DHS & USCIS Workplace Compliance News & Resources
If you are hiring or already have employees from another country, you may need to follow the U.S. Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) workplace compliance news and resources as it relates to visa lotteries, I-9 verification forms, and more.
Here is the news we’ve seen so far from DHS. Stay on top of safety and compliance the right way with this information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business.
Past DHS Workplace Compliance News
Who: All employers
When: Effective immediately
As of September 26, 2022, the U.S. Citizenship and Immigration Services (USCIS) extended the validity of permanent resident cards from 12 months to 24 months. Those eligible for the extension are lawful permanent residents who have filed an application (Form I-90) to renew their green card.
Employees may present their expiring or expired green card with the Form I-90 receipt notice as evidence of continued status. Those individuals that have misplaced a green card or are waiting for a replacement card must contact the USCIS Contact Center and make an appointment.
How:
- Update your documentation as needed to reflect the extended validity period for permanent resident cards.
Additional Resources:
Who: All employers
When: Effective immediately
On October 11, 2022, the Department of Homeland Security announced that employers should continue to use the I-9 form that is set to expire on October 31, 2022. The Department of Homeland Security will make another announcement when it releases the new I-9 form.
How:
- Watch for the announcement of the new I-9 form in the Federal Register.
Additional Resources:
Update 10/18/2022: The United States Department of Homeland Security has announced another extension of the 1-9 flexibilities for remote inspection. The expiration date of the policy introduced in 2020 is now set for July 31st, 2023. US employers are still permitted to use the I-9 form that expires on October 31st, 2022 until a further announcement is made regarding the release of an updated form.
Who: United States employers and employees
When: Effective immediately
What: On April 25th, 2022, the United States Department of Homeland Security announced the 13th extension of its Form 1-9 flexibility policy for employers. Due to continued COVID-19 precautions, the DHS has extended the expiration date of its 2020 policy from April 30th, 2022 to October 31st, 2022.
The initial 1-9 guidance grants remote employees hired on or after April 1st, 2021 exemption from the in-person requirements associated with Form I-9’s Employment Eligibility Verification. With the 1-9 flexibility in place, employers are not required to review a remote employee’s identity and employment authorization documents within the employee’s physical presence. Employers must obtain copies of these documents within three business days of completing section 2 of 1-9, and enter “COVID-19” as the stated reason for the physical inspection delay in Form 1-9’s Section 2 Additional Information field.
Per the authority of the United States Immigration and Customs Enforcement, this flexibility does not apply to employees who are physically present at a work location on a regular, consistent, or predictable basis. The DHS states that it will continue to monitor the ongoing COVID-19 pandemic and provide updated guidance as needed.
How:
Update your Form I-9 compliance procedures to reflect the flexibility extension.
Educate and inform your employees about how the Form 1-9 flexibility extension affects them.
Additional Resources:
Who: All employers
When: Comments due August 8, 2022
What: The Department of Homeland Security published Federal Register notice 87 FR 18377 on March 30, 2022, which solicits public comment on its proposed revisions to Form I-9. The current Form I-9 expires on October 31, 2022. This is the second required comment period, which lasts for 30 days. Members of the public may review the proposed changes and submit comments no later than August 8, 2022.
How:
- Review the proposed changes on the I-9 and submit comments no later than August 8, 2022.
Additional Resources:
Who: All employers
When: Effective immediately
What: Effective May 4, 2022, the Department of Homeland Security (DHS) published a temporary final rule that temporarily increases the automatic extension of expiring employment authorization documents (EADs) for certain applicants. The temporary rule expires on October 15, 2025. DHS is accepting public comments at regulations.gov on the temporary final rule until July 5, 2022.
The extension period has increased from 180 days to 540 days from May 4, 2022, to October 26, 2023. The agency hopes to catch up with its caseload and achieve a three-month cycle time for processing EAD applications by the end of fiscal year 2023. Starting on October 27, 2023, the automatic extension of expiring employment authorization documents (EADs) will revert to 180 days.
