As we enter the new year, it is helpful to look back on recent news in the world of immigration compliance:
Employment of Ukrainian or Afghan Parolees – The USCIS announced that as of November 21, 2022, Ukrainians paroled into the United States under Uniting for Ukraine programs—Operation Allies Welcome (OAW) and Operation Enduring Welcome (OEW)—are employment-authorized incident to status. This means that if one is paroled into the United States under these programs, an unexpired Form I-94, Arrival/Departure Record, with a class of admission of “UHP” is an acceptable List A document that shows one's identity and work authorization for Form I-9 purposes. For Afghan parolees, their unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR” if their parole has not been terminated. The Form I-94 satisfies the Form I-9 requirement for 90 days from the date of hire. After the 90-day period, parolees must present an unexpired Employment Authorization Document or unrestricted Social Security card and acceptable List B identity document from the Lists of Acceptable Documents.
Lists of Acceptable Documents (LOAD) – There are now 41 additional document combinations that can be presented to complete Form 1-9 that are not listed on the LOAD. The documents show 34 of the 41 documents will continue to exist as acceptable documents even after COVID-related flexibilities expire and USCIS backlogs are addressed. The USCIS has stated it agrees there needs to be a single location where all the LOAD documents are maintained but to date, it has been unable to determine how that can be accomplished.
Discrimination Due to Technology – Immigrant & Employee Rights (IER) Section of the Department of Justice continues to be concerned about the use of electronic systems to recruit, screen, and hire applicants. IER has said it is evaluating electronic software systems, based on complaints of discriminatory hiring practices, and their effect in recruiting, screening, and/or hiring applicants. IER has identified several software platforms with dropdown menus that resulted in employers' inadvertently posting job advertisements with unlawful citizenship status restrictions. IER advises it will hold the employer liable for these violations, but not necessarily the software company.
Permanent Remote, Virtual I-9 Verification – USCIS is moving forward on considering alternatives to the physical document examination process associated with the completion of Form I-9, to allow for the remote, virtual inspection of documents presented for employment verification purposes. In the summer of 2022, the Department of Homeland Security (DHS) proposed Optional Alternatives to the Physical Document Examination Associated with Form I-9. It was essentially a proposal to make a proposed rule. USCIS has stated it could publish a new Notice of Proposed Rulemaking (NPRM) as soon as one year from now based upon the comments to the proposal. After the second NPRM is published, DHS will allow another comment period from the public. Then, the DHS will review those comments and issue a final rule.
Employers with questions about the above developments should contact their immigration counsel.
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