Legal Updates Archive

The Department of Homeland Security announced several measures to provide relief for Ethiopians in the United States.

The Department of Homeland Security announced the extension of temporary protected status for Haiti through August 3, 2024. DHS also redesignated Haiti for TPS, allowing eligible Haitian nationals residing in the United States as of November 6, 2022, to apply for TPS through August 3, 2024.

U.S. Citizenship and Immigration Services is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.

The Citizenship and Immigration Services Ombudsman released an updated Form 7001, Request for Case Assistance.

Effective in January, employment first preference final action and application filing dates for China and India are established to hold number use within the maximum allowed under the fiscal year 2023 annual limit.

The Department of Homeland Security plans to extend and redesignate Yemen for temporary protected status in a Federal Register notice expected to be published on January 3, 2023.

Effective January 5, 2023, the Centers for Disease Control and Prevention will require a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China and the Special Administrative Regions of Hong Kong and Macau.

The Department of Homeland Security issued an update on December 13, 2022, on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld by the D.C. Circuit Court of Appeals in a ruling on December 16, 2022. Title 42 prevented many migrants from seeking asylum in the United States because of COVID-19 concerns and required them to wait in Mexico. 

The Immigrant Visa Unit of the U.S. consulate in Guangzhou, China, announced that beginning December 19, 2022, it will be closed for regular visa services until further notice due to limited resources.  The unit will notify the public once it is able to resume normal immigrant visa operations and will communicate with applicants to reschedule their canceled appointments. 

The Federal Trade Commission raised questions with employers when it issued a notice of proposed rulemaking that seeks to ban all non-compete agreements nationwide. While the proposed rule could impose drastic change, at this point, the proposed rule is in the public comment period, and it is uncertain what the final rule will look like or whether it will face legal challenges in the near future. 

On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act of 2023, containing the SECURE 2.0 Act of 2022 (SECURE 2.0). While most of SECURE 2.0’s provisions will not take effect for a couple years, SECURE 2.0 impacts most retirement plans, and plan sponsors should be aware of future changes under SECURE 2.0.

The Department of State’s Visa Bulletin for December 2022 includes a variety of updates.

The Department of Labor’s Office of Foreign Labor Certification has released various data and statistics and the latest H-2B recruiter list.

The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year.

To ensure its continued compliance with several court orders, the Department of Homeland Security is automatically extending the validity of certain temporary protected status-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal from the current expiration date of December 31, 2022, through June 30, 2024.

E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and on a regular basis.

On November 15, 2022, U.S. District Court Judge Emmet Sullivan blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which Judge Sullivan granted. The order will be effective December 21, 2022.

Effective November 21, 2022, certain Afghan and Ukrainian parolees are considered work authorized incident to their parole status based on recently passed laws, U.S. Citizenship and Immigration Services announced.

The National Labor Relations Board (NLRB or the Board)—the independent federal agency responsible for enforcing U.S. private-sector labor law—had a busy week. The Board issued four new rulings with significant impacts on labor relations between employers and their employees.

USCIS and DOL have released the joint temporary rule that provides 64,716 additional H-2B temporary nonagricultural worker visas within FY 2023 (from October 1, 2022, to September 30, 2023). 20,000 visas will be reserved for nationals of Haiti and the Northern Triangle countries (El Salvador, Guatemala and Honduras). The remaining 44,716 visas will be available to returning workers who were otherwise granted H-2B status in the past three  fiscal years, and they will be released incrementally based on a schedule outlined by the Department of Labor (DOL) and U.S. Citizenship and Immigration Service (USCIS).

It is increasingly important for companies to understand the difference between employees and independent contractors and the consequences of each classification. This type of classification dispute, however, is not limited to drivers. Recently, agricultural, retail, contracting, consulting, health care, manufacturing, insurance, and financial services industries have seen a rise in worker classification audits. This raises the question, how are worker classifications determined in the context of tax and employment law?

If you have recently received a subpoena from a government agency investigating a customer’s financial dealings, you are not alone. As the alarm and uncertainty of the COVID-19 pandemic finally begin to calm, audits and investigations concerning the use of funds from pandemic relief initiatives such as the Paycheck Protection Program, Main Street Lending Program, and others are in full swing, sometimes followed by civil and criminal charges.

Recently, we have seen county magistrates in at least Linn, Wapello, Muscatine and Black Hawk Counties dismiss eviction actions based upon supposed insufficient service of the underlying notices that were the basis for the eviction. Landlords in these counties must take note of our new recommendations for service based upon these recent rulings and implement them when they encounter challenges in these counties.

The Department of Labor announced the impending publication of a final rule to amend H-2A temporary labor certification regulations to strengthen agricultural worker protections and to update the H-2A application and temporary labor certification as well as prevailing wage determination processes.

The Department of State released a bulletin for November 2022 that includes information on Extension of Religious Workers Category and visa availability in Employment Second Category.

