Tag: DHS

  • DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    by CUPA-HR | February 1, 2024

    On January 30, 2024, the Department of Homeland Security (DHS) announced a final rule to implement a new beneficiary-centric selection process for H-1B registrations. This rule, which also introduces start date flexibility for certain H-1B cap-subject petitions and additional integrity measures, is scheduled for publication in the Federal Register on February 2, 2024, and will become effective 30 days later.

    The rule does not finalize all the provisions in the H-1B Modernization Proposal from last October. Notably absent are changes to the definitions of H-1B specialty occupation, policies of deference to prior adjudications, and modifications to cap-gap protection, among others. DHS has indicated plans to publish a separate final rule to address these remaining aspects from October’s proposed rule.

    Summary of Key Changes

    • Beneficiary-Centric Selection Process. The final rule introduces a change in the H-1B registration selection process. Instead of a registration-based lottery system, DHS will now implement a beneficiary-centric approach. This means that each foreign worker (beneficiary) will be entered into the selection process once, irrespective of the number of registrations submitted on their behalf. This change is designed to offer a fairer, more equitable system and reduce the potential for manipulation.
    • Start Date Flexibility. The final rule provides more flexibility for the employment start dates in H-1B cap-subject petitions. Employers will now be allowed to file petitions with start dates that are after October 1 of the relevant fiscal year. This aligns with current DHS policy and removes previous restrictions, offering more convenience for employers and beneficiaries.
    • Enhanced Integrity Measures. Under the final rule, DHS codifies its ability to deny or revoke H-1B petitions in cases where the underlying registration contains a false attestation or is otherwise invalid. Additionally, the rule stipulates that DHS may deny or revoke the approval of an H-1B petition if issues arise with the H-1B cap registration fee, such as if the fee is declined, not reconciled, disputed, or deemed invalid after submission.

    With the final rule, DHS not only introduces key adjustments to the H-1B visa process but also sets the stage for efficiency enhancements. Starting February 28, 2024, USCIS will launch an online filing option for Forms I-129, Petition for a Nonimmigrant Worker, and Form I-907, Request for Premium Processing Service.

    In addition, USCIS will launch new organizational accounts in its online platform on February 28. These accounts are designed to enable collaboration within organizations and their legal representatives on H-1B registrations, petitions, and associated premium processing requests. While some details about this new account system and the e-filing function have been provided, USCIS is expected to release more comprehensive information in the coming weeks.



    Source link

  • DHS Announces Proposed Pilot Program for Non-E-Verify Employers to Use Remote I-9 Document Examination – CUPA-HR

    DHS Announces Proposed Pilot Program for Non-E-Verify Employers to Use Remote I-9 Document Examination – CUPA-HR

    by CUPA-HR | August 9, 2023

    On August 3, 2023, the Department of Homeland Security (DHS) published a notice in the Federal Register seeking comments on a potential pilot program to allow employers not enrolled in E-Verify to harness remote examination procedures for the Form I-9, Employment Eligibility Verification.

    Background

    DHS’s recent actions are built upon a series of moves aimed at modernizing and making more flexible the employment verification process. On July 25, 2023, the DHS rolled out a final rule enabling the Secretary of Homeland Security to authorize optional alternative examination practices for employers when inspecting an individual’s identity and employment authorization documents, as mandated by the Form I-9. The rule creates a framework under which DHS may implement permanent flexibilities under specified conditions, start pilot procedures with respect to the examination of documents, or react to crises similar to the COVID-19 pandemic.

    Alongside the final rule, DHS published a notice in the Federal Register authorizing a remote document examination procedure for employers who are participants in good standing in E-Verify and announced it would be disclosing details in the near future about a pilot program to a broader category of businesses.

    Key Highlights of the Proposed Non-E-Verify Remote Document Examination Pilot 

    DHS’s proposal primarily revolves around the following points:

