Updates on U.S. Policies Impacting Foreign Nationals and Employers

December 3, 2021 | Insights

This article, originally published on November 22, 2021, has been revised. Please note changes to the international travel policy for air passengers re-entering the United States.

By Sang Shin

The Biden administration has recently made some important immigration policy changes which will impact both foreign national employees and their employers.

Public Input Sought for Form I-9 Audits

Established as part of the Immigration Reform and Control Act of 1986, Form I-9, Employment Eligibility Verification, is used to verify an employee’s identity and employment eligibility. Employers are required to maintain all current employees’ original Forms I-9 in the event the employer is served a notice of inspection.

Prior to the COVID-19 pandemic, employers were required to physically inspect employees’ identity and employment eligibility documents—unless employers and workplaces operated exclusively remotely. After COVID-19 was declared a national emergency, the Department of Homeland Security (DHS) permitted employers to examine documents remotely if the employees are not physically able to report to work. On August 31, 2021, DHS announced the Form I-9 flexibility policy would be extended to December 31, 2021.

Following the announcement, DHS published a 60-day request for public input in the Federal Register to seek public comment, particularly from employers, regarding their experiences with pandemic-related document examination flexibilities and considerations for future remote document examination procedures. Comments can be submitted until December 27, 2021.

For additional information about Form I-9, visit USCIS’ I-9 Central or ICE’s Form I-9 Inspection webpage.

Worksite Enforcement

DHS Secretary Alexander Mayorkas recently issued a memorandum announcing that the Biden administration would end the Trump administration’s implementation of worksite raids aimed at catching unauthorized workers. Instead, the Biden administration will look to punish “exploitative employers” hiring unauthorized workers and who fail to comply with U.S. labor and immigration laws.

With the issuance of the memorandum, various immigration agencies will develop and update policies to enforce labor and employment standards, likely leading to more audits of work authorization compliance. Employers should seek to proactively audit their workforce to ensure compliance.

Extensions for Spousal EADs Announced

On November 12, 2021, U.S. Citizen and Immigration Services (USCIS) announced an automatic extension of employment authorization document (EAD) validity will be granted to certain H-4, E, and L dependent spouses who have filed for an extension and whose Form I-94 or E, H-4, or L status has not expired. The automatic extension will continue until the earlier of:

  • the end date on Form I-94 showing valid status;
  • the approval or denial of the EAD renewal application; or
  • 180 days from the expiration date of the previous EAD.

In addition, USCIS will modify Forms I-94 so that E and L dependent spouses are considered as employment authorized incident to their valid E or L nonimmigrant status. As a result, they are no longer required to file Form I-765 to request employment authorization. However, they may continue filing Form I-765 if they choose to receive an EAD.

For more information, see the USCIS policy alert.

Vaccination Requirements for International Travel

In addition to the aforementioned policy changes, the Biden administration on Thursday, December 2,  tightened entry requirements for air travelers to the United States following the global spread of the Omicron variant. Effective December 6, 2021, all individuals re-entering the U.S. from international travel must show a negative COVID-19 test taken within one day of traveling back. More information about this travel policy can be found at “US Tightens Restrictions for International Travelers as Omicron Spreads.”

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For additional assistance related to recent policy changes, please contact an attorney in Jackson Walker’s Immigration practice.