US extends physical presence requirements for Employment Eligibility Verification for Caribbean immigrants

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 The United States Immigration and Customs Enforcement (ICE) agency has further extended the physical presence requirements associated with Employment Eligibility Verification for the Caribbean and other immigrants due to the COVID-19 pandemic. 

ICE said that the US Department of Homeland Security (DHS), which oversees ICE, had extended this policy until December 31, 2020.

“Due to the continued precautions related to COVID-19, the Department of Homeland Security will extend this policy until January 31, 2021,” said ICE about the latest extension.

On March 19, due to precautions implemented by employers and employees associated with COVID-19, DHS said it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the US Immigration and Nationality Act. 

“This policy only applies to employers and workplaces that are operating remotely,” said ICE in a statement. “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

“In the future, DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed,” added ICE, alluding to the COVID-19 pandemic. 

The immigration agency said that employers with employees taking physical proximity precautions, due to COVID-19, will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. 

However, ICE said employers must inspect the Section 2 documents remotely – such as over video link, fax, or email – and obtain, inspect and retain copies of the documents within three business days for purposes of completing Section 2. 

ICE said employers should also enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field once physical inspection occurs after normal operations resume. 

“Once the documents have been physically inspected, the employer should add ‘documents physically examined’ with the date of inspection to the Section 2 additional information field on the Form I-9, or section 3 as appropriate,” ICE said. 

Once normal operations resume, ICE warns that all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

In March, New York Attorney General Letitia James had called on US Attorney General William Barr, as well as members of New York’s immigration courts, to take action and stop the further spread of the coronavirus disease (COVID-19) by immediately halting in-person immigration hearings for the Caribbean and other nationals.

James wanted Barr and the immigration courts to move instead to telephonic hearings and electronic filings.

In a letter to Barr and immigration judges and court administrators across New York State, James cites the need for protecting practitioners and staff at the state’s immigration courts after members of several organizations that provide free legal representation to indigent non-citizens, such as Caribbean nationals, at these courts, have reported COVID-19 symptoms or have been exposed to an individual with COVID-19.

“During this national public health emergency, it is incumbent upon us all to mitigate the spread of this novel virus,” said James in her letter. “Court administrations at the state and federal level have instituted protocols that allow court business to continue but also safeguard the public health, including closing non-essential parts of the court and adjourning new trials. A similar approach is appropriate and warranted in immigration courts.”

James said numerous organizations — including the New York Immigrant Family Unity Project (NYIFUP), Prisoners’ Legal Services of New York, and the ECBA (Erie County Bar Association) Volunteer Lawyers Project — have reported the risks posed to all in the community by continuing to hold in-person court hearings.

While the Executive Office for Immigration Review at the US. Department of Justice has taken some steps to reduce hearings and court traffic for non-detained cases; James said current policies still require extensive in-person interaction in cases involving detained individuals, “further threatening the health and safety of all court personnel, legal practitioners and staff, defendants and witnesses who must show up in person.”

In her letter, James asked for the courts to — at a minimum — adopt the proposals put forth by NYIFUP providers at all immigration courts in New York State, including adjourning master calendar hearings, presumptively permitting telephonic appearances for bond and individual hearings, and presumptively permitting extensions and continuance requests.

James also requested that the courts institute a means for practitioners to submit motions electronically, instead of in-person at the court or through the postal mail, “which cause delays and unnecessarily jeopardizes the health of those involved.”

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