    • Purpose: Immigration and Customs Enforcement (ICE) intends to gauge the security impact of remote verification compared to traditional in-person examination of the Form I99. This involves evaluating potential consequences like error rates, fraud and discriminatory practices.
    • Pilot Procedure: The new pilot program would mirror the already authorized alternative method for E-Verify employers, including aspects such as remote document inspection, document retention and anti-discrimination measures.
    • Eligibility: The pilot program is open to most employers unless they have more than 500 employees. However, E-Verify employers are excluded since DHS has already greenlit an alternative for them.
    • Application Process: Interested employers must fill out the draft application form, which DHS has made available online. This form captures details like company information, terms of participation, participant obligations, and more.
    • Information Collection: Employers wishing to join the pilot would be required to complete the formal application linked above. ICE would periodically seek data from these employers, such as the number of new hires or how many employees asked for a physical inspection.
    • Documentation: Participating companies must electronically store clear copies of all supporting documents provided by individuals for the Form I-9. They might also be required to undertake mandatory trainings for detecting fraudulent documents and preventing discrimination.
    • Onsite/Hybrid Employees: Companies might face restrictions or a set timeframe for onsite or hybrid employees, dictating when they must physically check the Form I-9 after the initial remote assessment.
    • Audits and Investigations: All employers, including pilot participants, are liable for audits and evaluations. DHS plans to contrast data from these assessments to discern any systemic differences between the new method and the traditional one.

    What’s Next: Seeking Public Comments by October 2 

    DHS is actively seeking feedback from the public regarding the proposed pilot and the draft application form. The department encourages stakeholders to consider and provide insights on the following points:

    • Practical Utility: Assess if the proposed information requirement is vital for the agency’s proper functioning and whether the data collected will be practically useful.
    • Accuracy and Validity: Analyze the agency’s estimation of the information collection’s burden, ensuring the methods and assumptions are valid.
    • Enhance Information Quality: Offer suggestions to improve the clarity, utility and overall quality of the data collected.
    • Minimize Collection Burden: Propose ways to ease the data collection process for respondents, exploring technological solutions such as electronic submissions.

    In light of this, CUPA-HR plans to carefully evaluate the notice and associated application. Based on its review, CUPA-HR is considering submitting comments to provide valuable insights to DHS. CUPA-HR will keep members apprised of any updates regarding this proposed pilot program and other changes to Form I-9 alternative examination procedures.



    Source link

  • DHS Announces Final Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    DHS Announces Final Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    by CUPA-HR | July 24, 2023

    On July 21, the Department of Homeland Security (DHS) announced a final rule permitting the Secretary of Homeland Security to authorize optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. The rule creates a framework under which DHS may implement permanent flexibilities under specified conditions, start pilot procedures with respect to the examination of documents, or react to crises similar to the COVID-19 pandemic.

    Simultaneously, DHS published a notice in the Federal Register authorizing an alternative document examination procedure. This provides employers who are participants in good standing in E-Verify with the option to remotely examine their employees’ identity and employment authorization documents via a live video interaction.

    Background

    Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. In response to the COVID-19 pandemic, DHS introduced temporary flexibilities in March 2020, enabling employers to remotely review these documents. This virtual inspection was to be succeeded by a physical examination within three business days once normal operations resumed. These flexibilities, extended multiple times, are set to expire on July 31, 2023.

    Due to the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic, DHS issued a Request for Public Input (RPI) on October 26, 2021, concerning remote document examination. This move initiated a discussion on whether these leniencies should be extended permanently. After examining the comments responding to the RPI, DHS proposed a framework on August 18, 2022, empowering the Secretary to extend these flexibilities. CUPA-HR submitted comments in response to the RPI (see here) and proposal (see here) encouraging DHS to move forward expediently and ensure that a remote review process remains available following the end of the COVID-19 Flexibilities.

    Details of the Alternative Procedure

    From August 1, 2023, eligible employers can start using the alternative procedure as outlined in the Federal Register notice. The conditions include: (1) restricting participation to E-Verify participants in good standing; (2) broadening document retention requirements to include clear and legible copies of all Form I-9 documents; (3) requiring E-Verify training on fraud awareness and antidiscrimination; and (4) holding a live video interaction after the employee transmits a copy of the document(s) to the employer.

    Employers participating in E-Verify, who created a case for employees whose documents were examined during the COVID-19 flexibility period (March 20, 2020 to July 31, 2023), can opt for the new alternative procedure from August 1, 2023 to satisfy the required physical examination of the employee’s documents for that Form I-9. Conversely, employers not enrolled in E-Verify during the flexibility period must complete a physical examination in-person by August 30, 2023 as outlined in the Agency’s May 4 announcement.

    What’s Next

    Looking ahead, DHS continues to expand its efforts to streamline employment verification procedures. As part of this endeavor, the department is gearing up to roll out a pilot program offering a remote examination option not just to E-Verify-enrolled employers but also to a broader category of businesses. This pilot program is expected to inform decisions about a comprehensive expansion of the remote examination option.

