Parsing the Revisions to the I-9 Handbook for Employers

On January 22, 2017, two days after President Trump was inaugurated but with no connection to that event, USCIS published a new Form I-9 for verification of employment authorization required for every new hire since 1986.  Last week USCIS published a revision to its Handbook for Employers for completing I-9, Form M-274.  The 69-page revision not only covers implications of the new option to complete the I-9 by the new “smart” electronically fillable form.  It also describes and depicts some new types of authorization documents, instructs how to correct Form I-9 errors (pages 29-30, 47), adds some details in discussing discrimination and other issues, and adds references to some web tools (especially at www.uscis.gov/i-9-central), among other changes.

We have prepared an annotation of the revised Handbook highlighting in yellow the most meaningful new language but not highlighting mere re-wording or reorganization of prior discussion.  We also similarly highlighted the prior version from 2013, showing some of the most noteworthy deletions from the new Handbook, but we note that most deleted Q&As have been folded into the main text of the revision.
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Overview and Q&A for President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States”

On January 27, 2017, President Trump issued Executive Order 13769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” We’ll call this one the “Screening EO.” This is one of at least three different Executive Orders issued so far concerning immigration, the other two having to do with more general border security and interior enforcement issues.

The Screening EO directs the various U.S. departments involved in screening foreign visitors and immigrants to develop “uniform” screening practices and to determine what information is needed from other countries to facilitate such screening.
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DHS Final International Entrepreneur Rule to Take Effect July 16, 2017

On January 17, 2017, the Department of Homeland Security (DHS) published its final rule implementing the discretionary parole for entrepreneurs program, which was proposed this past August. See our blog post regarding the proposed rule here. The final rule, effective July 16, 2017, adds regulations allowing DHS to grant parole on a case-by-case basis to entrepreneurs of start-up entities for up to 30 months with possible extension of an additional 30 months for a five-year maximum. Entrepreneurs must show substantial and demonstrated potential for rapid business growth, job creation and significant public benefit to the United States by, among other things, the receipt of (1) significant capital investment from U.S. investors with established records of successful investments; or (2) significant awards or grants from certain federal, state or local governmental entities.
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Changes to National Interest Waiver Standard

The USCIS Administrative Appeals Office (AAO) issued a precedent decision overruling the longstanding standard for EB-2 National Interest Waiver green card cases and creating a more realistic three-part test to demonstrate “national interest.”

USCIS has discretion to grant a National Interest Waiver (NIW) to professionals with an advanced degree or individuals of exceptional ability who are eligible for the second employment-based preference category (EB-2). The NIW allows individuals in the EB-2 category to avoid the labor certification process if they can show their immigration would be in the “national interest.” The term “national interest” remained undefined until the now overruled AAO decision created a confusing standard resulting in inconsistent adjudication.
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New Rule On Unfair Immigration-Related Employment Practices Effective January 18, 2017

On December 19, 2016, the Department of Justice (DOJ) issued a final rule that revises the DOJ’s regulations implementing certain provisions of the Immigration and Nationality Act (INA) related to to unfair immigration related employment practices. The rule introduces no major changes for employers, but it should be a reminder to review Form I-9 employment authorization policies. The final rule is intended to conform DOJ regulations with existing statutory provisions and to update regulations to ensure effective investigations of unfair immigration-related employment practices. Continue reading

USCIS New Rule Implements Old Laws with a Few Twists

USCIS has published a final rule, to take effect January 17, 2017, ensconcing in regulations most of the policies it had long ago worked out in memorandums implementing provisions of 1998 and 2001 laws intended to bridge some gaps in the employment immigration law processes particularly relating to H-1B workers. The regulation also turns a few new twists that employers must be aware of.
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New I-9 Form: Very Different, Many Quirks, Required for Use by January 22, 2017

USCIS finally has published the new Form I-9 that has been in the works for a few years and that all U.S. employers will be required to use in onboarding new hires as of January 22, 2017, although they can choose to use it for new hires before then. Employers should start now to prepare themselves for use of this new version, which involves making several practical choices among confusing options and with unpredictable implications.
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USCIS: New Form I-9 Version Mandatory in January 2017

On September 12, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that the Office of Management and Budget approved a revised Form I-9, Employment Eligibility Verification. USCIS must publish a revised form version by November 22, 2016. Employers may continue using the current version of the Form I-9 with a revision date of 03/08/2013 N until January 21, 2017, when all prior versions of the form will be invalid.
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