Business Immigration Insights

According to the CDC, May 11, 2023 marked the end of the COVID-19 Public Health Emergency declaration. As of July 31, 2023, the COVID-related flexibilities around the I-9 processes will also officially come to an end.

In the newest sequel to the Shergill v. Mayorkas settlement, US Citizenship and Immigration Services (USCIS) has now updated its Policy Manual to address documents that E and L nonimmigrant spouses may show their employers to prove their work eligibility.

Following the settlement of a US Citizenship and Immigration Services (USCIS) lawsuit that finally recognizes that dependent L and E spouses are able to work lawfully incident to their status, US Customs and Border Protection (CBP) updated its admission system to designate on the I-94 admission records those spouses who are authorized to work without applying for an EAD.  L and E spouses should be admitted with an “S” after their status to indicate that they are spouses authorized to work.  The new I-94s do not explicitly state “work authorized”, but the “S” designation tells employers for I-9 purposes that they are authorized to work for the validity of their I-94s. 

As we explained on May 4 and March 12, the Department of Homeland Security has relaxed normal in-person verification requirements for Form I-9 during the pandemic.

As of May 1, 2020, when employers verify identity and employment authorization for their employees, they must use the October 21, 2019, edition of Form I-9, Employment Eligibility Verification.

On March 12, we recommended that employers designate authorized representatives to complete and reverify Forms I-9 in person during COVID-19 closures and furloughs.  On March 24, we updated our guidance in detail because, in response to COVID-19, USCIS began allowing employers and employees to complete Forms I-9 remotely.  The agency has now further relaxed I-9 verification requirements.

Employers face many urgent issues in responding to the US outbreak of the novel coronavirus, COVID‑19.  The disease has forced employers to develop and implement workplace safety, mitigation, and business continuity plans.  These may include allowing employees to work from home or from alternate unaffected worksites, as well as outsourcing I-9 document reviews to agents in remote locations. Economic slowdowns have occurred in some sectors due to the global pandemic, requiring some companies to consider or implement temporary employee furloughs or even reductions in force.

In 2018, the Department of Homeland Security (DHS) announced that it will terminate the temporary protected status (TPS) program for nationals of El Salvador on September 9, 2019.  Employment authorization documents (EADs) held by qualifying individuals that expired on March 9, 2018, were automatically extended through September 5, 2018, providing applicants time to apply for new EADs valid through the termination date.  However, in late 2018, a federal court judge in California issued a preliminary injunction preventing the administration from ending the TPS program for El ...

On Tuesday, July 30, 2019, the U.S. Department of Justice (DOJ) announced a settlement agreement with United General Bakery, Inc. based in Phoenix, Arizona. The agreement resolved a DOJ investigation into whether the company discriminated against authorized workers based on their citizenship status when verifying their work authorization in violation of the Immigration and Nationality Act (INA).

Effective January 1, 2018, AB-450, which was signed into law by Governor Jerry Brown on October 5, 2017, imposes the following requirements on public and private employers in California:

• Except as otherwise required by federal law, an employer or other person acting on the employer’s behalf is prohibited from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant, except as specified
• Except as required by federal law, an employer or other person acting on the employer’s behalf is ...

U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.

The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.  In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment ...

United States Citizenship and Immigration Services (“USCIS”) released the new version of Form I-9 today, a week earlier than previously announced. As a reminder, all U.S. employers are required to use the new version by January 22, 2017, to verify the employment eligibility of new hires and to reverify continued employment eligibility of employees, when necessary.  Employers may continue to use the version dated 03/08/2013, through January 21, 2017.

Employers enrolled in the E-Verify program were unable to access the E-Verify system during the recent government shutdown.  While employers were still required to complete paper I-9s for new hires, they were not able to enter the data into the E-Verify system within the required three days.  USCIS has issued guidance for E-Verify participants.  The guidance addresses handling tentative non-confirmations received between September 17, 2013, and September 30, 2013; SSA final non-confirmations; and how to comply with the three-day rule (which must be completed by November 5, 2013).

Last month, the Homeland Security Investigation Worksite Enforcement Unit of Immigration & Customs Enforcement (ICE) announced a significant change in policy regarding use of electronic I-9 software.

Many such systems integrate data from other HR databases in order to prepopulate information on Section 1 of Form I-9, the section employees fill out during the employment eligibility verification process.

In an April 11, 2013, meeting with the Verification and Documentation Liaison Committee of the American Immigration Lawyers Association (AILA), ICE has now confirmed its ...

On April 30, US Customs & Border Protection began a phased elimination of the paper I-94 Admission/Departure Record that visitors to the United States have become so familiar with.

By May 5, CBP will no longer issue paper I-94s at airports in Charlotte, Orlando, Las Vegas, Chicago (O’Hare), Miami, and Houston (IAH).  By May 21, I-94s at all other air and sea ports will be systematically phased out, per the schedule in CBP’s Travel Advisory.  Paper I-94s will continue to be issued at all land ports of entry.

On March 8, 2013, USCIS issued a major revision of its Form I-9 Employment Eligibility Verification form, pursuant to a Federal Register announcement.

The newly revised Form I-9 adds data fields, including the employee’s foreign passport information, telephone and email address; improves and expands the form's instructions (now six pages); and revises the form layout to two pages, one for the employee and one for the employer.

Employers should begin using the new Form I-9 immediately, but are required to use it beginning May 7, 2013.  On that date, all prior versions of Form I-9 – ...