    Simultaneously, DHS is preparing to issue a new edition of Form I-9. Dated August 1, 2023, the new form will become the standard for all employers starting November 1, 2023. Until then, employers can still use the previous edition dated October 21, 2019, through October 31, 2023. It’s important to note, however, that if an employer chooses to utilize the 2019 edition in conjunction with the new alternative remote inspection procedure, they must mark “alternative procedure” in the Additional Information field in Section 2 of Form I-9.

    According to DHS, more details about the new Form I-9 and the pilot program will be disclosed in the near future. CUPA-HR will continue to monitor these developments and keep members apprised as they are announced.

     



    Source link

  • DHS Extends I-9 Flexibility Guidance Through July 2023 – CUPA-HR

    DHS Extends I-9 Flexibility Guidance Through July 2023 – CUPA-HR

    by CUPA-HR | October 12, 2022

    On October 11, the Department of Homeland Security (DHS) announced a further extension of the flexibilities on Form I-9 compliance requirements that have been in place since the onset of the COVID-19 pandemic. The guidance was set to expire October 31, but has now been extended through July 31, 2023.

    The guidance will continue to allow for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    On August 18, the DHS published a Notice of Proposed Rulemaking which would create a framework under which the Secretary would be authorized to extend the flexibilities on a more permanent basis. Given the length of time the rulemaking process takes, CUPA-HR is grateful for the DHS’s extension of the Form I-9 flexibilities.



    Source link

  • DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    by CUPA-HR | August 23, 2022

    On August 18, the Department of Homeland Security (DHS) published in the Federal Register its anticipated Notice of Proposed Rulemaking (NPRM) on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. Interested stakeholders can submit comments on the NPRM through October 17.

    Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. The proposed rulemaking, however, would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax or email.

    As explained in the NPRM, the proposal does not directly allow employers or agents acting on the employer’s behalf to use such alternative examination options, but instead would create a framework under which the Secretary would be authorized to extend the flexibilities. The Secretary would be authorized to implement the alternative options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    The DHS is issuing this rulemaking following the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic. In March 2020, the DHS’s Immigration and Customs Enforcement deferred its physical examination requirements for Form I-9 and relaxed its enforcement. Employers were allowed to review documents through video, fax or email so long as they also retained copies of the documents. The policy proved successful and was extended several times, but is currently set to expire October 31, 2022. It may still be extended as the agency pursues this rulemaking.

    In December 2021, CUPA-HR submitted comments to the DHS in response to the agency’s Request for Public Input on remote document examination. In its comments, CUPA-HR reported the results of the survey it conducted of member institutions’ experiences with the agency’s Form I-9 flexibilities. CUPA-HR members reported positive experiences with the changes and said they did not run into challenges with implementation. Respondents strongly supported a permanent option for remote document examination and said the policy provides numerous benefits for higher education institutions, including providing more flexibility for remote work, reducing the time needed to complete document verification and reducing institutions’ paperwork burden. Respondents also criticized physical document examination as overly burdensome.

    CUPA-HR plans to submit comments on the NPRM and will likely ask members for their input in the coming weeks.



    Source link

  • DHS to Temporarily Increase the Automatic Extension Period of Work Permits for Certain Visa Applicants – CUPA-HR

    DHS to Temporarily Increase the Automatic Extension Period of Work Permits for Certain Visa Applicants – CUPA-HR

    by CUPA-HR | May 4, 2022

    Effective May 4, U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) to increase the automatic extension period of expiring employment authorization documents (EADs) for certain renewal applicants from 180 days to 540 days.

    Specifically, the TFR applies to three groups of applicants in EAD categories currently eligible for the previous 180-day automatic extension of employment authorization and EAD validity. They are as follows:

    • Renewal applicants whose renewal Form I-765 application remains pending as of May 4, 2022, and whose EAD has not expired or whose current 180-day auto-extension has not yet lapsed.
    • New renewal applicants who file Form I-765 during the 18-month period following the rule’s publication to avoid a future gap in employment authorization and/or documentation.
    • Renewal applicants with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity beginning on May 4, 2022, and lasting up to 540 days from the expiration date of their EAD.

