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Employers are required to have employees complete Form I-9 when onboarding an employee. This is the federal government’s mechanism for ensuring that employers only hire individuals with employment authorization. The Form I-9 has been around since 1986. As of August 1, 2023, the US Citizenship and Immigration Services (USCIS) issued a new Form I-9. Employers may use the current version of the Form I-9 (edition dated 10/19/2019) until October 31, 2023. Thereafter, employers must use the 8/1/2023 edition.

One welcome change to the Form I-9 process is an option for employers to verify employee documents remotely. Other than special accommodations made during the COVID-19 pandemic, employers were required to verify all employee documentation in person. With the announcement of the new Form I-9, the government is allowing employers who have signed up for the E-Verify program to verify documents remotely.

For complete details on how to complete the Form I-9, please check the latest version of the USCIS M-274 Handbook for Employers. For the latest Form I-9 news, please check www.uscis.gov/i-9 central/form-i-9-related-news. The above information has been provided for educational purposes only; please contact your Clark Lau LLC attorney for how these details apply to your circumstances.

Normally, when an employer hires an individual, the employer must verify that the individual has proper documentation to show that the individual has employment authorization to work for the employer. This is done through the employer’s completion of the Form I-9 and the employee’s demonstration of the documentation in person. When the COVID-19 pandemic arose in March 2020, employers had the option to review such documentation remotely. As employees return to the workplace, U.S. Immigration Customs and Enforcement (ICE) announced that employers must conduct in-person verification of the documents that were previously reviewed remotely. As we shared in an earlier post, employers have until August 30, 2023 to comply with this in-person document verification.

More recently, ICE announced an alternative option for employers who reviewed documentation remotely. For those employers who meet the criteria below, instead of doing an in-person document verification, they have the option of doing yet another remote verification. Only those employers who meet all four of the criteria below have this alternative option. Such employers must

• Have performed remote examination of an employee’s documents between March 20, 2020, and July 31, 2023;
• Have been enrolled in E-Verify at the time they completed the Form I-9 for that employee;
• Have created a case in E-Verify for that employee (except for reverification); and
• Be currently enrolled in and continue to participate in E-Verify.

Per the USCIS guidance “[e]ven if the employer performed steps similar to the alternative procedure at the time of hire, the employer must still complete the steps of the new alternative procedure to finalize the Form I-9.” If an Employer chooses to use the new alternative procedure, examination of the employee’s Form I-9 documents must be done through live video.

In short, employers who availed themselves of the COVID-19 flexibilities that allowed them to verify employee documents remotely, must now either do so in-person OR via the alternative option, but only if they meet all four of the criteria above; all by August 30, 2023. 

The above has been provided for informational purposes only.

The Department of Homeland Security’s (“DHS”) COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, will end on July 31, 2023. Prior to the onset of the COVID pandemic, employers were required to complete the Form I-9 and do in-person verification of an individual’s employment authorization documents. In response to COVID-19 safety measures in 2020, DHS provided some flexibilities as an alternative to an in-person inspection.

With the end of the temporary flexibilities, employers will need to complete in-person physical document inspections by August 30, 2023 for employees whose documents were inspected remotely during the temporary flexibilities. Authorized representatives can be designated to complete Forms I-9 and conduct the required in-person physical document inspection on behalf of employers. Lack of Form I-9 related compliance or completion of the physical inspection may result in significant fines.

In August 2022, DHS proposed a rule that would allow for permanent alternative procedures for remote document review in connection with the Form I-9. DHS anticipates publishing a Final Rule in the Federal Register that will implement this proposal. Nonetheless, Employers should be prepared to act now and complete in-person physical document inspections for employees whose documents were inspected remotely prior to August 30, 2023, as any permanent provision is not likely to happen before the temporary flexibilities end on July 31, 2023.

This information was provided for educational purposes only. If you have any questions, please feel free to contact our offices.

When is the H-1B lottery for 2023?

