Our clients frequently face questions about how immigration laws and policies apply to their employees, candidates, and students. The world of immigration law can be a bewildering jumble of acronyms, statutes, regulations, and policy directives that leave many employers or school administrators exasperated and with whiplash. As practitioners in labor, employment, and education for our California-based public agencies, non-profit and educational institutions, we can help navigate the employment and education issues that immigration matters present, but we do not represent employers or institutions directly in immigration proceedings. Following is an excerpt of FAQ’s about immigration laws or policies that may impact our clients.
Question: During COVID-19, we are working remotely, but we are still hiring. How do we check an incoming employee’s identity and work authorization documentation to complete the I-9 Employment Eligibility Verification Form?
Answer: Employers are required to verify an employee’s identity and authorization to work in the United States by completing Form I-9 within 3 business days of employment. Typically, the employee produces the required documents in person, and a trained staff member at the agency verifies the documents and completes the form. In light of COVID-19, in March 2020, the United States Immigration and Customs Enforcement (ICE) issued revised guidance, allowing employers to review the documents remotely if the workforce is working remotely for social distancing purposes. In those cases, the employer must use videoconference to verify identity and review the proffered documents, and also must receive the documents electronically. On November 18, 2020, ICE extended this procedure to December 31, 2020. https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-0
Question: Our employee’s Employment Authorization Document (EAD) is set to expire. They filed for renewal months ago, but processing is delayed across the nation. What are the options?
Answer: It depends. If the employee has received an Approval Notice that their application or renewal was approved, but the employee is just waiting for the formal Employment Authorization Document, CIS has announced that the employer can accept the Approval Notice as a temporary employment authorization, to December 31, 2020. Certain conditions apply, and the guidance is subject to change.
Alternatively, employees whose employment authorization is based on special circumstances (including, but not limited to asylee or refugee status or protection under the Violence Against Women Act (VAWA)) may be eligible for an automatic 180-day extension of their employment authorization. https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension
Many employees, however, may have a lapse in their ability to demonstrate their eligibility for employment in the United States. Employers facing this situation should seek legal counsel to determine the options, which can be complicated under the agency’s personnel rules or applicable collective bargaining agreement.
Question: I read somewhere that changes are afoot for H1B petitions. What’s the latest?
Answer: Some of our clients employ or consider employing individuals pursuant to an H1B visa, a specialized nonimmigrant visa for qualified skilled workers. On October 8, 2020, the Department of Homeland Security (DHS) released a fast-tracked set of changes to the H1B visa program in an Interim Final Rule in the Federal Register. In doing so, the Department did not follow the standard regulatory process with a full public notice period.
Accordingly, the following changes (among others) are scheduled to take effect on December 6, 2020, to apply to new H1B petitions and extensions and transfers of H1B petitions:
- Refine the application of “specialty occupation” to require that the position is directly related to the employee’s educational degree.
- Change the maximum duration of the visa from 3 years to 1 year, for petitions filed by a third-party entity.
These changes could significantly impact an individual’s or employer’s plans if they were relying on the current H1B procedures. If your agency employs or is considering employing individuals through an H1B visa, your Human Resources team should seek legal assistance. Also, please note that public comment is still open on this matter, if you are interested in submitting by December 6, 2020: http://www.regulations.gov; DHS Docket No. USCIS-2020-0018.
Question: A student from outside the United States applied to our independent school and would need a student (F-1) Visa to attend. Where can the School learn more about international students?
Answer: Schools can become authorized to enroll international students in F visa status through the School Educational Visitor Program (SEVP), administered through DHS’s Immigration and Customs Enforcement (ICE). An overview of the program is available here: https://www.ice.gov/sevis/schools. If a school is considering participating, we recommend contacting legal counsel specializing in immigration law.
We hope after reading these FAQs you understand you’re not alone if you have immigration-related questions as an employer or educational institution. We invite you to contact us at LCW when these questions arise so we can help assess the issues and connect you with further resources as needed, ASAP.