President Biden issued a determination that up to 125,000 refugee admissions for fiscal year 2023 “is justified by humanitarian concerns or is otherwise in the national interest.” Regional allocations include Africa, East Asia, Europe and Central Asia, Latin America/Caribbean, Near East/South Asia and Unallocated Reserve.

The Department of Homeland Security alerted employers on October 11, 2022, that they should continue using the current Form I-9, Employment Eligibility Verification, even after its October 31, 2022, expiration and “until further notice.”

The Department of Homeland Security, in consultation with the Department of Labor, plans to issue a regulation to make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2023, on top of the 66,000 H-2B visas that are normally available each fiscal year.

On October 12, 2022, the Department of Homeland Security announced joint actions with Mexico to reduce the number of people arriving at the Southwest border and “create a more orderly and safe process for people fleeing the humanitarian and economic crisis in Venezuela.” The actions include a new process to bring up to 24,000 qualifying Venezuelans into the United States and provide them with work authorization.

U.S. Citizenship and Immigration Services began implementing a new process for Venezuelans on October 18, 2022. As announced previously, the new process will provide a “lawful and streamlined” way for nationals of Venezuela who are “outside the United States and lacking U.S. entry documents to come to the United States.”

The Department of Homeland Security announced the designation of Ethiopia for Temporary Protected Status for 18 months. Only individuals who were already continuously residing in the United States as of October 20, 2022, will be eligible for TPS.

E-Verify reminded employers that operations have resumed and released preferred dates for employees to visit the Social Security Administration to resolve their Tentative Nonconfirmations. E-Verify said that the timeframes are recommended, not required, but that all employees must visit SSA to resolve their TNCs by September 29, 2023, or their cases will automatically get Final Nonconfirmations.

U.S. Customs and Border Protection has automated the I-94 process for most nonimmigrants arriving by air and sea. According to reports, this means that in many cases, foreign nationals no longer receive an entry stamp in their passports at ports of entry documenting their arrival.

The Department of Homeland Security’s final rule on Deferred Action for Childhood Arrivals took effect on October 31, 2022. Under the final rule, U.S. Citizenship and Immigration Services will continue to accept and process applications for deferred action, work authorization and advance parole for current DACA recipients. Due to ongoing litigation, USCIS will continue to accept applications but cannot process initial DACA requests.

U.S. Citizenship and Immigration Services announced that it is extending certain COVID-19-related flexibilities through January 24, 2023, to assist applicants, petitioners and requestors.

On October 25, 2022, the Department of Labor’s Office of Foreign Labor Certification issued a set of frequently asked questions, “Round 2: Job Order Filing and Processing,” associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.

U.S. Citizenship and Immigration Services no longer requires petitioners to submit duplicate copies of Form I-129, Petition for a Nonimmigrant Worker or of the supporting documentation, unless the agency specifically asks for it.

Two recent developments involving the Committee on Foreign Investment in the United States continue CFIUS’s trend of more active review and intervention in transactions that it deems detrimental to the national security of the United States.

Disputes regarding failures to disclose material facts are common in residential real estate transactions. A 1991 New York case dealt with the much less common issue of whether a home seller is required to disclose the presence of paranormal activity.

The United States Department of Commerce has recently issued new regulations that are already having a global impact on companies involved with advanced semiconductor chips. The new regulations seek to limit China’s access to these chips by restricting the ability of international companies and U.S. nationals to provide goods and services related to the design, fabrication and access to advanced semiconductor chips as well as computers and assemblies containing such chips.

Recently, we have seen several instances of Iowa manufactured home community (MHC) owner-operators (landlords) not fully complying with the laws regarding statutorily required notices and reports that landlords must provide to their local county treasurers. This article sets forth all such required notices and reports. It is important that both MHC owners and their community managers are fully aware of and comply with these laws, particularly considering that landlords can be fined for noncompliance with such laws.

The Internal Revenue Service has announced the 2023 cost-of-living adjustments (COLAs) for benefit plans. All limits have increased.

For office actions issued on or after December 3, 2022, by the USPTO during the examination of a trademark application, an applicant will have three months to file a response instead of the current six-month period but will have an option to file a single request for a three-month extension to the response deadline upon payment of a $125 fee.

USCIS released updated fiscal year 2023 frequently asked questions on employment-based adjustment of status.

USCIS announced on September 15, 2022, that it is implementing the next phase of the premium processing expansion for certain petitioners.

Effective September 26, 2022, USCIS is automatically extending the validity of permanent resident cards to 24 months for lawful permanent residents who file Form I-90.

The Department of State's Visa Bulletin for October 2022, the first month of the new fiscal year, includes several updates.

DHS is amending its regulations, effective December 23, 2022, regarding whether noncitizens are inadmissible to the United States.

DHS plans to provide employment authorization for certain individuals covered by Liberian Deferred Enforced Departure.

DHS is extending temporary protected status for Myanmar, formerly Burma, for an additional 18 months due to a military coup in 2021.