The criteria for receiving the automatic extension have not changed. The rule applies to noncitizens currently covered by 180-day automatic extensions and to noncitizens with pending and timely filed EAD renewal applications in cases where their EADs have expired, and automatic extensions have lapsed. Examples of categories covered include green card applicants, spouses of H-1B and L visa recipients, and workers granted Temporary Protected Status. There is a list of categories eligible for automatic extensions on the Automatic Employment Authorization Document Extension page of the U.S. Citizenship and Immigration Services (USCIS) website. This rule will not impact applicants that need initial approval to work in the U.S.
For employers to complete a Form I-9 for someone eligible for the new 540-day extension, employees must present a Form I-797C Notice of Action receipt notice showing a timely filed EAD renewal in the same category as the expired EAD. If an employer has terminated a worker because their 180-day extension has expired, the employer may reverify or complete a new Form I-9.
How:
- Abide by the employment verification procedures according to the law.
- Monitor for the updated M-274 Employer Manual to be released by USCIS.
Additional Resources:
Who: All employers with H-2B employees
When: Effective immediately
What: The H-2B visa program is a lottery system that allows employers to petition the Department of Homeland Security (DHS) for temporary work visas for foreign workers. Due to the strong demand for workers in the U.S. labor market, the DHS announced that it is making an additional 35,000 H-2B visas available for foreign workers starting work between April 1, 2022, and September 30, 2022.
Of the 35,000 visas, 23,500 will be set aside for returning H-2B workers—those who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Haiti, and Honduras (whether they are returning H-2B workers or not).
Workers who are exempt from the H-2B cap include:
- H-2B workers in the U.S. who extend their stay, change employers, or change the terms and conditions of their employment;
- Fish roe processors, fish roe technicians, and their supervisors; and
- Workers who work in the Commonwealth of Northern Mariana Islands or Guam.
The addition of these visas more than doubles the amount that is normally granted for summer workers. By granting the additional visas, the DHS intends to support American businesses and give foreign workers more opportunities to come to the U.S. Employers must go through the usual petition process and wait for approval, then the worker must apply for an H-2B visa abroad.
How:
- Start the petition process as quickly as possible for additional H-2B workers.
Additional Resources:
Who: United States employers and employees
When: Effective May 1, 2022
What: On March 17, 2022, the Department of Homeland Security announced that the temporary policy that granted employers the ability to accept expired 1-9 documents from employees is coming to an end. Starting May 1, 2022, employers will only accept unexpired list B documents from employees, including driver’s licenses and state ID cards.
Employers are required to update the 1-9 documents of current employees who previously provided expired List B documents between May 1, 2020, and April 30, 2022. The deadline for this update is currently set for July 31, 2022.
Employers who are presented with a new employee identification document should enter the title, number, issuing authority, and expiration date in the Additional Information Field of Section 2 of the Form I-9 with the initial and date by the employer verifying the change.
No action is required if:
- An employee who previously presented an expired 1-9 document is no longer employed by the company.
- The List B document was auto extended by the issuing authority so that it was unexpired when presented
How:
Review your current policies and procedures and update them to comply with the policy.
Additional Resources:
U.S. Citizenship and Immigration Services LIST B: Documents That Establish Identity
Who: All employers
When: Effective immediately
What: On March 3, 2022, Secretary of Homeland Security Alejandro Mayorkas announced that the Department of Homeland Security is granting Temporary Protected Status to undocumented Ukrainians in response to the ongoing war between Russia and Ukraine. Temporary Protected Status is a program that allows persons whose home countries are considered unsafe for reasons of war, natural disaster, or other upheaval the right to live and work in the United States for a period of time. Ukrainian persons eligible for protection are those who do not have legal documentation and were residing in the U.S. prior to March 1, 2022.
The Temporary Protected Status will last for 18 months and allows protected persons to live and work in the United States. Approximately 75,100 Ukrainians are eligible to apply. Under this rule, Ukrainians that attempt to travel to the U.S. after March 1, 2022, will not be able to apply for Temporary Protected Status.
