FGI News and Publications

December 3, 2020 Newsletter Powered By ABIL

DHS Extends Form I-9 Requirement Flexibility

The Department of Homeland Security (DHS) and U.S. Immigration

and Customs Enforcement (ICE) extended until December 31, 2020,

flexibility in complying with requirements related to Form I-9,

Employment Eligibility Verification, due to ongoing precautions

related to the COVID-19 pandemic. The temporary guidance was set to

expire November 19, 2020.

DHS noted that this provision only applies to employers and

workplaces that are operating remotely. The original news release

gives more information on how to obtain, remotely inspect, and

retain copies of the identity and employment eligibility documents

to complete Section 2 of Form I-9. DHS said that employers must

monitor the DHS and ICE websites for additional updates about when

the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the

remote inspection option should continue to follow current guidance

and create cases for their new hires within three business days

from the date of hire.

DHS notice, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-0

Original DHS news release, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

DHS website, https://www.dhs.gov/

ICE website, https://www.ice.gov/news/overview

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2021

U.S. Citizenship and Immigration Services announced on November

18, 2020, that it received enough petitions to reach the

congressionally mandated cap on H-2B visas for temporary

nonagricultural workers for the first half of fiscal year 2021.

November 16, 2020, was the final receipt date for new cap-subject

H-2B worker petitions requesting an employment start date before

April 1, 2021. USCIS will reject new cap-subject H-2B petitions

received after November 16 that request an employment start date

before April 1, 2021.

USCIS continues to accept H-2B petitions that are exempt from

the congressionally mandated cap, including the following


  • Current H-2B workers in the United States who are extendingtheir stay and, if applicable, changing the terms of their

    employment or changing their employers;

  • Fish roe processors, fish roe technicians, and/or supervisorsof fish roe processing; and
  • Workers performing labor or services in the Commonwealth of theNorthern Mariana Islands and/or Guam from November 28, 2009, until

    December 31, 2029.

USCIS noted that Congress has set the H-2B cap at 66,000 per

fiscal year, with 33,000 for workers who begin employment in the

first half of the fiscal year (October 1 through March 31) and

33,000 (plus any unused numbers from the first half of the fiscal

year) for workers who begin employment in the second half of the

fiscal year (April 1 through September 30).

Details: USCIS notice, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021

DHS Issues Proposed Rule to Expand Biometrics Collection

The Department of Homeland Security (DHS) proposes to

“permit collection of biometrics from aliens departing from

airports, land ports, seaports, or any other authorized point of

departure.” In addition, to enable U.S. Customs and Border

Protection (CBP) to verify identity by using facial recognition

technology, DHS proposes “to amend the regulations to provide

that all aliens may be required to be photographed upon entry

and/or departure.”

U.S. citizens may voluntarily opt out of participating in

CBP’s biometric verification program.

Details: DHS notice of proposed rulemaking on biometrics


USCIS Updates Guidance on Discretionary Factors for Adjustment

of Status Applications

U.S. Citizenship and Immigration Services (USCIS) is updating

existing policy guidance regarding agency discretion in

adjudications of adjustment of status applications.

The update provides “a non-exhaustive list of positive and

negative factors that may be relevant to whether an adjustment of

status applicant warrants a favorable exercise of discretion.”

It also lists the privileges, rights, and responsibilities of

lawful permanent residents (LPRs) as a reference for officers to

consider when determining whether the grant of LPR status is in the

best interest of the United States.

USCIS said this update “will assist officers in making more

consistent discretionary decisions by providing a foundation to

identify and analyze negative and positive factors in adjustment of

status applications.”

Details: USCIS notice, https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-regarding-discretionary-factors-for-adjustment-of-status-applications

USCIS policy alert, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20201117-AOSDiscretion.pdf

USCIS policy manual update, https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4

Alejandro Mayorkas Nominated To Direct Department of Homeland


President-elect Joe Biden announced on November 23, 2020, his

nomination of Alejandro Mayorkas to lead the Department of Homeland

Security (DHS). During the Obama administration, Mr. Mayorkas

directed U.S. Citizenship and Immigration Services and then became

deputy secretary of DHS. During his more than 30-year career, Mr.

Mayorkas also served as a U.S. attorney in California. He is a

partner at WilmerHale, leading its COVID-19 Coronavirus Task


Mr. Mayorkas’ accomplishments in the Obama administration

included developing and implementing the Deferred Action for

Childhood Arrivals (DACA) program, which benefited more than

700,000 youth. President-elect Biden said that Mr. Mayorkas

“will play a critical role in fixing our broken immigration

system and understands that living up to our values and protecting

our nation’s security aren’t mutually exclusive—and

under his leadership, they’ll go hand-in-hand.”

Mr. Mayorkas, who was born in Havana and is the son of Jewish

refugees who fled Cuba during the Castro revolution, would make

history as the first Latino and first immigrant in that position,

if confirmed by the Senate. His Romanian mother escaped the

Holocaust and met his father, of Sephardic heritage, in Cuba.

On the day of the nomination announcement, Mr. Mayorkas tweeted,

“When I was very young, the United States provided my family

and me a place of refuge. Now, I have been nominated to be the DHS

Secretary and oversee the protection of all Americans and those who

flee persecution in search of a better life for themselves and

their loved ones.”

Details: Biography, Alejandro Mayorkas, Biden-Harris Nominees

and Appointees, https://buildbackbetter.gov/the-administration/nominees-and-appointees/alejandro-mayorkas/

Mr. Mayorkas’ Twitter page, https://twitter.com/AliMayorkas/status/1330937834908250115

“Alejandro Mayorkas, Biden’s Pick for DHS Head, Would

Be 1st Latino in Post,” NPR, https://n.pr/2VqjRvD

Biography, Alejandro Mayorkas, WilmerHale, https://www.wilmerhale.com/en/people/alejandro-mayorkas

“Biden Picks Alejandro Mayorkas, a Son of Sephardic Jewish

Cuban Refugees, to Lead the Department of Homeland Security,”

eSefarad, https://esefarad.com/?p=100825

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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