Homeland Security issues more flexibilities to ease pandemic-related challenges for employers | McAfee and Taft

Homeland Security issues more flexibilities to ease pandemic-related challenges for employers |  McAfee and Taft

On February 18, 2022, President Biden extended the previous administration’s national emergency declaration regarding COVID-19. In an attempt to ease the pandemic-related effects on employers and employees, the US Department of Homeland Security has put in place a series of temporary guidelines.

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

On May 4, 2022, US Citizenship and Immigration Services (USCIS) implemented a temporary final rule (“TFR”) that grants certain non-citizens an automatic extension of their immigration documents. work authorization for up to 540 days.

Prior to the pandemic, employees who timely submitted 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 expiration date of the EAD and the approval of the EAD. EAD renewed. But due to the pandemic and existing budget constraints, the backlog of cases pending before USCIS grew exponentially.

Prior to TFR, employers were forced to terminate employees who were unable to produce updated work authorization documents simply because USCIS had not yet adjudicated the employee’s renewal application, or the employee had not yet received their updated documents earlier. of the initial 180-day extension period. elapsed.

To prevent further disruption to public and private sector business operations, USCIS has automatically extended an employee’s EAD if (1) the employee’s EAD falls within one of the eligibility categories, (2) the employee filed a renewal on time and (3) the renewal application is still pending. Common eligibility categories are refugees, asylees, Temporary Protected Status recipients, and spouses of E, L, and certain H visa holders. It should be noted that 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 automatic extension period of up to 540 days, and USCIS has not issued a final decision on your renewal application.

Overall, the TFR is a huge win for businesses and their eligible employees. Employers can now continue to employ their workforce without the threat of disruption to business operations. Similarly, employees can continue their employment without the threat of imminent termination as a result of USCIS processing delays.

Remote inspection of Form I-9 extended for another 6 months

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

Now through October 31, 2022, an employer may choose to fulfill their Form I-9 obligations by verifying their remote employee’s identity and employment authorization documents via video link, fax, email , etc. However, once the employee returns to work on a regular, consistent, or predictable schedule, or the Department of Homeland Security terminates the temporary guidance, the employer must re-inspect the identity and work authorization documents of their remote employee. in your actual physical presence within three business days.

The interim guidance is a temporary deviation from regulations that penalize an employer’s failure to verify its employee’s identity and work authorization documents in the actual physical presence of the employee. That temporary exit is another big victory for businessmen… at least while it lasts. As you may recall, Homeland Security began rolling out several iterations of interim guidance in March 2020. The current interim guidance, discussed hereit was scheduled to expire on April 30, 2022.

It is not clear how long the effects related to the pandemic will last. But the implementation of temporary flexibilities can be nuanced.

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