How:
- Continue to monitor for the release of the Federal Register Notice that will have additional information on applying for Temporary Protected Status.
Additional Resources:
Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months (Press Release)
Who: United States employers and employees
When: Effective immediately until October 31, 2022
What: On April 25, 2022, the United States Department of Homeland Security extended the I-9 flexibility from April 30, 2022 to October 31, 2022.
Background: On December 15, 2021, the United States Department of Homeland Security extended the flexibilities related to Form 1-9 compliance for employers. Due to continued COVID-19 precautions, the DHS has extended its 2020 policy until April 30, 2022. Aside from the extension, the guidance remains the same as before.
The initial 1-9 guidance grants remote employees hired on or after April 1, 2021 exemption from the in-person requirements associated with Form I-9’s Employment Eligibility Verification. With the 1-9 flexibility in place, employers are not required to review a remote employee’s identity and employment authorization documents within the employee’s physical presence. Employers must obtain copies of these documents within three business days of completing section 2 of 1-9, and enter “COVID-19” as the stated reason for the physical inspection delay in Form 1-9’s Section 2 Additional Information field.
Per the authority of the United States Immigration and Customs Enforcement, this flexibility does not apply to employees who are physically present at a work location on a regular, consistent, or predictable basis. The DHS states that it will continue to monitor the ongoing COVID-19 pandemic and provide updated guidance as needed.
How:
- Update your Form I-9 compliance procedures to reflect the flexibility extension.
- Educate and inform your employees about how the Form 1-9 flexibility extension affects them.
Who: All employers
When: Comments due December 27, 2021
What: In light of the COVID-19 emergency, the U.S. Department of Homeland Security (DHS) allowed employers to examine identity documents remotely (aka remote verification for Form I-9). They extended that option several times, with a final date of December 31, 2021. Now the agency is exploring the possibility of offering the option permanently.
On October 26, 2021, DHS United States Citizenship and Immigration Services (USCIS) requested comments on alternatives to physical document examination that are equally or more secure options for identity and employment eligibility verification. They are also soliciting feedback on whether imposing certain conditions would affect employers’ desire or ability to use remote verification procedures. Some of the proposed conditions are enrollment in E-Verify, image quality requirements, and required training. Comments are due by December 27, 2021.
How:
- Submit comments through the Federal Rulemaking Portal by December 27, 2021. Refer to docket number USCIS-2021-0022.
Additional Resources:
Who: All employers
When: Use the new form by November 1, 2023
Employers must use the new Form I-9 published by the U.S. Citizenship and Immigration Services by November 1, 2023, or they may face penalties. Employers use the I-9 to verify that employees are authorized to work in the United States. The new form has shorter instructions, is more user-friendly, and is fillable on mobile or tablet devices. This version of the form will expire on July 31, 2026.
How:
- Start using the new Form I-9 by November 1, 2023.
Additional Resources:
Final Rule
Employment Eligibility Verification Form I-9
I-9, Employment Eligibility Verification Website
Instructions for Form I-9, Employment Eligibility Verification
Optional Alternative 1 to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9)
E-Verify Webinars
Who: All employers
When: Use the new Form I-9 by November 1, 2023
The U.S. Citizenship and Immigration Services (USCIS) released a new Form I-9 on August 1, 2023. Employers can use the old Form I-9 (Rev. 10/21/19) until October 31, 2023, but must start using the new form by November 1, 2023. The new form is more user-friendly and fillable on mobile or tablet devices. Changes include:
- Sections 1 and 2 are now on one single-sided sheet;
- Section 1, Preparer/Translator Certification, is a separate page called Supplement A;
- Section 3, Reverification and Rehire, is a separate page called Supplement B;
- The Lists of Acceptable Documents page now includes receipts workers can present in lieu of another document for a temporary period and guidance and links to information about automatic extensions of authorization documentation;
- Fields can be left blank rather than entering N/A;
- The instructions are 8 pages in length instead of 15 pages; and
- Employers can check a box to indicate they examined Form I-9 documentation remotely.
