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Homeland Security issues more flexibilities to ease pandemic-related challenges for employers

published in McAfee & Taft EmployerLINC | May 12, 2022

On February 18, 2022, President Biden extended the prior administration’s national emergency declaration regarding COVID-19. In an attempt to ease pandemic-related effects on employers and employees, the U.S. Department of Homeland Security implemented a series of temporary guidance.

Work permits automatically extended for up to 540 days for certain employees

On May 4, 2022 the U.S. Citizenship and Immigration Services (USCIS) implemented a Temporary Final Rule (“TFR”) that affords certain noncitizens an automatic extension of their work authorization documents for up to 540 days.

Before the pandemic, employees that timely filed an application to renew their employment authorization documents (“EADs”) would receive an automatic extension period of up to 180 days to bridge the gap between the EAD’s expiration date and the approval of the renewed EAD. But due to the pandemic and existing budgetary constraints, the backlog of cases pending before USCIS grew exponentially.

Prior to the TFR, employers were forced to terminate employees who were unable to produce updated work authorization documents simply because USCIS had yet to adjudicate the employee’s renewal application, or the employee had yet to receive their updated documents before the initial 180-day extension period lapsed.

To avoid further disruptions to business operations of the public and private sector, USCIS has automatically extended an employee’s EAD if (1) the employee’s EAD falls within one of the eligibility categories, (2) the employee timely filed a renewal application, and (3) the renewal application remains pending. Common eligibility categories are refugees, asylees, temporary protected status recipients, and spouses of E, L, and certain H visa holders. Of note, there are approximately 18 possible eligibility categories.

The TFR also extends equitable relief to those eligible employees who were terminated due to processing delays by allowing the eligible employee to resume employment if the employee is within the up to 540-day automatic extension period, and the USCIS has not issued a final decision on their renewal application.

Overall, the TFR is a major victory for businesses and its eligible employees. Now, employers may continue to employ their workforces without the threat of disruption to business operations. Similarly, employees may continue their employment without the threat of termination looming as a result of USCIS’s processing delays.

Form I-9 remote inspection extended for another 6-months

The U.S. Department of Homeland Security is continuing its interim guidance to allow employers to defer the Form I-9 in-person physical inspection requirements for its newly hired employees working in a remote environment as a pandemic-related precaution.

Now through October 31, 2022, an employer may opt to satisfy its Form I-9 obligations by verifying its remote employee’s identity and employment authorization documents via video link, facsimile, email, etc. However, once the employee returns to work on a regular, consistent, or predictable basis, or Homeland Security ends the temporary guidance, the employer must reinspect its remote employee’s identity and work authorization documents in their actual physical presence within three business days.

The interim guidance is a temporary departure from the regulations that sanction an employer’s failure to verify its employee’s identity and work authorization documents in the employee’s actual physical presence. That temporary departure is another major victory for employers … at least while it lasts. As you may recall, Homeland Security began implementing various iterations of the interim guidance back in March 2020. The current interim guidance, discussed here, was previously set to expire on April 30, 2022.

It’s unclear just how long the pandemic-related effects will linger. But implementing the temporary flexibilities can be nuanced. To learn more about the pandemic-related flexibilities or for assistance with any of your employment-based immigration needs, contact the author or McAfee & Taft’s Immigration & Compliance Group.