In the United States, employment discrimination based on national origin and citizenship status is strictly prohibited by the Immigration and Nationality Act (INA). The Department of Justice’s Immigrant and Employee Rights (IER) section plays a crucial role in monitoring and enforcing these regulations. This blog post explores recent allegations of discrimination by a company under investigation by the IER.

There are very limited situations where a “U.S. citizen only” requirement is permissible. See, for example, CIA Requirements – CIA. In circumstances where we absolutely know the position requires U.S. citizenship, job postings could say something like:

“You must be a U.S. citizen to be hired for this position. If you are in the process of becoming a U.S. citizen, you can submit your resume as soon as you are awarded citizenship, but not before.” We do not help individuals apply for U.S. citizenship.

However, the general default is “U.S. person” as described below. If a job requires a security clearance and/or access to CUI data, you might just state that in the job posting. If U.S. persons apply and can’t show the appropriate level of clearance to meet the job requirements, they can be disqualified on that point as opposed to their citizenship/immigration status.

The IER monitors, among other things, employment discrimination based on U.S. citizen only practices. IER recently filed a complaint against a U.S. Company claiming that it improperly and broadly screened U.S. applicants out of the pool of potentially qualified applicants. Civil Rights Division | IER Cases And Matters (justice.gov)

IER claims that Company is engaging in discriminatory hiring practices that disadvantage asylees and refugees seeking employment within the company. IER further accuses the Company of violating the INA by exhibiting bias against individuals based on their citizenship status during the hiring process.

The allegations in the complaint date back from September 2018 to May 2022 and claim that the Company systematically discriminated against asylees and refugees at various stages of the hiring process, including recruitment, screening, and selection. This alleged discrimination resulted in a significantly reduced chance for asylees and refugees to be fairly considered or hired for positions at Company.

The DOJ’s complaint points out several instances where Company’s actions may have discouraged asylees and refugees from applying for jobs. In various public statements, including social media posts and online video presentations, Company officials allegedly made misleading statements that only U.S. citizens and lawful permanent residents could be hired due to export control regulations. Furthermore, the complaint asserts that Company’s online recruiting communications repeatedly conveyed the same notion, thereby creating an environment where qualified asylees and refugees might have been dissuaded from pursuing employment opportunities.

The complaint also outlines Company’s hiring records, which reportedly showed a pattern of rejecting applicants who identified as asylees or refugees due to their citizenship or immigration status. IER is very sensitive to U.S. citizen only requirements and, as stated above, it might be best to just post clear job requirements and not restrict positions beyond the U.S. person requirement. 

For export control purposes, and for IER compliance, the company should consider broadening the recruitment to “U.S. person.” This is because the International Traffic in Arms Regulation (ITAR) (22 C.F.R. Parts 120-130) restricts access to certain controlled technical data and hardware to “U.S. persons,” not just U.S. citizens. 

Specifically, ITAR § 120.62 defines a “U.S. person” as “a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3).” For practical purposes, this means any person who is:

  1. A U.S. citizen;
  2. A U.S. permanent resident alien (“green card” holder);
  3. Lawfully admitted to the United States as a refugee under certain provisions of U.S. law; or
  4. Granted asylum in the United States under certain provisions of U.S. law.

Individuals that are not lawfully admitted to the United States or admitted under most visas are not “U.S. persons” for purposes of the ITAR.

All “U.S. persons” may be granted access to technical data that is controlled under the ITAR without preapproval from the U.S. Department of State’s Directorate of Defense Trade Controls (DDTC), which administers the ITAR. 

Brief Overview of Anti-Discrimination Protections for Asylees, Refugees, and Lawful Permanent Residents in Employment

Asylees and refugees, individuals who have sought refuge in the United States due to a legitimate fear of persecution in their home countries, are granted asylum or refugee status upon approval by the U.S. government. This status grants them the right to reside and work indefinitely within the United States, as established in 8 U.S.C. § 1158(c)(l). Similarly, lawful permanent residents, commonly known as “green card” holders, possess the permanent right to live and work in the country under 8 U.S.C. § 1101(a)(20).

Recognizing the importance of preventing discrimination based on citizenship status and national origin, Congress made amendments to the INA in 1986. This amendment, found in 8 U.S.C. § 1324b(a)(l)(B), explicitly prohibits employment discrimination with regard to hiring practices, encompassing citizenship status and national origin.