A U.S. Department of Homeland Security (DHS) final rule, published on July 25, 2023, allows the agency to conduct a pilot program where employers conduct remote document examinations. Employers in good standing with E-Verify can now receive digital copies of identification documents, then conduct a live video call where the worker shows the documents again.
Employers who a) do not use E-Verify, b) hired employees after March 20, 2020, and c) have not yet conducted an in-person examination of identity and employment documents must conduct the in-person physical examination by August 30, 2023. Employers who were enrolled in E-Verify at the time may use the remote examination process in lieu of an in-person examination.
Employers are not required to offer an alternative procedure. If an employer offers the remote examination procedure, they must do so consistently so as not to discriminate. An employer may choose to offer the alternative procedure only to remote workers while requiring on-site workers to physically submit documents.
How:
- Start using the new Form I-9 by November 1, 2023.
Additional Resources:
Employment Eligibility Verification Form I-9
I-9 Employment Eligibility Verification Website
Instructions for Form I-9 Employment Eligibility Verification
New Form I‑9 Notice Published Allowing E‑Verify Employers to Remotely Examine Form I‑9 Documents
Who: E-Verify users
When: By June 24, 2023
On June 24, 2023, United States Citizenship and Immigration Services (USCIS) will dispose of E-Verify records that are over 10 years old (updated on or before Dec. 31, 2012). Employers that use E-Verify who want to download a record of case information must download a Historic Records Report by June 23, 2023. Employers should retain the Historic Records Report with the Forms I‑9. This process helps with security as well as privacy risks of personal identifiable information retained by the U.S. government.
How:
- Download your Historic Records Report by June 23, 2023.
- Retain the report with the Forms I-9.
Additional Resources:
Who: All employers
When: Effective immediately
The U.S. Citizenship and Immigration Services (USCIS) announced that it will issue redesigned Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents beginning January 30, 2023. The agency stated that the new designs contain state-of-the-art technology that continues to safeguard national security. Current Permanent Resident Cards are valid until their expiration date.
How:
- Familiarize all hiring managers and HR personnel with the design changes so that you can accurately review and verify employment authorization.
Additional Resources:
12.1 List A Documents That Establish Identity and Employment Authorization
Who: Employers with new prospective H-1B–status employees
When: Register by noon on March 17, 2023
The U.S. Citizenship and Immigration Services (USCIS) announced that the registration period for the fiscal year 2024 H-1B lottery opens on March 1, 2023, and the deadline is noon on March 17, 2023. Unless an exception applies, employers must complete their registrations for brand-new prospective H-1B employees on the USCIS online H-1B registration system, myUSCIS. Employers do not need to register foreign workers already in H-1B status.
H-1B employees are temporary workers from a foreign country who have highly specialized knowledge in certain occupations, and a bachelor’s degree or higher in that specific specialty. There are 65,000 H-1B visas available for those workers with a bachelor’s degree and 20,000 H-1B visas available for those workers with a U.S.-based master’s degree. Because registrations typically vastly outnumber the number of available visas, the USCIS established a lottery system.
The USCIS will notify myUSCIS account holders of the status of their registrations by March 31, 2023. Employers then have 90 days to file H-1B petitions for selected registrations for a visa start date of October 1, 2023.
How:
- Register for H-1B visas by noon on March 17, 2023.
Additional Resources:
Who: All employers
When: Comment by March 6, 2023
On January 4, 2023, the U.S. Citizenship and Immigration Services (USCIS) proposed a significant increase in a number of immigration filing fees for employers who sponsor foreign workers. USCIS relies heavily on user fees rather than congressional funding and stated that the increased fee would allow it recover operating costs, reestablish and maintain timely case processing, and prevent future case backlogs.
