Over the past two weeks, US agencies with immigration regulatory authority have issued new guidelines to ease employer obligations while employees stay home during the COVID-19 national emergency.  In addition, accelerated filings review has been restricted. The announcements are summarized below.

Actions to Ease Employer Obligations During Temporary Period

  • I-9 Onboarding.  US Immigrations and Customs Enforcement (ICE) released updated I-9 guidance that provides employers with flexibility by amending the physical presence requirements associated with I-9 completion and document review to allow for virtual review, subject to certain prescribed steps, for a period of 60 days or within 3 days of termination of the national emergency, whichever is first.  The exception applies to employers who have instituted a formal work from home (WFH) telework policy.  Mayer Brown has previously reported on use of remote agents, including adult members of the worker’s household, as well as virtual exchange of documents, for global right to work (RTW) validation purposes.  See I-9 Guidance (March 11, 2020) and RTW guidance (March 18, 2020).  We will be issuing a new post this weekend outlining the new I-9 options addressed in the ICE announcement.
  • Additional Time to Resolve E-Verify Tentative Nonconfirmations.  The U.S. Department of Homeland Security (DHS), E-Verify, has announced an extension of the timeframe to take action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve DHS TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.
  • Labor Condition Application (LCA) and PERM Labor Certification (PERM) Requirements.  US Department of Labor (DOL) published a Round 1 Frequently Asked Questions (FAQ) document to address how employers must comply with the rules associated with PERM filing or response deadlines and posting requirements for LCAs and PERM Notices.  Deadlines for certain PERM processes, such as responding to a request for audit documentation, that fall within the period from March 13 through May 12, 2020 will be extended, subject to specific processes, through May 12, 2020.  For employers who initiated PERM recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020, i.e., on or after September 15, 2019, the DOL will accept PERM recruitment and PERM Notice of Filing postings completed within 60 days after the regulatory deadlines have passed, i.e., by May 12, 2020.  For approved LCAs where the worker has been moved to a new worksite, if the new worksite is within the same area of intended employment and does not involve a material change to the terms and conditions of employment, the employer does not need to file a new LCA but is required to provide notice at the new worksite as soon as practical and no later than 30 calendar days after the worker begins work at the new location.  The DOL may issue additional FAQs that expressly address LCA and related requirements for employers who have moved to WFH telecommuting because of the COVID-19 national emergency.  In the interim Mayer Brown is preparing guidance on options employers may undertake now.
  • Electronically Reproduced Original Signatures Temporarily Acceptable.  Beginning March 21, 2020, US Citizenship and Immigration Services (USCIS) will accept all benefit forms and documents with reproduced original signatures, including Form I-129, Petition for Nonimmigrant Worker.  According to the USCIS announcement of March 20, 2020, electronically reproduced signatures will be accepted for forms ordinarily requiring an original “wet” signature, per form instructions, for the duration of the national emergency.  The announcement specifically states, “This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.” The employer should retain copies of the original documents containing the “wet” signature, which USCIS may request in future, which, if not produced, may adversely affect the decision on the application or petition.  The temporary change applies only to signatures; all other form instructions should be followed when completing a form.
  • Request for Evidence Deadlines Extended. USCIS announced on March 27 that applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, may submit responses within 60 calendar days after the response deadline set forth in the RFE or NOID.  USCIS announced on March 30 that this flexibility will be expanded to certain NOIR and NOIT regional investment centers, as well as certain filing date requirements for appealable decisions within AAO jurisdiction, so long as the request, notice, or decision is dated between March 1 and May 1, 2020.
  • In-Person Appointments Temporarily Curtailed. As of March 18, USCIS temporarily suspended in-person services at its field offices, asylum offices, and Application Support Centers (ASCs) to help slow the spread of Coronavirus 2019 (COVID-19). USCIS offices are slated to reopen on April 7 unless the public closures are extended further. USCIS will provide emergency services for limited situations. To schedule an emergency appointment contact the USCIS Contact Center.

Premium Processing Suspension

On March 20, 2020, USCIS also implemented suspension of all premium processing requests for filings made on Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker.  While premium processing is suspended, petitioners may submit a request to expedite their petition if it meets certain criteria, as denoted by USCIS on its Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria. All expedite requests will be reviewed on a case-by-case basis and requests granted at the discretion of USCIS office leadership.