US Citizenship and Immigration Services (USCIS) is advising that the current version of Form I-9 should continue to be used by employers despite the August 31, 2012 expiration date specified on the form.  USCIS is in the process of updating the form once again, and presumably the new version will be available in the coming months.

Form I-9, Employment Eligibility Verification, must be used by U.S. employers to verify the identity and employment eligibility of all newly-hired employees.

Please contact Hunton & Williams if you have any questions about Form I-9 or related requirements.

USCIS has announced a voluntary service that allows members of the public to verify their employment eligibility in the United States. E-Verify Self Check may be useful to anyone who wishes to confirm that the government's records about them are accurate, and to address any mismatches among Department of Homeland Security and Social Security Administration databases. Once employment eligibility is confirmed in E-Verify Self Check, job seekers are unlikely to experience any delays when hired by an employer that uses the E-Verify system.

Before the verification process is ...

The USCIS has revised and released its Employer Handbook.  The Handbook contains detailed instructions for completing Form I-9, which is used to verify the identity and employment eligibility of all new hires.  It also contains a detailed FAQ section that answers the more common I-9 questions.  Employers should ensure that all those involved in the I-9 process have a copy of the updated Handbook.

DHS announced the expansion of the E-Verify system with regard to new hires presenting US passports and passport cards during the I-9 process identification and employment eligibility process.  This new enhancement allows employers to instantly verify the validity and authenticity of US passport and passport cards, and is intended to strengthen the ability to detect fraudulent documents.  According to DHS, 10% of employees subject to E-Verify present US passports for I-9 purposes.

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure Puerto Rican birth certificates to US Citizens born in Puerto Rico.  As of October 1, 2010, all certified copies of Puerto Rican birth certificates issued prior to July 1, 2010, will no longer be valid.  Accordingly, the Citizenship and Immigration Services (USCIS) issued a press release providing guidance to US employers with regard to the I-9 process.  For new employees, employers may continue to accept all Puerto Rican birth certificates through September 30, 2010; after that date, only the new Puerto Rican birth certificates (issued on or after July 1, 2010) we be acceptable for I-9 purposes.  Therefore, as of October 1, 2010, employers must pay close attention to the issuance date of Puerto Rican birth certificates presented for I-9 purposes.

The USCIS has issued guidance to users of its eVerify system with regard to the "hire date" for new employees.  If the E-Verify record was created before the employee began working for pay, the E-Verify hire date is the date the case was created in E-Verify; if the E-Verify record was created on or after the employee began working for pay, the E-Verify hire date is the date the employee began working for pay.  Employers working under federal contracts containing the FAR E-Verify clause and are creating E-Verify records for existing employees must use the original dates those employees began ...

In its continuing effort to deter immigration fraud, the US Citizenship and Immigration Services (USCIS) has unveiled a new permanent resident ("green") card with additional security features.  The new card is already being produced and issued to those granted permanent resident status.  The new card contains a pre-printed return address for easy return of the card to the USCIS if lost.  Employers should ensure that those responsible for completing I-9 verification forms are familiar with the new design.

In April 2010, the USCIS updated the FAQs for Federal contractors required to participate in the eVerify system.  The updated FAQs can be found here.  While the FAQs provide general information about the eVerify requirements for Federal contractors, companies should consult with counsel about the specifics.

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced it would serve 1,000 Notices of Inspection on U.S. employers whose business activities affect "critical infrastructure" (i.e., public safety and national security).  ICE agents will review I-9 forms, which all U.S. employers must use to verify employees' identity and U.S. work authorization.

On October 7, 2009, the Department of Homeland Security officially rescinded its August 2007 rule establishing "safe-harbor procedures" for employers who receive Social Security no-match letters.  These procedures never went into effect because a federal court in California issued a preliminary injunction against the rule after the AFL-CIO and other organizations filed suit.  The rescission reinstates the former rule on what constitutes "constructive knowledge" on the part of an employer that an employee is working without authorization. 

US Immigration and Customs Enforcement (ICE) fined a Missouri poultry plant $450,000 for I-9 violations following a worksite enforcement investigation.  ICE arrested more than 130 employees who were not authorized to work in the United States.  As part of the settlement, the company agreed to train its human resource personnel on how to avoid hiring undocumented workers, and to establish a compliance program to ensure that its hiring and employment practices are consistent with US law.  In addition to the I-9 paperwork violations and violations for knowingly employing undocumented ...

On September 8, 2009, U.S. Citizenship and Immigration Services published additional guidance for contractors subject to FAR E-Verify. 

Under the Federal Acquisition Regulation (FAR), September 8, 2009, is the effective date for certain federal contractors to begin using E-Verify to confirm that their employees are authorized to work in the United States.  Although the new rule will apply to many federal contracts, there are broad exemptions and limitations.

The US Citizenship and Immigration Services (USCIS) has issued a new Form I-9 that employers must use as of April 3, 2009.  Under the Immigration Reform and Control Act of 1986 (IRCA), employers must complete Form I-9 for each new employee within three days of hire, and retain the form in the event of governmental investigations.  Employers can be fined for failing to complete the forms properly and for knowingly employing unauthorized workers.  

On March 26, 2009, President Obama extended Deferred Enforced Departure (DED) for qualifying Liberian nationals.  DED is used by the President as an exercise of his constitutional power to conduct foreign relations, and provides qualifying individuals a temporary stay of removal, as well as employment authorization.  In response to the President's announcement, the USCIS extended employment authorization documents (EADs) for Liberian nationals through March 31, 2010.  Qualifying Liberian nationals can take steps to obtain new EADs to allow them to continue working lawfully in ...