Articles Posted in I-9 Compliance

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Welcome back to Visalawyerblog! We hope that you are having a wonderful week and are looking forward to your Labor Day weekend.

In this blog post, we share with you some recent immigration updates relating to automatic renewals for certain categories of applicants filing Employment Authorization Document renewal applications. In this post we also discuss Form I-9 Employment Eligibility Verification flexibilities recently extended due to the COVID-19 health crisis.


DHS Extends Form I-9 Requirement Flexibility (Effective September 1, 2021)


In order to remain in compliance with federal regulations, U.S. employers must complete Form I-9 Employment Eligibility Verification, to verify the identity and employment authorization documents of their employees.

On September 1, 2021, the Department of Homeland Security and U.S. Immigration and Customs Enforcement, announced that they will be extending previously issued flexibility guidelines for employers and noncitizen employees to comply with Form I-9 requirements due to the ongoing COVID-19 pandemic. DHS has extended these flexibility requirements until December 31, 2021.


What do the flexibility guidelines say?


DHS first introduced the I-9 flexibility guidelines on April 1, 2021, abandoning the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person for most employees. Employees who physically report to work at a company location on any “regular, consistent, or predictable basis” are not exempt from the in-person inspection requirement.

The physical inspection requirement would not apply to employees hired on or after April 1, 2021, who are working in a remote setting due to COVID-19-related precautions, under Section 274A of the INA, until they undertake non-remote employment on a “regular, consistent, or predictable basis,” or where the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

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We have great news for our readers. On August 19, 2020, the United States Citizenship and Immigration Services (USCIS) issued an important announcement for applicants whose Form I-765 Application for Employment Authorization has been approved, but who have not yet received their employment authorization document (EAD card) by mail.


What’s this all about

Since the emergence of the Coronavirus outbreak, there has been significant delays affecting the production of certain Employment Authorization Documents also known as EAD cards, which permit an applicant to obtain lawful employment in the United States, a driver’s license, and other important documentation such as a Social Security number.

These delays have caused hardships for applicants and created additional obstacles to finding employment during an already difficult economic time.

The good news is that USCIS is providing temporary relief for applicants who have received an approval notice, but have not yet received an employment authorization document (EAD card) in the mail.

Due to the unprecedented and extraordinary circumstances caused by COVID-19, USCIS will allow foreign nationals to temporarily use their Form I-797 Notice of Action, with a notice date on or after December 1, 2019 through August 20, 2020, informing the applicant of the approval of their I-765 Application for Employment Authorization, as evidence of Form I-9, Employment Eligibility Verification.

In other words, individuals can now provide employers with the I-797 Notice of Action, receipt of approval of the Form I-765 Application for Employment Authorization, in order to qualify for lawful employment.

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According to an internal memorandum, Immigration and Customs Enforcement (ICE) has plans to conduct a targeted enforcement operation at a national food service chain within the coming weeks. An ICE official spoke with The Daily Beast, on condition of anonymity, telling the news organization that ICE plans to conduct this operation to discourage American employers from exploiting undocumented workers by paying them low wages. Officials told the news organization that the operation will be targeting multiple locations across the United States, and that employers will likely be charged with federal offenses including harboring illegal aliens.

This move is the Trump administration’s latest attempt to deter illegal immigration through worksite enforcement actions, described by the administration as targeted operations to prosecute individuals who employ undocumented immigrants. If all goes to plan, the operation will be primarily focused on prosecuting owners of franchises who illegally employ undocumented immigrants. Sources with knowledge of the investigation have said that a preliminary investigation has already been conducted and that targets have already been chosen.

The food industry has and continues to be an industry that employs thousands of undocumented workers due to the unskilled nature of the work, and the fact that employers are able to cut costs by paying undocumented workers very low salaries. According to a 2008 Pew report, at least 10 percent of the hospitality industry is supported by the labor of undocumented immigrants. Last year, Eater reported that over 20% of all cooks working in restaurant kitchens could be undocumented. Noelle Stewart, communications manager for Define American, said that undocumented immigrants make up a crucial part of our economy in that, “they cultivate our produce; they cook our food,” she says, “the food industry wouldn’t be possible in the way it is without them.”

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The purpose of U.S. Immigration and Customs Enforcement (ICE) administrative inspection is to determine whether the employer has violated the prohibitions against hiring or continuing employment of unauthorized aliens and Form I-9 violations. Usually, a 72-hour notice will be given to employers preceding the ICE Form I-9 administrative inspection. The Notice of Inspection indicates the date, time, and place for the inspection and the documentation that the employer is requested to produce.

Form I-9 inspection may be conducted by any of the three authorized government agencies: Department of Homeland Security (DHS), the U.S. Department of Labor (DOL), or the U.S. Department of Justice Office of Special Counsel. DHS may initiate investigations after public complaints. Form I-9 inspection may be conducted either on the employer’s premises, at an agency office, or at the agency’s discretion. Employers that use electronic Form I-9 storage systems need only retrieve and reproduce the forms electronically retained in the storage system and supporting items requested by the inspecting agency.

If the employer does not comply with the request to present the forms and supporting documents, ICE may compel production by issuing a subpoena. A delay in the production of the forms and supporting documents may be considered a violation of compliance requirements. After a Form I-9 inspection, ICE will notify the employer as to its results. The current procedure is to notify the employer in writing of the result of the completed inspection. However, informal manner of notification may also been recognized as a valid notification as the Ninth Circuit has held that “even after an informal oral government notice, it is important for the employer to terminate the employee promptly to avoid knowingly continuing to employ violation.”

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