The agency is seeking public comment on the proposed rule, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” Comments are due by March 6, 2023. After the 60-day comment period, the agency will review the comments and publish a final rule.
How:
- Submit your comments by March 6, 2023.
- Secure visas before the fee increases take effect.
Additional Resources:
U.S. Citizenship and Immigration Services Proposed Fee Rule Frequently Asked Questions
Who: All employers
When: Comments due by May 31, 2022
What: The current Form I-9, which employers use to verify and document employment eligibility, expires on October 31, 2022. The U.S. Citizenship and Immigration Services (USCIS) is seeking comments on its proposed changes to the form until May 31, 2022. The agency is proposing these changes to clarify and simplify the form and instructions, and slightly reduce the amount of time it takes to complete the form. Changes include:
- Reducing the instructions from 15 to 7 pages;
- Condensing Sections 1 and 2 to one page;
- Moving Section 3 to its own separate page titled “Reverification and Rehire Supplement to the Form I-9,” which employers would use only if needed;
- Updating the Lists of Acceptable Documents to include a link to List C documents (on the USCIS website) and the acceptable receipts listed in 8CFR 274a.2(b)(1)(vi)(A-C);
- Removing electronic PDF enhancements to ensure that the form can be completed on all electronic devices;
- Elimination of the N/A requirement, which means fields that aren’t applicable could be left blank instead of having to fill in “N/A”;
- Moving the A-number, I-94, and Foreign Passport boxes into one box;
- Deleting the QR code box; and
- Replacing the term “alien” with “noncitizen.”
How:
- Submit comments at Regulations.gov by May 31, 2022.
Additional Resources:
Who: E-Verify users
When: Effective April 30, 2022
What: As of April 30, 2022, U.S. Citizenship and Immigration Services will no longer support access to the E-Verify system on the Internet Explorer 11 web browser. E-Verify is an Internet-based system that allows employers to verify a worker’s eligibility for employment in the United States. The agency is discontinuing support of Internet Explorer 11 because Microsoft is discontinuing support of the IE 11 desktop application as of June 15, 2022.
How:
- Switch to Apple Safari, Google Chrome, Microsoft Edge, or Mozilla Firefox to access E-Verify.
Additional Resources:
E-Verify Discontinues Support for Internet Explorer 11 (Press Release)
Who: Employers with new prospective H-1B–status employees
When: Register by March 18, 2022
What: The U.S. Citizenship and Immigration Services (USCIS) announced that registration for the fiscal year 2023 H-1B lottery will open on March 1, 2022, at noon and close on March 18, 2022. Unless an exception applies, employers must complete their registrations for brand-new prospective H-1B employees on the USCIS online H-1B registration system, myUSCIS. Employers do not need to register foreign workers already in H-1B status.
H-1B employees are temporary workers from a foreign country who have highly specialized knowledge in certain occupations, and a bachelor’s degree or higher in that specific specialty. There are 65,000 H-1B visas available for those workers with a bachelor’s degree and 20,000 H-1B visas available for those workers with a U.S.-based master’s degree. Because registrations typically vastly outnumber the number of available visas, the USCIS established a lottery system.
The USCIS will notify myUSCIS account holders of the status of their registrations by March 31. Employers then have 90 days to file H-1B petitions for selected registrations for a visa start date of October 1, 2022.
How:
- Register new prospective H-1B employees in the online USCIS registration system by March 18, 2022.
Additional Resources:
Who: Employers that use E-Verify
When: Download covered records by March 31, 2022
What: E-Verify is an online system employers can use to verify workers’ eligibility to work in the U.S. On April 1, 2022, the U.S. Citizenship and Immigration Services (USCIS) will purge E-Verify records dated on or before December 31, 2011. Employers have until March 31, 2022, to log in to their myUSCIS account and download their own data from the Historic Records Report.
How:
- Download your covered E-Verify records by March 31, 2022.
Additional Resources:
E-Verify Records Retention and Disposal Fact Sheet
Instructions to Download Historic Records Reports in E-Verify