The scope of this protection extends to a diverse range of individuals. United States citizens, nationals, asylees, refugees, and specific lawful permanent residents—both those who possess these statuses and those who are perceived to hold them—are shielded from hiring discrimination based on citizenship status, except when required to comply with specific laws, regulations, executive orders, government contracts, or determinations by the Attorney General, as outlined in § 1324b(a)(2)(C). This safeguard ensures that employers cannot discourage, unfairly evaluate, or reject job applicants solely due to their citizenship or immigration status. Employers must uphold the principle of providing equal, fair, and impartial evaluation to all applicants, regardless of their citizenship or immigration status.

Anti-discrimination requirements within the United States emphasize the protection of the rights of asylees, refugees, lawful permanent residents, and citizens, ensuring that all individuals are treated equally in employment opportunities, free from bias based on their citizenship or immigration status. These measures extend across all stages of the hiring process, upholding the principles of fairness, impartiality, and equal consideration for all.

The U.S. Department of Justice (DOJ) has reached another settlement with a company in Boise, Idaho, over allegations that it violated the Immigration and Nationality Act (INA) by unlawfully discriminating against a U.S. citizen when it failed to hire him for a position and instead hired a temporary visa worker. The alleged discrimination occurred in the context of recruitment undergone for the purposes of a PERM application. The DOJ’s Civil Rights Division, Immigrant and Employee Rights Section (IER) initiated its investigation after a U.S. citizen complained that the company denied him employment because of citizenship status.

Under the settlement, the company will pay a civil penalty to the United States and provide back pay totaling $85,000 to the affected worker. The company will also undergo training on the INA’s anti-discrimination provision, revise its policies and procedures, including regarding PERM recruitment, and be subject to departmental monitoring for two years. See the IER Press Release.

This settlement serves as a reminder that employers should ensure their recruitment practices comply with the INA and other relevant laws and regulations. Employers must provide equal employment opportunities to all qualified candidates and avoid making assumptions about an applicant’s immigration status. Employers should seek legal guidance and conduct regular audits of their employment records to prevent discrimination and ensure compliance.

During the Trump Administration, the IER shifted its focus to include U.S. citizens, who are also protected under the INA. This settlement is one of many actions taken by the DOJ to enforce these anti-discrimination laws and protect U.S. workers from discrimination based on their citizenship or immigration status.

shutterstock_30336412_778x360The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits the following employment-related conduct:

(1) Discrimination in hiring, firing or recruiting based on someone’s real or perceived national origin, citizenship or immigration status;

(2) “Document abuse” during the Form I-9 and E-Verify processes of employment eligibility verification, which includes requesting more or different documents based on an individual’s citizenship, immigration status or national origin; and

(3) Retaliation for filing a charge, assisting in an investigation or asserting rights under the anti-discrimination provision.

Thus, generally speaking, an employer may only ask a job applicant whether he or she is legally authorized to work in the U.S., or whether the applicant requires sponsorship for an employment visa, either now or in the future. Under the anti-discrimination provision of the INA, employers are not permitted to ask job applicants questions regarding nationality, country of citizenship, place of birth or U.S. immigration status in an interview or job application.

However, the anti-discrimination provision of the INA conflicts with certain employer compliance requirements under U.S. export control regulations. Specifically, to ensure compliance with U.S. export controls, employers and staffing agencies must determine the citizenship or immigration status of job applicants and new hires for positions that require access to export-controlled articles, technical data, or software. This is because U.S. export control regulations may require employers to obtain export licenses (or otherwise be authorized, under for example a license exception) before a non-U.S. person new hire begins his or her work, which includes any new hire who is not a U.S. citizen, permanent resident or protected individual such as a refugee or asylee.

By way of background, the U.S. government controls the export of sensitive equipment, software, technologies and information in order to promote the country’s foreign policy objectives and national security interests. The current U.S. export control system includes a number of laws and regulations, including the U.S. Department of Commerce’s Export Administration Regulations (EAR) and the U.S. Department of State’s International Traffic in Arms Regulations (ITAR). Under these measures, certain articles, services, technical data and software can only be shared with U.S. persons or non-U.S. persons of certain nationalities.

