Action) alone to evidence employment authorization in the United States until December 1, 2020. United States Citizenship and Immigration Services (USCIS) has been experiencing a backlog of tens of thousands of employment authorization cards and was sued in federal court to enforce administrative regulations. Employers should be aware that this is a temporary departure from standard I-9 compliance rules.
Click here to read the USCIS announcement. It is expected that over the next few months, the cards will be produced and mailed.
In furtherance of the relaxed stance of U.S. Immigration and Customs Enforcement (ICE) toward I-9 compliance during the COVID-19 pandemic, it was announced on August 18, 2020, that USCIS would further defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation to September 19, 2020. This policy was initiated in March 2020 with the onset of COVID-19 and only applies to employers and workplaces that are operating remotely. For employees physically at a work location, no exceptions are being implemented at this time. Further, the option of using receipts for any List B documents, not formally extended by a state’s issuing authority, also expires on September 19, 2020. The Department of Defense has issued a resource for those charged with I-9 compliance for their companies. It can be found here.
The broad takeaway for employers is that they are reminded to diligently check both the USCIS and ICE websites for continuing developments being experienced both by government entities and businesses in order to avoid falling out of compliance. The government may well decide to resume audits and fines in the near future. During COVID-19, the government has continued to issue I-9 Audits with a request for file inspections, Notices of Suspect, document requests and more.