Some of you may know that I spend a lot of my time working on immigration-related software products. That’s been the case for many years and the advent of generative artificial intelligence last year has accelerated our product development. Siskind Susser spun off Visalaw.ai in 2021 and it is wearing my Visalaw.ai co-founder hat that we’ll be rolling out an exciting product called Gen over the next few weeks. Gen is a product built on the OpenAI GPT-4 large language model and at it’s heart is an immigration law library that will allow users to ask the library questions like they would ChatGPT and get answers and build documents. Because Gen’s answers are limited to the library and because it provides citations, the well-documented hallucination problem (remember the Avianca Airlines lawyer?) should be much less of an issue. Gen won’t always have an answer and it won’t always get the question right. But it will provide links so a lawyer can see whether the cited document really is on point.
Gen will also allow lawyers to query ChatGPT but without transmitting confidential information back to ChatGPT. The ability to use ChatGPT in a private way will address important ethical concerns with providing ChatGPT with client information. Gen will also allow lawyers to upload their own libraries of information and ask questions via the Gen bot. And, finally, lawyers can upload documents and get detailed summaries as well as on the fly translations (and summaries in English) for foreign language documents uploaded to Gen.
We’re excited to be collaborating with the American Immigration Lawyers Association on this new product and are beginning by including the AILA Practice and Procedures Manual (the “Cookbook”) that I co-author with Ari Sauer. We’re also including the AILA Ethics Compendium which will allow users to ask ethics questions and not just immigration law queries.
In firm news, we welcome our former paralegal Julia Scharff who has completed law school and is joining Siskind Susser as our newest associate. We’ve been fortunate to hire several lawyers over the years who had experience working as a paralegal before starting law school. Attorneys who have such experience have an understanding of the client experience, of how the US immigration system works and of the operations of an immigration law firm that are invaluable. So we’re excited to have Julia joining the team.
As always, we welcome readers to contact our lawyers if they need a consultation to discuss an immigration matter. Please go to www.visalaw.com/consultation if you need an appointment.
Ask Visa Law
Written by Robby Rubin
USCIS just released another update about Form I-9, could you describe some of the new features of the new Form I-9, and when it will be available?
On August 1, 2023, USCIS will be releasing a revised version of the Form I-9, Employment Eligibility Verification. The most notable change to the new Form I-9 is a new checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under a new alternative procedure authorized by DHS, as described below.
In response to the COVID-19 pandemic, on March 20, 2020, DHS announced certain temporary flexibilities which allowed employers to defer the employee’s physical presence requirement, and allow employers to remotely obtain, inspect, and retain copies of their employees’ documents within three business days from an employee’s date of hire.
On July 21, 2023, DHS announced that these temporary flexibilities will expire on July 31, 2023, and that employers who had been relying on these flexibilities had until August 30, 2023, to reach compliance with the pre-COVID in-person physical document inspection requirements. However, in an effort to recognize the realities of post-COVID labor dynamics, DHS also announced that it will be implementing and authorizing a new alternative procedure which allows certain employers to continue remotely examining and inspecting an employee’s identity and employment authorization documents.
Only employers enrolled in E-Verify and in good standing will have the option to participate in this alternative procedure. Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf) who wishes to use the alternative procedure must:
- Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
- Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;
- Retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back if the documentation is two-sided); and
- In the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.
The employer must create an E-Verify case if the employee is a new hire, whether or not the new alternative procedure is used. E-verify participants will not need to create a case in E-Verify when Form I-9 reverification is completed for an existing employee.
Qualified employers who had been remotely examining documentation under the COVID-19 flexibilities are permitted to use the alternative procedure to reach compliance with the “physically examine” requirement. A qualified employer is:
- An employer that was enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 or reverification while using the COVID-19 flexibilities;
- Created an E-Verify case for that employee (except for reverification); and
- Performed the remote inspection between March 20, 2020, and July 31, 2023.
Employers must reach compliance with their “physical examination” requirement by August 30, 2023, regardless of if they choose to use the alternative procedure or to physically examine the documents in the employee’s presence. Employers that use the alternative procedure instead of physical examination must follow steps 1-5 listed above and write “alternative procedure” with the date of examination (the date the employer performed a live video interaction with the employee) to the Section 2 Additional Information field or in Section 3, as appropriate.