On March 31, 2016, the OSC issued a Technical Assistance Letter (TAL) stating that an employer may violate the anti-discrimination provision of the INA by requiring applicants and new hires to present documents and answer the following questions regarding their citizenship or immigration status, even if only to ensure compliance with U.S. export control laws and regulations, including EAR and ITAR:

(1) I am one of the following: (a) a citizen of the United States; (b) a lawful permanent resident of the United States; or (c) a person admitted into the United States as an asylee or refugee: YES or NO

(2) If you answered “NO” to Question 1, then please indicate your:

a. Citizenship

b. U.S. Immigration Status.

The abovementioned proposed employer hiring questions would be prefaced by a statement that the questions are for the sole purpose of ensuring compliance with U.S. export control laws and must only be answered if the applicant or newly hired employee wishes to be considered for such positions.

In its letter, OSC writes that an employer or staffing agency is unlikely to violate the anti-discrimination provision of the INA by asking the proposed questions regarding citizenship or immigration status to all applicants and new hires for the sole purpose of determining whether an export license is needed for certain individuals for particular positions. It would be reasonable for an employer to make a hiring decision for a position requiring an export license based on an applicant’s nationality, as U.S. employers are legally prohibited from obtaining export licenses to release sensitive information, equipment or technologies to persons of certain nationalities. For example, under ITAR, there is a prohibition on issuing licenses authorizing the disclosure of certain military or defense-related information and technical data to nationals of countries against which the U.S. maintains an arms embargo, including China, Burma, Venezuela and Vietnam, among others. Additionally, there is a prohibition on licensing many forms of export-controlled technology and technical data to certain Cuban nationals as a result of the U.S. arms and trade embargoes against Cuba. Thus, an employer who would require such a license for a particular position would need to ascertain an applicant’s nationality to determine his or her eligibility for the role.

Nevertheless, if an employer is hiring for both positions that would require export licenses for non-U.S. person hires as well as those that would not, OSC discourages asking questions regarding an individual’s citizenship or immigration status prior to offer and acceptance of employment, even if the questions are posed in a nondiscriminatory manner. This is because it may amount to citizenship status discrimination if an employer rejects a job applicant or limits the scope of a new hire’s potential assignments based on his or her responses. Moreover, such questions could lead a rejected applicant to assume this decision was based on his or her citizenship or immigration status and cause that individual to file a discrimination charge against the employer with OSC. Additionally, questions regarding immigration or citizenship status for positions that are subject to export control laws may deter refugees and asylees (who are protected from citizenship status discrimination) from applying due to confusion about eligibility for the position.

Finally, OSC writes that an employer is unlikely to violate the anti-discrimination provision of the INA by implementing a system of document verification to determine a new hire’s citizenship or immigration status solely for the purpose of complying with export control laws, as long as this process is separate and distinct from the employment eligibility verification process. However, it is important for employers to avoid any impression that such requests are made for employment eligibility verification purposes, which would violate the INA’s prohibition against document abuse and unfair documentary practices.

It is important to note that once a job applicant accepts an offer of employment, an employer should ask employees for information regarding nationality and U.S. immigration status if the individual indicates during the application process that he or she requires sponsorship. Only with this information can the employer apply for and obtain the proper nonimmigrant employment authorization for that individual. At this stage, an employer would not violate the anti-discrimination provision of the INA by asking these questions of such an employee.

The guidance provided in OSC’s TAL to resolve the tension between an employer’s compliance with the anti-discrimination provision of the INA and compliance with U.S. export control laws, including EAR and ITAR, is complicated and nuanced. It is therefore imperative for employers subject to U.S. export control laws to consult with experienced immigration attorneys prior to developing their company policies on interviewing and job applications.

 

Recently, the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (‘OSC’) entered into a settlement agreement with a landscaping company following allegations of immigrant discrimination.  The DOJ lawsuit against the company concerned corporate practices requiring Lawful Permanent Residents (green card holders) to produce their green cards in order to prove their work authorization– a practice in direct violation of the law [Immigration and Nationality Act (INA) Section 274B / 8 U.S.C. Section 1324b(a)(6)].

The OSC investigation concluded the landscaping company required Lawful Permanent Residents provide their green cards in order to prove work authorization in the employment verification process whereas US citizens could select whatever valid documentation they wanted to demonstrate work authorization.  The resulting settlement requires the company pay thousands of dollars in civil penalties, undertake training on the anti-discrimination provision of the INA, and undergo monitoring and reporting.