USCIS announced that the initial registration period for the upcoming H-1B lottery will run from March 1, 2023 (noon) until March 17, 2023 (noon). Employers and attorneys will be able to register individuals needing an H-1B visa at any time during this period. Preference will not be given to those who register earlier. If by noon March 17, 2023 there are more registrants than available H-1B numbers, USCIS will conduct a random lottery afterwards. We anticipate that the results of the lottery will announced towards the end of March.

Please note that should a lottery be conducted, 20,000 numbers will be allocated to registrants with US Master’s degrees or higher first, and then another lottery will be conducted for the remaining 65,000 numbers.

Who should consider registering for the H-1B lottery?

The US immigration system requires individuals to have permission, or a visa, to remain in the US. Such visas are issued for very specific purposes and specific durations. Visas exist for business visits, tourism, educational purposes, and for work. The H-1B visa is one type of work visa. It is available when the following criteria exist:

• US employer (no self-sponsorship);
• Offered position is a “specialty occupation” – that is, the duties are such that one cannot perform the duties without a degree in a specific field of study (plainly said, jobs that can be performed by an individual with any (or no) educational background do not qualify for the H-1B);
• Employer is paying the required wage (either at or above the higher of the prevailing wage or the wage paid to similarly employed US workers); and
• Individual meets the degree requirement of the position

There is no labor market test for H-1Bs however.

Unless the petitioning employer is a college, university, non-profit research organization, or government research organization, then the individual must go through the H-1B lottery at least once. Candidates who are recent graduates and who may be in the US in other work-authorized visas that have limited duration of time are the usual candidates for the H-1B visas. Given that the lottery happens only once a year, it is very important not to miss this opportunity. While the H-1B visa is the most common for degreed professionals, there are other options as well. Feel free to contact Clark Lau LLC to see whether the H-1B visa is appropriate in your situation.

The above has been provided for educational purposes only.

We are happy to announce the promotion of Mi-Rang Yoon as Partner effective January 1, 2023. Mi-Rang has been practicing for over 20 years with a number of reputable immigration practice groups and joined Clark Lau LLC in 2019 as a Senior Immigration Associate. Mi-Rang's clients recognize her for taking the time to tackle complex immigration matters and her thorough approach. Mi-Rang joins Magaly Cheng, Eric Lockwood, and Vince Lau on the leadership team at Clark Lau LLC as we head into 2023.

On November 12, 2021, the US Citizenship and Immigration Services (USCIS) announced that spouses of nonimmigrants in the E-1, E-2, E-3, and L-1 status did not have to file for separate employment authorization documents to prove that they were eligible to work in the United States. Their status alone was sufficient. That said, non-spouse dependents of such nonimmigrants remained unauthorized to work. The practical question then was how the spouses would be able to prove to prospective employers their employment authorization.

On January 30, 2022, USCIS and Customs and Border Protection (CBP), the agency that handles the admission of nonimmigrants into the US at the border and airports, started to issue Forms I-94 with new codes distinguishing between spouses and non-spouses of E-1, E-2, E-3, and L-1 nonimmigrants which could be used as proof of their employment authorization.

What remained unanswered was what would be done for those who entered the US prior to January 30, 2022. Would CBP allow these individuals to obtain such revised Forms I-94 by going to the border and airports, without traveling abroad and reentering the US? The official announcement was that CBP would not update Forms I-94.

As of this Friday, March 18, 2022, USCIS announced that starting April 1, 2022, USCIS will be sending individuals who are over the age of 21 and who are spouses of E-1, E-2, E-3, and L-1 nonimmigrants notices that reflect the new codes as proof of employment authorization. If an eligible individual does not receive the notice by April 30, 2022, they can contact the USCIS by emailing [email protected] These notices will only go to those who had previously filed a Form I-539 that indicated that they were the spouses of E-1, E-2, E-3, or L-1 nonimmigrants. For those who have not ever filed a Form I-539, stay tuned for further updates!

Please note that the above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to see how this may apply to your specific circumstances.