Employers should begin using the new Form I-9 (Edition: 08/01/2023) beginning August 1, 2023. However, DHS has allowed a grace period to continue using the prior version of Form I-9 (Edition: 10/21/2019) until October 31, 2023. Beginning November 1, 2023, employers must use the new Form I-9 (Edition: 08/01/2023). Additionally, employers using the 10/21/2019 version of the Form I-9 who wish to use the alternative procedure must write “alternative procedure” in the Additional Information field in Section 2. The 08/01/2023 version of the Form I-9 will have a checkbox in Section 2, and in the section corresponding to reverification (which will be Supplement B in the new form) where employers can indicate their use of the alternative procedure.
Additional revisions to the Form I-9:
- Reduces Sections 1 and 2 to a single-sided sheet;
- Is designed to be a fillable form on tablets and mobile devices;
- Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
- Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
- Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation; and
- Reduces Form instructions from 15 pages to 8 pages.
Please contact your Siskind Susser attorney if you have any questions regarding this or any other issues relating to the completion of your Employment Eligibility Verification requirements.
In the News From ABIL
The three-day filing window to submit an H-2B Application for Temporary Employment Certification requesting a work start date of October 1, 2023, will open on July 3, 2023, and close on July 5, 2023.
OFLC soon will provide information about Occupational Employment and Statistics Survey-based AEWRs for (1) the field and livestock workers (combined) category in Alaska, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands, and (2) job opportunities outside of that category throughout the United States and its territories.
The internet-based project “will permit employees to create their own secure account, resolve E-Verify tentative non-confirmations (also referred to as ‘‘mismatches’’) in advance and directly with the government, instead of through their employer, and then receive an electronic verification response that they can use and update with subsequent employers.”
OFLC has approved the 2023 Commonwealth of Northern Mariana Islands (CNMI) Prevailing Wage Study survey for 417 occupations and will issue updated CW-1 prevailing wages using these data from July 1, 2023, through June 30, 2024. The updated wage table includes prevailing wage data for 848 occupations.
Among other topics, the CIS Ombudsman reviewed requests for evidence (RFEs) in L-1 intracompany transferee petitions, specifically looking at RFEs issued for extension petitions for the L-1A and L-1B nonimmigrant categories.
The Chicago Immigration Court’s main location at 525 West Van Buren Street will close for relocation on July 13, 2023. During the closure, scheduled detained and non-detained hearings will take place at the Chicago Immigration Court’s satellite location.
Employers will have an additional 30 days to comply with Form I-9 requirements after COVID-19 flexibilities sunset on July 31, 2023.
Following the Department of Homeland Security’s (DHS) recent announcement reinstating and extending for 18 months the temporary protected status designations for El Salvador, Honduras, Nepal, and Nicaragua, DHS has provided eligibility criteria, timelines, and procedures.
The U.S. Supreme Court ruled 8-1 that Texas and Louisiana lacked standing to block Biden administration immigration enforcement guidelines that prioritize national security, public safety, and border security threats over focusing on deporting anyone in the United States without authorization.
The Department of Homeland Security has rescinded the Trump administration’s terminations of the temporary protected status (TPS) designations for El Salvador, Honduras, Nepal, and Nicaragua, and extended TPS for these countries for 18 months.
U.S. Citizenship and Immigration Services has released policy guidance on the eligibility criteria for initial and renewal applications for an employment authorization document in compelling circumstances.
U.S. Citizenship and Immigration Services (USCIS) is expanding premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, and seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. Online filing of Form I-907, Request for Premium Processing Service, will also be available for these applicants, USCIS said. This phase of premium processing service is only available for change-of-status requests.
Effective July 1, 2023, the Department of Labor’s Employment and Training Administration has updated the adverse effect wage rates (AEWRs) under the H-2A temporary agricultural employment program that apply to a limited set of H-2A job opportunities for which the AEWR is determined using the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey.