The OSC is responsible for enforcing the federal anti-discrimination provision of the INA. This includes investigating and enforcing the anti-discrimination laws which prohibit citizenship status and national origin discrimination in hiring, firing, recruitment; document abuse, such as unfair documentary practices during the employment verification process/Form I-9; retaliation or intimidation.  Specifically, the anti-discrimination provision of the INA prohibits employers from placing additional documentary burdens on employees authorized to work  because of their citizenship or immigration status.

The Form I-9 requires the employee to submit documentation verifying their identity and authorization to work in the United States.  The Form includes lists of documents the employee may use to satisfy the requirements and it is the employee’s choice alone as to which documents they elect to submit.  For example, a Lawful Permanent Resident is not required to submit their green card to satisfy the Form I-9 employment verification requirements; rather, the Lawful Permanent Resident may elect to submit any of the documents/permissible combination of documents listed on the Form I-9 to establish their employment authorization (no different from a US Citizen completing the Form I-9).  Requiring certain employees to produce unnecessary documentation based on their citizenship or immigration status is discriminatory and actionable.

It is important for employers to remember that Lawful Permanent Residents are issued green cards and have authorization to live and work in the United States permanently.  While the green card generally contains an expiration date, the expiration of the green card does not indicate the holder has lost his or her permanent resident status in the United States.  In other words, simply because the green card expires does not mean the individual has lost their right to work in the US.  However, a Lawful  Permanent Resident cannot use an expired green card for Form I-9 employment verification purposes; generally, an employer may not accept expired documents in the Form I-9 process.

The recent OSC settlements are a reminder to employers across the country of the employment verification requirements and the consequences for engaging in discriminatory practices.  The OSC is committed to protecting all individuals authorized to work in the US from discriminatory practices and this case illustrates they will vigorously investigate and enforce the anti-discrimination provision of the INA.

The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently issued two Technical Assistance Letters (TAL) that provide guidance on the Immigration and Nationality Act’s (INA) anti-discrimination provision and its applicability in situations involving the use of the E-Verify program and internal I-9 audits.

On August 24, 2015, the OSC responded to a request for guidance about whether a staffing company that was not enrolled in E-Verify could use the program selectively in order to fulfill a request from a client.  Specifically, the question was whether selective use of E-Verify in this context would violate the anti-discrimination provision of the INA (8 U.S.C. § 1324b).  The OSC noted that section 1324b prohibits four types of conduct: discrimination based on citizenship or immigration status; discrimination based on national origin; unfair practices related to verification of documents relating to employment eligibility; and retaliation for asserting rights under the anti-discrimination provision.

The OSC began by pointing to the resources at U.S. Citizenship and Immigration Services (USCIS), which administers the program and noted that both the E-Verify program’s terms and conditions and the INA’s anti-discrimination provision prohibit the selective use of E-Verify based upon an employee’s citizenship status or national origin.  Further, the OSC cautioned against the selective use of E-Verify in response to client requests, noting that such selective use could create the appearance of discrimination.  The OSC was clear, however, that selective use of E-Verify “wholly unrelated” to citizenship status or national origin would “likely not” violate the INA’s anti-discrimination provision.

In accordance with this OSC guidance, employers are advised to never use E-Verify selectively, even if it relates to a legitimate business need, as affected employees could file discrimination claims with the OSC. The OSC generally investigates all such claims of employer discrimination involving E-Verify.  Convincing OSC that an employer’s selective use of E-Verify was in no way discriminatory is time consuming, fact based, and invasive for an employer.

In a second TAL, issued on October 23, 2015, the OSC provided guidance to a question concerning the permissibility of an employer’s requests to employees, following an internal I-9 audit, for alternative documentation to establish employment eligibility where the employees’ Permanent Resident Cards (Forms I-551) raised doubts concerning their validity.  Furthermore, the requestor asked OSC whether the fact that the two employees in question shared the same national origin could run afoul of INA §1324b and result in discrimination complaints under the provision.  The requestor also asked whether the requestor’s law firm had an obligation to “train” the client with respect to evaluating the validity of employee documents.  The OSC directed the requestor to Immigration and Customs Enforcement on this question.

