DHS expands flexibilities for immigration processes due to COVID


Since March 2020, the U.S. Department of Homeland Security (DHS) and its component agencies, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), have repeatedly expanded a number of 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, the ad hoc nature of the accommodations has also caused confusion and anxiety among stakeholders. This is especially true for companies that have permanently moved to fully remote or hybrid work environments, as it is unclear to what extent flexibility will continue to exist in a post-pandemic world.

Flexibility in I-9 compliance requirements

On December 15, 2021, USCIS and ICE announced that they had again extended flexibility for in-person Form I-9 compliance. As noted in a previous article, this flexibility allows employers whose entire workforce works remotely to defer the physical presence requirements associated with 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 precautions.

As part of this flexibility, eligible employers are not required to review employee identity and work authorization documents in person, and can instead inspect these documents remotely, using “a video link, fax or e-mail, etc.” Employers must also comply with the document retention and re-verification requirements described in more detail here.

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

DHS’s reluctance to extend these flexibilities for more than four months at a time also creates uncertainty for employers who have transitioned to fully remote or hybrid work environments, and plan to continue operating in this manner even after restrictions are lifted. COVID precautions. While DHS has asked for public input to understand the potential impact of future I-9 flexibilities, the agency has yet to announce any permanent changes to in-person I-9 verification requirements, and until whether it does, employers wonder to what extent they might have to go back to in-person I-9 verification in the future.

Flexibility in submitting original signatures

On March 20, 2020, USCIS announced that due to the national COVID-19 emergency, the agency would accept electronically reproduced original signatures, even for forms that previously required “wet” original signatures per USCIS instructions. form (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. Originally declared by President Trump on March 13, 2020, the national COVID-19 emergency was recently extended by President Biden by one year, until February 24, 2022.

While President Biden may well extend the National Emergency beyond February 2022, it is unclear whether USCIS will require original “wet” signatures again after the National Emergency expires. For companies and their legal representatives, such a reversal could create significant logistical obstacles and make full remote working arrangements untenable. That’s true, at least, until USCIS allows electronic filing of all immigration benefits, a process the agency expects to complete by FY2026, and which itself is strewn with uncertainties.

Flexibility to respond to agency requests

On December 30, 2021, USCIS announced further expansion of flexibilities for stakeholders responding to certain agency requests during the COVID-19 pandemic, including Requests for Supplemental Evidence (RFEs) and Notices of Intent refusal (NOID). 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 indicated on the request or notice. ‘opinion. The policy also provides some flexibility with respect to certain queries, appeals and hearing requests.

Under the most recent extension, this flexibility applies to requests, notices, or decisions issued on or before March 26, 2022. However, beyond March 26, DHS has not yet confirmed whether this flexibility will be enacted permanently (which would require DHS to go through the notice-and-comment rule-making process), or whether the agency will revert to the shorter timelines that were in place before the pandemic. As with the I-9 and signature flexibilities described above, a return to the prior policy could be a logistical challenge for stakeholders, especially until USCIS allows electronic filing for all medical benefits. ‘immigration. Even then, tighter timelines for responses to agency requests can remain problematic, as stakeholders often need to gather evidence overseas in order to respond to such requests, and it can take a long time to that COVID-19 and related restrictions continue to create delays, globally.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC All rights reserved.National Law Review, Volume XII, Number 18

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