U.S. Citizenship and Immigration Services (USCIS) has updated policy guidance regarding the nonimmigrant exchange visitor (J) visa classification, including USCIS’s role in the adjudication of waivers of the two-year foreign residence requirement and change-of-status requests.
The new system gives noncitizens the option to update their information online instead of doing so by phone or in person.
Retrogressions have been necessary for the employment-based third preference (EB-3) category for India, Mexico, Philippines, and Rest of World.
The Department of Homeland Security has released updated guidance on parole periods and employment authorization for certain Afghan and Ukrainian parolees.
U.S. Citizenship and Immigration Services announced that certain individuals requesting parole based on urgent humanitarian reasons or significant public benefit can file Form I-131, Application for Travel Document, online.
U.S. Citizenship and Immigration Services has updated the Lockbox Filing Location Updates page on its website to include service center filing location updates.
At a hearing on June 7, 2023, of the House Subcommittee on Oversight and Accountability, Rena Bitter, Assistant Secretary of State for the Bureau of Consular Affairs, said the Bureau and the Department of State have taken “extraordinary measures” to meet current U.S. passport and visa demand.
This article discusses anticipated changes to the processing of montaj-AMS visas for Türkiye.
The Department of State clarified the Final Action Date retrogression applicable to employment-based third preference (EB-3) visa applicants chargeable to India and explained the reason for prorating India EB-3 visas.
U.S. Citizenship and Immigration Services (USCIS) has launched a new self-service tool allowing rescheduling of most biometric services appointments before the date of the appointment. USCIS also clarified its guidance on policies and procedures related to “good cause” in this context.
While awaiting an immigrant visa, eligible individuals can request work authorization that can be maintained throughout the parole period. When the immigrant visa becomes available, the individual may apply to become a lawful permanent resident.
The Department of Homeland Security’s Carrier Liaison Program has incorporated changes related to the designation of Cuba as a State Sponsor of Terrorism, making individuals who have been present in Cuba on or after that date ineligible for travel under the Visa Waiver Program.
The Department of Homeland Security (DHS) has amended the DHS STEM Designated Degree Program List by adding eight qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each.
The Department of State’s Visa Bulletin for August includes information on establishment of a Worldwide employment-based first preference (EB-1) final action date; retrogression in the employment-based first preference (EB-1) category for India; and retrogression in the employment-based third preference (EB-3) category for Rest of World countries, Mexico, and Philippines.
U.S. Citizenship and Immigration Services is expanding myProgress (formerly known as personalized processing times) to Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document.
The Department of Labor’s Office of Foreign Labor Certification has published the Assignment Groups for 2,157 H-2B applications covering 40,947 worker positions with a work start date of October 1, 2023.
The Office of Foreign Labor Certification has issued a set of Frequently Asked Questions (FAQs) regarding the final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States.”
Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security related to temporary COVID-19 flexibilities.
The new approach involves grouping petitions with filing dates on or before November 30, 2019, by new commercial enterprise within the queue of petitions where the project has been reviewed and there is a visa available or soon available.
U.S. Citizenship and Immigration Services has incorporated into its Policy Manual information on the categories of adjustment of status applicants to whom the public charge ground of inadmissibility applies.
The Department of Homeland Security, in consultation with the Department of State, has reduced from two years to one year the Electronic System for Travel Authorization validity period for travel by citizens and nationals of Brunei Darussalam under the Visa Waiver Program to the United States.
U.S. Citizenship and Immigration Services will soon select, using a random process, additional registrations from previously submitted electronic registrations for the fiscal year 2024 H-1B cap.
U.S. National Security Advisor Jake Sullivan announced additional steps the United States is taking “to expand access to safe, orderly, legal migration pathways” following meetings in Mexico between the President of Mexico and a U.S. delegation.
The Department of State proposed a rule to allow private attorneys, interpreters, and other third parties to attend certain appointments at passport agencies and centers and at U.S. embassies and consulates abroad to assist the person requesting services.
The Department of Labor and the Interagency Task Force to Combat Child Labor Exploitation announced recent actions to hold companies accountable for violating federal child labor laws.