As the coronavirus pandemic continues to spread across the United States, business owners and HR professionals are dealing with multiple workforce issues related to COVID-19. Below guidance and resources seek to shed some light on the Paycheck Protection Program, addresses how to complete the Form I-9 if your new hire is “remote” due to COVID-19 precautions, and  how to address the situation of an employee testing positive for coronavirus.

  • My colleague Tenley Carp wrote a alert called “What Every Small Business Needs to Know About the CARES Act,” focusing on the Paycheck Protection Program and loans available through private lenders and funded by the government. The loan forgiveness program applies to companies employing 500 or less employees and the money can be used for payroll, rent, utilities. Click here to read her alert.
  • Speaking of the CARES Act and the Paycheck Protection Program, are you looking for the application for borrowersClick here for the application and click here to learn more about the program.  The Paycheck Protection Program provides small businesses with funds to pay up to 8 weeks of payroll costs including benefits. Funds can also be used to pay interest on mortgages, rent and utilities.
  • Are you hiring and wondering how to complete the Form I-9 when your office or worksite is closed due to a state or local order related to COVID-19 and your workforce is working remotely from home.  The government still expects businesses to comply with the Form I-9 and E-Verify requirements (if you are an E-Verify company) and these must be completed within three business days of hire.  But, how do you comply with the requirement to visually inspect the document(s) presented by the individual for Section 2 of the Form I-9 when your company is taking COVID-19 precautions and HR and the new hire are in different locations?  The Department of Homeland Security is offering a reprieve to the legal requirement that an employer visually inspect the documents (i.e., the “in-person” requirement). Click here to read an alert I posted on this topic.
  • Finally, my colleagues Ashley Kelly, Henry Perlowski and Ed Cadagin wrote this alert on how a business can respond in this scenario–“Mike from accounting just texted me. He’s not coming in today because he’s tested positive for coronavirus. What do we do?How would your company respond in such a situation?  Click here for guidance.

As the coronavirus (COVID-19) changes employers’ on-boarding processes, here are the latest developments to ensure your company is complying with both the employment eligibility verification form (the “Form I-9”) requirements and E-Verify during remote on-boarding.  Below guidance is provided by the Department of Homeland Security (DHS), specifically U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE).

  • The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19.  The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.  However–in light of COVID-19–the government is suspending the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example. However, employers will need to view the document(s) at a later date and note the physical inspection of the document(s) on the Form I-9.  This is a limited exception to the general rule. IMPORTANT — employers are still required to complete the Form I-9 within three business days of hire.  The “remote verification” exception is only intended to accommodate the realities of remote on-boarding in the current COVID-19 world.
    • Click here for details as to how your company must comply to benefit from this guidance, both now and in the future (when normal operations resume).
  • An employer must still create a case in E-Verify within three business days from the date of hire, and employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. However, if case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
  • E-Verify is extending the timeframe to take action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve DHS TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.
  • All local Social Security offices are closed to the public for in-person services. Meaning, employees will not be able to apply for/receive a Social Security Number (SSN) during this time period.  If you are an E-Verify employer, this will mean the employee cannot provide their SSN in section 1 and you will need to suspend creation of a case in E-Verify until such time as you have the employee’s SSN.
  • ICE announced that, effective March 19, 2020, any employer who was served a Notice of Inspection (NOI) during the month of March 2020 and who has not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
    • Many employers found that during March 2020 ICE engaged in enforcement operations, issuing NOIs to employers nationwide.

I will continue to monitor I-9 and E-Verify guidance issued by DHS and related to COVID-19.  It will be posted to this blog.  If you have any questions, please contact me at montserrat.miller@agg.com.  I hope you stay healthy and symptom-free.

Due to the coronavirus, U.S. Citizenship and Immigration Services (USCIS) offices are closed to the public.

USCIS has suspended routine in-person services until at least April 1, 2020 to help slow the spread of Coronavirus Disease 2019 (COVID-19). USCIS staff will continue to perform duties that do not involve contact with the public. This means that the service centers will continue to process nonimmigrant petitions such as H1B and L petitions.  It also means that the H1B random lottery will take place later this month.  However, for those individuals with an interview appointment notice, a biometrics appointment, or a naturalization ceremony, those are cancelled for the time being. To read more, click here.

USCIS will send notices with instructions to applicants and petitioners with scheduled interview appointments or naturalization ceremonies impacted by this closure. They will automatically be rescheduled once normal operations resume. Individuals who had InfoPass appointments with a Field Office must reschedule through the USCIS Contact Center (click here).

Last night, March 11, 2020, President Trump announced a travel ban impacting Europeans traveling to the United States. The ban applies to those “physically present” within the Schengen Area during the 14-day period preceding their entry into the United States.  The President, in his speech last night, said the ban would last 30 days. But the proclamation does not say that, it says only that it shall remain in effect until terminated by the President.

As a general rule the travel ban announced last night by President Trump suspends travel for nonimmigrants (e.g., Es, Hs, Ls) for those “physically present” in countries in the Schengen Area (see country list below). The ban does not apply to lawful permanent residents, immediate family members of U.S. citizens and certain other individuals.

The President’s proclamation banning travel to the United States goes into effect at midnight this Friday (March 13, 2020)

Here is a link to the Department of Homeland Security announcement (click hereand here is a link to the Presidential Proclamation (click here).