Everyone needs permission from the US government to remain in the US and to work in the US. US employment-based immigration laws govern who and how one can obtain work permission, i.e., work visas. The ability to remain in the US and the ability to work in the US however are not necessarily entwined. Spouses of individuals who receive work visas are given visas that allow them to accompany the principal visa holder, i.e., the worker, but does not always allow them to work.

Spouses of E-1 (treaty trader), E-2 (treaty investors), E-3 (specialty occupation individuals who are citizens of Australia) and L-1 (intracompany transferees who are executives, managers, or individuals with specialized knowledge of the company) may receive E-2 and L-2 dependent visas respectively. If these individuals wanted to have employment authorization, these individuals would have to file separate applications for an employment authorization document (EAD). Since the COVID pandemic, the processing times for EAD applications have gotten so bad, that a lawsuit was brought against the US Citizenship and Immigration Services (USCIS). In deposition testimony, USCIS admitted that the processing times were much longer than usual due to staffing issues. In a settlement of the lawsuit, USCIS revised its policies and indicated that spouses of E-1, E-2, and L-1 visa holders could work incident to their status. That is, the spouses would no longer need to apply for the EADs to have work authorization. While this was welcome news, it was still unclear as to how such individuals would be able to prove to prospective employers that they did have employment authorization when other rules required them to show proper verification of their employment authorization before they could work.

As of January 31, 2022, and most recently confirmed but the government, the US Customs and Border Protection (CBP) updated its systems to offer individuals entering the US with the following designations:

E-1S – Spouse of E-1
E-1Y – Child of E-1
E-2S – Spouse of E-2
E-2Y – Child of E-2
E-3S – Spouse of E-3
E-3Y – Child of E-3
L-2S – Spouse of L-1A or B
L-2Y – Child of L-1A or B

Those with E-1S, E-2S, E-3S, and L-2S designations may now work without applying for separate EADs. They can now show these designations to prospective employers as proof that they have employment authorization. CBP has indicated that individuals entering the US on or after January 31, 2022 should be subject to this new system. As for individuals who were in the US prior to January 31, 2022, they would not receive these new designations until they reenter the US after traveling abroad any date after January 31, 2022. The official response is the local CBP offices will not change one’s designation without the reentry. As a practical matter, individuals who are eligible for these new designations should check their I-94 records after their next entry into the US to ensure that CBP has properly admitted them into the US.

The above information has been provided for educational purposes only. Please check with your Clark Lau LLC attorney to see whether the above applies to your specific circumstances. Stay tuned for more information.

Biden Administration Just Announced New STEM-Friendly Policies

J-1 visas are available for individuals entering the U.S. temporarily, measured in months and years, in connection with a wide range of purposes, including training and research. The Biden Administration just announced the following

• The U.S. State Department’s Bureau of Educational & Cultural Affairs (ECA) will have an “Early Career STEM Research Initiative” to facilitate nonimmigrant BridgeUSA exchange visitors coming to the U.S. to engage in STEM research. There will be new guidance that will facilitate additional academic training for undergraduate and graduate students in STEM fields on a J-1 visa for periods up to 36 months.
• To be eligible for this program, exchange visitors must be undergraduate and pre-doctoral degree-seeking college and university students who are pursuing or recently completed STEM-related studies. The maximum length of the program is 36 months (including a single extension).
• Non-degree seeking students are not-eligible.

F-1 visas are held by international academic students. Upon completion of U.S. degree programs, F-1 students may apply for employment authorization in the form of Optional Practical Training (OPT) which lasts 12 months. Those with degrees in specific STEM fields, and who have employers signed up for the E-Verify program, are eligible to apply for 24 additional months of OPT, referred as STEM OPT.

U.S. Department of Homeland Security (DHS) Secretary Mayorkas announced adding 22 new fields of study which will be eligible for the STEM OPT program. Information on the new fields of study will be communicated to schools and students in a forthcoming Federal Register notice. The new fields of study are primarily new multidisciplinary or emerging fields.

O-1A visas are available for nonimmigrant individuals in the U.S. who meet certain criteria demonstrating that they are individuals of extraordinary ability. DHS is issuing an update to its policy manual as to what evidence may satisfy O-1A evidentiary criteria.