    Categories that are eligible for the lengthened automatic extension can be found here and include refugees and asylees (a3 and a5), spouses of certain H-1B principal non-immigrants with an unexpired I-94 showing H-4 non-immigrant status (c26), and adjustment of status applicants (c9), among others.

    The TFR is part of a trio of efforts USCIS announced on March 29, 2022, to address the agency’s major backlogs and crisis-level processing delays. According to USCIS Director Ur M. Jaddou, “as USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient,” and this temporary rule is necessary to “provide those non-citizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers.”

    CUPA-HR will continue to monitor the implementation of the new auto-extension period and keep members apprised of further developments.



    Source link

  • DHS Extends I-9 Flexibility Guidance Through October – CUPA-HR

    DHS Extends I-9 Flexibility Guidance Through October – CUPA-HR

    by CUPA-HR | April 25, 2022

    On April 25, the Department of Homeland Security announced another extension of the Form I-9 compliance flexibilities that was initially granted in 2020. The guidance was set to expire on April 30 but has now been extended through October 31, 2022.

    The guidance will continue to allow for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    Last week, CUPA-HR and the American Council on Education (ACE) sent a letter to United States Citizenship and Immigration Services (USCIS) Director Ur Jaddou asking for this additional extension as colleges and universities continue to rely on such flexibilities during a period where institutions are facing worker shortages and a tight labor market that have caused institutions to turn to out-of-state professionals and faculty to fill open positions. Additionally, the letter noted that DHS is pursuing options to modernize the Form I-9 examination requirements through the formal rulemaking process, which may lead to a permanent option for remote inspection.

    CUPA-HR is once again grateful for DHS’s swift response and extension of the Form I-9 flexibilities. We will keep members apprised of any updates on both this guidance and future Form I-9 regulatory activity.

     

     

     

     



    Source link

  • DHS Extends I-9 Flexibility Guidance Another Four Months – CUPA-HR

    DHS Extends I-9 Flexibility Guidance Another Four Months – CUPA-HR

    by CUPA-HR | December 17, 2021

    On December 15, the Department of Homeland Security (DHS) announced a further extension of the flexibilities on Form I-9 compliance requirements that was initially granted last year. The guidance, which was slated to expire on December 31, 2021, has been extended through April 30, 2022.

    The guidance will continue to allow for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    Earlier this week, CUPA-HR and 11 other higher education associations sent a letter to United States Citizenship and Immigration Services (USCIS) Director Ur Jaddou asking for this additional extension in light of the uncertainty posed by the Omicron variant and encouraging DHS to announce the extension on or before December 17, 2021.

    CUPA-HR is grateful for DHS’s swift response and will be submitting comments in response to DHS’s Request for Public Input on document examination practices for Form I-9.



    Source link

  • DHS Issues Request for Public Comment on Form I-9 Employment Verification – CUPA-HR

    DHS Issues Request for Public Comment on Form I-9 Employment Verification – CUPA-HR

    by CUPA-HR | October 27, 2021

    On October 26, 2021, the Department of Homeland Security (DHS) issued a Request for Public Input (RPI) “seeking comments from employers, employer organizations, employee groups, and other members of the public on document examination practices for Form I-9, Employment Eligibility Verification.” 

    The RPI is the agency’s next step in determining whether the remote document examination flexibilities that have been in place since the beginning of the COVID-19 pandemic should be continued on a permanent basis. Comments are due on or before December 27, 2021.

    Background

    On March 20, 2020, DHS announced employer flexibility guidance to defer the physical presence requirements associated with Form I-9 for 60 days. The guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    The guidance has been extended continuously throughout the pandemic. Issued on August 31, the latest extension to the flexibility guidance was granted through December 31, 2021, following advocacy efforts from CUPA-HR and other stakeholders who expressed a dire need for DHS to maintain the flexibility in light of surging cases of the delta variant.

    Request for Public Input

    The RPI includes a list of questions grouped into two categories: “Experiences with Pandemic-Related Document Examination Flexibilities” and “Considerations for Future Remote Document Examination Procedures.” As DHS considers winding down the flexibility guidance, the RPI will provide the department with important feedback from employers who have conducted remote inspection and “inform and improve DHS policies and processes” regarding “alternative options to physical document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes” moving forward.

    The flexibility guidance has been instrumental to institutions of higher education during the pandemic. As such, CUPA-HR intends to engage our members and submit robust comments in response to the RPI. ​Look for more details and your chance to contribute your feedback in the coming weeks.



    Source link