Schengen Area: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

 

Now that the United Kingdom is (finally) exiting the European Union (EU) one question U.S. based companies have is what happens to transfers of personal data from the United Kingdom (UK) to the United States under the EU’s General Data Protection Regulation (GDPR). The International Trade Administration’s (ITA) Privacy Shield Team recently put out guidance to address this question.

Good news is that Privacy Shield participants may rely on the EU-U.S. Privacy Shield Framework to receive personal data from the UK even though they are withdrawing from the EU. That is because EU law will continue to apply during the transition period from January 31, 2020 to December 31, 2020.

After the transition period–starting in 2021–a Privacy Shield organization must update its public commitment to comply with Privacy Shield to include the UK.  Meaning, organizations must update their public facing privacy policy on their website to include certain language covering the UK.  Model language is provided by the ITA (click here). And of course, in order to receive personal data from either the EU or the UK, an organization must be Privacy Shield certified.

A new version of the employment eligibility verification form, known as the Form I-9, is about to be published.  Once it is, employers must use the new version (with a version date of 10/21/2019) and phase out use of the prior version within 90 days.  Use of the revised form by all employers completing the Form I-9 is mandatory after the 90 day window.

All employers must complete a Form I-9 for new hires within three days of hire. After completion, employers must maintain the Form I-9 for the duration of the employee’s employment with the company.  Upon termination, the forms must be retained for three years after hire or one year after termination, whichever is later.  Click here to read more on retention of the Form I-9 post termination.  Employers must use the current version of the Form I-9 as instructed by U.S. Citizenship and Immigration Services.

The new Form I-9 will have a revision date of 10/21/2019 in the bottom left hand corner of the form.  Employers will be allowed to use the prior version for 90 days after publication in the Federal Register.  There are no substantive changes to the paper Form I-9, however there are two country additions to the “fillable” Form I-9 that USCIS offers employers on its website. There are changes to the Form I-9 instructions, including clarifications to who an authorized representative is and updates to the process to request the paper Form I-9.

To view the Federal Register notice click here or click here.

 

On January 1, 2020, the California Consumer Privacy Act (CCPA or the “Act”) became effective. At a high level, the CCPA gives California residents, with certain exceptions, new rights to know what types of personal information a business collects about them, information about the business’s data collection practices, the ability to request access to and deletion of personal information the business maintains about them, and, if applicable, the ability to request that a business not sell personal information about the individual. The law also affects service providers to businesses and certain third parties that receive personal information from a business. While implementing regulations proposed by the California Attorney General have not yet been finalized, enforcement nevertheless is scheduled to begin July 1, 2020 and organizations subject to the law should be working on their compliance program (if that work has not already been completed).

To read the full alert my colleague Kevin Coy and I wrote, click here.

Happy Hanukkah, Merry Christmas, Happy Kwanza!  Whatever you celebrate I hope you are enjoying the holiday season.

This week’s edition of the Compliance News Flash features information about:

  • The California Consumer Privacy Act.
  • Increase in H1B denials and requests for more information by USCIS.
  • Standard contractual clauses and data transfers.
  • Discrimination claims related to the Form I-9.

Click here to read it.

U.S. Citizenship and Immigration Services (USCIS) announced it will increase the premium processing fee for certain employment-based petitions, beginning on December 2, 2019.

Premium processing is an optional service provided to petitioners filing Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Worker that allows petitioners to request 15-day processing for an extra fee. The current fee is $1,410 and the increase will put the new fee at $1,440. USCIS last increased the premium processing fee in 2018 and says the increase is intended to reflect inflation. Click here to read the USCIS announcement and click here to read the Final Rule in the Federal Register.

Please join us on October 30, 2019 at 2:00 pm EST for a free webinar hosted by TazWorks and presented by Montserrat Miller and Erin Doyle from Arnall Golden Gregory LLP.  Ms. Miller and Ms. Doyle will cover the following subjects:

  • Differences between employment screening and tenant screening under the Fair Credit Reporting Act (FCRA).
  • The treatment of independent contractors and volunteers under the FCRA.
  • Are government agencies consumer reporting agencies under the FCRA (focusing on the recent decision holding that the FMCSA is not a consumer reporting agency).
  • Restrictions around putting names, aliases and addresses procured through SSN Trace searches on consumer reports.
  • An overview of the CCPA and the interplay between the FCRA and the CCPA – relevant amendments include those related to employee information, the FCRA exemption, data breaches, and the data broker registry requirement.

Background screening companies and employers both have obligations under the FCRA when providing and requesting background check reports for employment screening purposes.  The same is true of background screening companies and property management companies and landlords when requesting background screening reports for tenancy.  The FCRA isn’t a strict liability statute but it does require attention to details given that individuals can bring both class action as well as individual claims under the FCRA for technical violations of the law.  And as if the FCRA isn’t enough, now organizations have to layer in the CCPA and prepare for January 1, 2020, the effective date of the CCPA.  While in theory the CCPA applies to California residents, in practice most background screeners, employers, and property management companies have national operations that touch California.  Some have compared the CCPA to the European Union’s General Data Protection Regulation (GDPR) and other states are considering their own data privacy legislation similar to CCPA.  Therefore, focusing on the CCPA and understanding one’s compliance obligations is important.

Click here to register.