• Update provides examples of evidence that satisfies O-1A evidentiary criteria and discusses considerations relevant to evaluating the evidence, with a focus on the highly technical nature of STEM fields
• Update emphasizes that if a petitioner demonstrates that a particular criterion does not readily apply to the occupation, comparable significance would be acceptable.

National Interest Waiver Policy Update. Many individuals seeking to be in the US longer than the duration of a nonimmigrant visa must have an employer test the labor market before petitioning for permanent residency (green card) for them. Those individuals who can prove that they are accomplished in an area that of a “national interest” to the US can seek a waiver of this labor market test. DHS will be updating its policy manual regarding how USCIS adjudicates such waivers, referred to as National Interest Waivers (NIWs). Specifically, DHS will clarify how the NIW can be used for persons with advanced degrees in STEM fields and for entrepreneurs; the update will also discuss the weight given to letters of recommendation/support from governmental and quasi-governmental entities.

While the policies take effect immediately on January 21, 2022, Clark Lau LLC will continue to monitor to see how these will practically play out. The above has been prepared by the Clark Lau LLC team for informational purposes only. Please contact a Clark Lau LLC attorney to determine how the above may impact your specific circumstances.

Today the White House announced the overarching details of the long-awaited lifting of the “travel ban.” Since the start of the COVID-19 pandemic, the White House has prohibited entry into the United States of individuals who had been present in a list of countries within 14 days of seeking admission into the United States, with certain exceptions. These countries include the United Kingdom, Ireland, countries of the Schengen region, China, Brazil, India, and South Africa. As of November 8, 2021, this ban will no longer be in place. Instead, the White House is requiring travelers to the United States to be fully vaccinated, unless they meet certain criteria. What “fully vaccinated” means, what vaccinations would suffice, and what proof would be acceptable will be announced later and presumably in advance of November 8, 2021.

As a general rule, nonimmigrants, i.e., visa holders, who are not fully vaccinated against COVID-19 may not enter the U.S. by air. Exceptions will include those who comply with “applicable public health precautions established by the Director of the CDC” which may include “vaccination [or promise to vaccinate within a certain period of time, such as 60 days of entry], testing, mask-wearing, self-quarantine, and self-isolation.” Examples of actions that the CDC may invoke include “proof of pre-departure testing for COVID-19,” “precautions during air travel to protect against the further introduction, transmission, and spread of COVID-19, including by wearing a face mask,” “proof of having arranged for post-arrival testing for COVID-19,” and “proof of having arranged to self-quarantine or self-isolate after arriving in the United States.” Further any “noncitizen who is a nonimmigrant, who is not fully vaccinated against COVID-19, and who … is permitted to enter the United States by air travel … must agree to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, within some other timeframe as determined by the Director of the CDC, or as soon as medically appropriate as determined by the Director of the CDC, and must provide proof of having arranged to become fully vaccinated against COVID-19 after arriving in the United States.” Exceptions exist for those entering the United States in certain government/diplomatic visa classifications, for humanitarian or emergency reasons, as crew members, in connection with COVID-19 clinical trials, in the national interest, and for whom legitimate medical reasons exist.

The above information has been provided for educational purposes only. The White House’s announcement contains more in-depth details regarding exceptions and requirements. Please contact your Clark Lau LLC attorney if you have any questions.

The White House just announced today that it will be taking an individualized approach, versus a categorical approach, to curb the spread of COVID-19 arising out of international travel.

Currently, individuals who have been in any of the restricted countries within 14 days of traveling to the U.S. are prohibited from entering unless they meet certain exceptions. Such countries include China, Brazil, South Africa, India, the U.K., Ireland, and the Schengen countries. The White House announced today that starting in early November these restrictions will be dropped. Instead, all adults traveling into the United States will need to provide proof of vaccination, be subject to certain testing requirements, and also participate in a contact tracing program. More details will be released as the White House works out the details; stay tuned!

This information has been provided for informational purposes only. Please check with your Clark Lau LLC attorney to see how this impacts your specific set of facts.