Legal Updates Archive

The Department of Homeland Security announced several measures to provide relief for Haitians in the United States, including temporary protected status and special student relief.

U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through March 23, 2023. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date for requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and March 23, 2023.

Iowa’s 2023 legislative session is well under way. Landlords should be aware of the following active bills at the Iowa Capitol.

U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2024 H-1B cap will open at noon EST on March 1, 2023, and run through noon EST on March 17, 2023. If USCIS receives enough registrations by the time the registration window closes, USCIS will conduct a registration lottery. 

As in prior years, Fredrikson anticipates that the United States Citizenship and Immigration Services will open the initial registration period for the cap-subject fiscal year 2024 H-1B visas in early March 2023. While USCIS will announce the registration window and process, which will allow prospective petitioners to create new accounts for the H-1B lottery registration soon, employers who would like to participate in the H-1B lottery for FY 2024 should start preparing for it now.

On December 8, 2022, U.S. Citizenship and Immigration Services announced filing updates for petitioners who will be requesting additional H-2B workers for fiscal year 2023 under the upcoming temporary final rule. USCIS said it was announcing these updates to assist petitioners who wish to begin preparing their petitions before publication of a rule in the Federal Register.

In a temporary final rule published on December 15, 2022, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has increased the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2023. To “assist U.S. businesses that need workers to begin work on different start dates,” the Departments of Homeland Security and Labor will distribute the supplemental visas in several allocations, including two separate allocations in the second half of FY 2023.

In response to a federal court order, the Department of Labor’s Office of Foreign Labor Certification plans to rescind H-2B registration requirements and propose conforming edits throughout its H-2B regulations. In the interim, DOL said it will use the Notice of Acceptance, issued when an H-2B application meets regulatory requirements and the employer can begin recruiting U.S. workers, to inform an H-2B employer of DOL’s determination of the employer’s temporary need for services or labor.

The Department of Labor’s Office of Foreign Labor Certification has issued a set of frequently asked questions, “Round 4: H-2A Application Filing and Processing,” associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.

The Department of Labor’s Office of Foreign Labor Certification has released frequently asked questions on prevailing wage surveys under the 2022 H-2A final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,” published on October 12, 2022, and effective November 14, 2022.

In two notices, the Department of Labor’s Employment and Training Administration announced the new Adverse Effect Wage Rates under the H-2A program.

On December 7, 2022, the Department of Labor’s Office of Foreign Labor Certification issued its third round of frequently asked questions related to the 2022 H-2A final rule published in October, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.”

U.S. Citizenship and Immigration Services is automatically extending the validity of Permanent Resident Cards for lawful permanent residents who applied for naturalization on December 12, 2022, or later. LPRs who filed for naturalization before December 12 will not receive this extension.

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.