After invoking the prohibitions in INA §1324b, the OSC stated that when conducting an internal I-9 audit, the employer should conduct the audit in a consistent manner and must not treat employees differently based on national origin or citizenship status.  An employer must not base the selection of I-9 forms, or the level of scrutiny applied, on national origin or citizenship status.  The OSC further advised that where an employer identifies documentation that raises questions, the employer may, without violating the anti-discrimination provisions of the INA, request alternative documentation from the employee.  The employer must not, however, request specific alternative documents from the employee.  Rather, the employer should permit the employee to present alternative documents that are allowable for purposes of proving employment eligibility.

Taken together, the two OSC TALs reflect the basic principle that when examining the employment eligibility of individuals, equal, objective, and consistent application of both pre and post-employment verification mechanisms is essential.  The OSC makes clear that in either context, taking employment verification-related actions that are based upon an individual’s citizenship status or national origin, or which could create the appearance of being based upon those factors, must be avoided.

The U.S. Department of Justice (DOJ) recently entered into a settlement agreement with three staffing companies in the Memphis, Tennessee area. DOJ’s investigation discovered that each of the companies rejected the employment of two qualified individuals based on them being born in Puerto Rico. Specifically, the employers refused to accept each individual’s valid Puerto Rican birth certificates, mistakenly believing that Puerto Rico is a foreign country, and they engaged in document abuse by requesting each individual’s U.S. naturalization certificates to evidence their U.S. citizenship status. Puerto Rico is a U.S territory, and those born in Puerto Rico acquire U.S. citizenship at birth. The Immigration and Nationality Act (INA) prohibits discrimination in hiring based on perceived or actual citizenship status, as well as placing additional documentary burdens upon an individual based on these criteria. Pursuant to the terms of the settlement agreement, the staffing companies agreed to pay lost wages as well as civil penalties. The companies also agreed to be subject to monitoring of their employment verification practices by the DOJ for two years, which is standard practice in these types of settlements with employers.

Within the DOJ, the Office of Special Counsel for Immigration-Related Unfair Employment Practices is responsible for the enforcement of the anti-discrimination provisions in the INA. The INA prohibits, among other things, discrimination in recruitment, hiring, and termination based on citizenship and national origin. As government enforcement of anti-discrimination and other compliance-related provisions has risen significantly over the last two to three years, employers are advised to conduct regular trainings with Human Resources personnel to ensure compliant employment verification practices. Employers are reminded that it is unlawful to ask an individual for specific documentation when verifying his or her employment eligibility for I-9 purposes. Should an individual ask what documents he or she must present when completing the I-9 form, employers shouldn’t indicate a preference and instead provide the individual with a copy of the List of Acceptable Documents on the back of the I-9 form.

When hiring employees, it is important to assess whether there is technology or technical data the employee may have access to or utilize that are subject to U.S. export control restrictions. On Wednesday, April 14, 2:00 – 3:00 p.m. ET, join GT for a webinar discussion on how to identify when this could be an issue, how to minimize risk relating to employment discrimination issues, and how it affects the immigration process.

Speakers include:

Click here to register for the event.

  1. USCIS Filing Fee Increase and Premium Processing Expansion – In 2023, USCIS issued a proposed rule to increase the required filing fees for many applications. The proposed increases for employment-based immigration benefits are significant, and if the final rule takes effect, employers will incur increased expenses to file common case types such as H-1B registrations, H-1B/ L-1/ E/ TN petitions, I-140 petitions, and I-485 applications. (The final rule on USCIS’s fee schedule is expected in April 2024).

    Although a specific timeline has not yet been provided, USCIS is expected to announce further expansion of its premium processing service in 2024. USCIS continued expanding premium processing service in 2023 to include Form I-140 EB-1C multinational executive and manager classification and EB-2 National Interest Waiver classification, certain F-1 students seeking optional Practical Training (OPT) andscience, technology, engineering, and mathematics (STEM) OPT extensions, and certain applicants requesting a change of status on Form I-539 to F, M, or J status.
  2. Ongoing Focus on Immigration Compliance – In 2023, significant immigration compliance-related changes took effect. Related to Form I-9, changes included the sunset of the Department of Homeland Security’s temporary COVID-related Form I-9 flexibilities, the new mandatory Form I-9 08/01/2023 edition, and, for qualifying E-Verify employers, an alternative remote I-9 document inspection procedure.

