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By: Dawn M. Lurie, Alexander J. Madrak, and Selene Malench*

Updates at a Glance:

  • Temporary Protected Status (TPS) El Salvador: U.S. Citizenship and Immigration Services (USCIS) has updated its TPS El Salvador website to automatically extend work authorization for Employment Authorization Documents (EADs) with a facial expiration date of March 9, 2025 to July 22, 2026
  • TPS Yemen (Litigation Update):  On May 1, a federal judge temporarily blocked the Department of Homeland Security from terminating TPS for Yemeni beneficiaries, pausing the May 4 termination.  USCIS has updated its TPS Yemen website noting the EADs issued under the TPS designation of Yemen with an original expiration date of March 3, 2023, September 3, 2024, and March 3, 2026 is extended per court order.
  • Form I-9 and E-Verify: E-Verify has issued updated placeholder expiration dates, including Yemen, for several TPS countries affected by litigation stays, which employers should use when completing Forms I-9 and running E-Verify cases.
  • TPS Supreme Court Update: On April 29, the Supreme Court heard oral argument in the challenges to DHS’s terminations of TPS for Syria and Haiti. The Court appeared divided on both the threshold question of whether courts have authority to review TPS terminations and the merits of the beneficiaries’ claims. A decision in favor of the government would allow the terminations to take effect immediately. A ruling is expected before the end of the term.
Continue Reading Another Week, Another Date: Navigating TPS EAD Extensions, Court Stays, and the I-9 Compliance Tightrope

By: Angelo A. Paparelli and David J. Bier

Seyfarth Synopsis: This is the final installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first, second, third, and fourth installments here.  In total, five installments have been published.

President Biden Should Require Immigration Agencies to Apply the Rule of Lenity to All Decisions

The President should issue an executive order requiring all federal immigration agencies to interpret ambiguous statutes and regulations with leniency in favor of the applicant or petitioner.

Immigration law is commonly referred to as “second only to the Internal Revenue Code in complexity.”[i] It is a convoluted morass of vague and poorly defined terms, making life‐​altering decisions hang on the meaning of unfamiliar and ambiguous terms like “moral turpitude” or subjective analyses about an applicant’s “credibility.”[ii] In the removal context, courts have dealt with this phenomenon by “construing any lingering ambiguities in deportation statutes in favor of the alien.”[iii] The Supreme Court has stated, “since the stakes are considerable for the individual, we will not assume that Congress means to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”[iv] This interpretative method is referred to as “strict construction” or “the rule of lenity.”[v]
Continue Reading Require Agencies to Apply the Rule of Lenity to All Actions

By: Angelo A. Paparelli

Seyfarth Synopsis: This is the fourth installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first, second, and third installments here.  A total of five installments will be published.  Please stay tuned for the final update.

Prohibit Regulatory Actions on USCIS Forms

USCIS should amend its regulations to stop automatically incorporating all form instruction changes into its regulations, bypassing notice and public comment procedures.

USCIS requires employers and applicants for immigration benefits to use forms that it creates to collect information.[i] Along with these forms, USCIS publishes detailed instructions that explain to applicants how they must fill out the form and the types of information or evidence that must be provided. USCIS’s regulations currently assert that all form instruction changes are incorporated into the regulations themselves.[ii] The clause allows the agency to evade a slew of federal statutes and presidential directives including the Administrative Procedure Act (APA), the Regulatory Flexibility Act, Executive Orders 12866 and 13563, and OMB Circular A-4.[iii] It allows the agency to effectively change its regulations with only minimal notice under the Paperwork Reduction Act.
Continue Reading Prohibit Regulatory Actions on USCIS Forms

By: Angelo A. Paparelli

Seyfarth Synopsis: This is the third installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first and second installments here.  A total of five installments …
Continue Reading USCIS Should Enforce Its Policy against Broad-Brush Requests for Evidence

By: Angelo A. Paparelli

Seyfarth Synopsis: This is the second installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  Read the first installment here.  A total of five installments will …
Continue Reading Let L-2 and E Spouses Work without an Employment Authorization Document

Seyfarth Synopsis: This is the first installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  A total of five installments will be published on a weekly basis. Please stay tuned for …
Continue Reading Eliminate Bars to Entrepreneurial Self‐Sponsorship

By: Dawn M. Lurie

Seyfarth Synopsis: This announcement extends the flexibilities in rules relating to Form I-9 compliance that was initially granted last year. It also expands the scope of the “in-person” exemption benefit to certain employees, and offers flexibility for companies that are phasing back in employees, as doing so will no longer trigger the in-person requirement for all new hires.  While an improvement in the overall dialogue, the guidance leaves uncertainty regarding the end of I-9 virtual flexibility, and as such, employers should consider moving away from the virtual completion model while continuing to heavily document current practices.

With employers impatiently waiting, the U.S. Immigration and Customs Enforcement (ICE) announced (at 2:00 PM EST on March 31, 2021) another sixty (60) day extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities have been extended until May 31, 2021. The announcement was expected, as a portion of the American workforce is still very much remote, including much of the federal government in Washington, D.C.  However, the delay in the announcement was disappointing, causing unnecessary stress on already fragile H.R. departments.
Continue Reading ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021

By Angelo A. Paparelli and Tieranny L. Cutler

At the urging of President Biden, two members of Congress – Senator Robert Menendez and Representative Linda Sanchez – introduced companion 353-page bills last month in the Senate and the House entitled the “U.S. Citizenship Act of 2021.”

Presented as a comprehensive modernization of our nation’s long outdated immigration laws, this proposed legislation – uniformly lauded by Democrats and opposed by Republicans – features many provisions that U.S. employers may welcome, including, as this White House Fact Sheet details, a path to legal status, employment authorization, and eventually, American citizenship, for some 11 million undocumented noncitizens; relief for Dreamers, persons in Temporary Protected Status, and immigrant farmworkers; and improvements to the legal, employment-based immigration system.
Continue Reading Beware the Employer Risks Nesting in President Biden’s Comprehensive Immigration Reform Bill

The Biden Administration: Enforcement Actions Affecting Labor & Employment
Tuesday, March 23, 2021 – 2:00-3:00 p.m. EST

The Biden Administration has gotten off to a busy start with a wide array of executive actions and policy directives. In this webinar, Seyfarth subject matter experts will discuss what employers can expect…
Continue Reading Register for Seyfarth’s Webinar — The Biden Administration: Enforcement Actions Affecting Labor & Employment

By: Jake Campbell and Gabriel Mozes

Seyfarth Synopsis: Effective January 26, 2021, all international passengers (with minor exceptions) traveling by air must provide a negative COVID-19 viral test to enter the U.S. Alternatively, passengers may provide results proving recovery from COVID-19 with a doctor or physician authorizing international travel.

I. Negative COVID-19 Test Requirement

The U.S. Centers for Disease Control and Prevention (“CDC”) order requires that all internationally arriving U.S. air passengers (ages 2 and above), including U.S. citizens and permanent residents, provide a negative COVID-19 test that was administered within three days of travel.
Continue Reading U.S. Requires Negative COVID-19 Tests for International Air Passengers