    In an evolving landscape, more and more states mandated enrollment in E-Verify in 2023, which is operated by USCIS and largely remains a voluntary program. Similarly, in 2023, an increasing number of states have passed laws on pay transparency which can impact the U.S. Department of Labor’s PERM labor certification process. Throughout 2024, the changes introduced in 2023 and ongoing interplay between state and federal requirements will create a challenging immigration enforcement environment and will place employers at risk for non-compliance.

    The Department of Homeland Security and Department of Labor are expected to continue their focus on immigration compliance and, similarly, in 2024 the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER) may continue its enforcements, settlements, and lawsuits related to immigration-related discrimination. The post-pandemic workforce has reshaped traditional employment paradigms, making it crucial for businesses to reassess internal immigration and compliance policies, conduct regular audits to make corrections and train designated personnel, maintain required records such as public access files, and define a protocol for an unannounced government audit or site visit. In 2024, employers should remain informed about evolving immigration laws and policy changes to ensure compliance with immigration regulations.
  3. Department of Labor (DOL) Processing and Regulatory Agenda – On June 1, 2023, the Department of Labor (DOL) transitioned to a new online Permanent Labor Certification Program (PERM) application filing system and a new PERM Application Form ETA 9089.

    The DOL indicated it would not begin processing PERM applications filed through the new system until it finalized processing of cases pending in the legacy PERM portal. In 2024, the DOL will begin processing PERMs filed on the new form through the new system, which may result in an increased rate of PERM audits. As a result of the 2024 DOL transition, PERM processing times are not expected to decrease.

    The DOL’s regulatory agenda in 2024 includes a proposed rule to establish a new wage methodology to set prevailing wage rates for the H-1B, H-1B1, E-3, and PERM programs. A final prevailing wage rule had been scheduled to take effect in 2022 but was then vacated in court, and publication of the new proposed rule, first scheduled for late 2023, is now expected in June 2024.
  4. Updates Related to the H-1B Visa Program: Modernization and Domestic Visa Renewals – The Department of Homeland Security (DHS) continues to pursue a proposed rule to modernize the H-1B program. The regulation was published in the Federal Register in late October of 2023 and is followed by a 60-day public comment period. Under the rulemaking process, USCIS then considers public comments and finalizes the rule’s provisions through one or more final rules. The rule will not take effect until it advances through review, which usually takes several months. DHS indicated that it is considering separating out certain provisions, such as proposed changes to the H-1B registration, so some provisions may be finalized sooner in an effort to implement them for the upcoming FY2025 H-1B cap season beginning in the Spring of 2024.

    In early 2023, the U.S. Department of State (DOS) announced its plans to test a program that would permit visa holders to renew their visa stamps from within the United States. On December 21, 2023, the DOS published a Federal Register notice announcing that the stateside visa renewal pilot will begin on January 29, 2024, and end on April 1, 2024.
  5. Proposed 2024 Regulatory Agenda Related to Nonimmigrant Workers and Green Card (Adjustment of Status and Immigrant Visas) Process Changes – The Department of Homeland Security’s 2024 regulatory agenda reflects plans to publish a proposal in the Fall of 2024 to amend its regulations related to certain nonimmigrant workers. Proposed changes include updates to employment authorization rules for dependent spouses, increasing flexibilities for nonimmigrant workers including for those who resign or are terminated from employment, and additional updates related to modernizing Employment Authorization Documents.

    The Department of Homeland Security plans to publish a proposed rule in March 2024 to make changes to the process for adjustment of status to permanent residence. The proposed rule is anticipated to address the transfer of the underlying basis of an application to adjust status, reduce processing times and the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas.

    The U.S. Department of State’s regulatory agenda for 2023 included a final rule that would permit a waiver of the general requirement for immigrant visa applicants to appear before a consular officer to be interviewed and to execute their application in person at a U.S. Consulate abroad. Details of the rule were expected in late 2023.

    GT will continue to monitor the regulatory agenda and related developments and will publish updates on https://www.gtlaw-insidebusinessimmigration.com/ as regulations move through the rulemaking process.

About the Authors:

Courtney B. Noce is Co-Chair of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Noce represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN).

Kate Kalmykov is Co-Chair of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Kalmykov focuses her practice on business immigration and compliance. She works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel.

Miriam C. Thompson is an associate of Greenberg Traurig, LLP’s Immigration and Compliance Practice. Thompson focuses her practice on business immigration and immigration-related compliance issues, assisting employers with hiring and retaining foreign nationals in various industries and business sectors, including manufacturing, engineering, technology, medical, logistics, and academia. She has experience advising employers on all aspects of business immigration, including nonimmigrant visa categories (B, E, F-1, H-1B, J-1, L-1 A/B, O-1, TN), managing a multinational workforce, and permanent residence.

Immigration Provisions in the Upcoming Appropriations Bills

  • As Congress prepares to finalize the appropriations bills for the upcoming fiscal year, many groups are working to include immigration provisions in the legislation. These provisions could include the Afghan Adjustment Act, legislation for DACA beneficiaries and other Dreamers, EB-5 reform and corrections, and immigrant visa relief. Given the possibility of a government shutdown as a result of the appropriations bills, immigration provisions may not be included
  • The House Appropriations Committee has already passed its version of the Department of Homeland Security (DHS) appropriations bill, which includes a provision to exempt returning H-2B workers from the 66,000 cap on the total number of noncitizens who may receive an H-2B visa. The Senate Appropriations Committee is currently considering its own version of the bill, and it is expected to include similar language.
  • The House Appropriations Subcommittee that oversees Department of Labor (DOL) funding passed a bill that would continue some H-2B regulatory relief provisions. It would allow for staggered crossing for seafood workers, allow the limited use of prevailing wage surveys, provide for a maximum 10-month season, and prohibit DOL from enforcing the corresponding employment of three-quarters guarantee provisions of the current H-2B regulations.
  • The Senate Committee bill also includes report language asking the DOL to submit reports related to the semi-annual visa distribution, the economic impact of the program by state, estimated visa demand, and labor violations of H-2B and H-2A users. It also expresses support for visas set aside for workers from the Northern Triangle countries (El Salvador, Guatemala, and Honduras).

DHS Overwhelmed by Applicants for Humanitarian Parole Program

  • The Biden administration announced a new humanitarian parole program earlier this year for nationals of Cuba, Haiti, Venezuela, and Nicaragua. While the program authorizes humanitarian parole for 30,000 applicants per month, since January 2023, DHS has allegedly received more than 1.5 million applicants for the program. Customs and Border Protection (CBP) has released the number of applications processed each month for January through April 2023, as follows:

The published reports for May and June do not include numbers for this program.

  • In May 2023, CBP released a statement describing the system put in place to review and approve the large amount of applications – 50% of applications will be processed based on date of filing and 50% will be selected randomly. Many applicants have not received any notice from CBP, indicating an overwhelming backlog.
  • The humanitarian parole program is designed to help individuals fleeing violence and persecution, but the current backlog is hindering its success.

New I-9 Form and the new document inspection procedures

  • On Aug. 1, 2023, USCIS implemented updates to the Form I-9, Employment Eligibility Verification. The revised form includes a new alternative document examination procedure, allowing employers enrolled in E-Verify to review copies of identity and employment authorization documents, instead of requiring in-person document inspection and verification.
  • To utilize the new alternative document inspection process, employers enrolled in E-Verify must retain copies of all documents examined and conduct a live video interaction with the employee. Employers who used E-Verify during the COVID-19 flexibilities period can implement the new alternative procedure starting Aug. 1, 2023, to satisfy the physical document examination requirement, which must be completed by Aug. 30, 2023.
  • The revised Form I-9 introduces changes to streamline the process, reducing the form to a single-sided sheet and making it fillable on tablets and mobile devices. The “Preparer/Translator Certification” and Section 3 pertaining to Reverification and Rehire are now separate supplements, and the “Lists of Acceptable Documents” page has been updated to include some acceptable receipts.
  • These changes aim to bring greater flexibility and convenience to employers while maintaining the security and accuracy of the employment eligibility verification process. While employers can continue using the current form (edition date 10/21/19) until Oct. 31, 2023, from Nov. 1, 2023, onwards, all employers must transition to using the new Form I-9.
  • Employers should familiarize themselves with these changes and consider implementing new procedures to ensure compliance with the revised Form I-9 and the alternative document examination process.

Processing Backlogs Create Delays to the Green Card Process

  • The U.S. immigration system is facing a serious backlog in the processing of employment-based immigrant visas. This backlog is due to a number of factors, including the Department of Labor’s slow processing of PERM labor certifications and prevailing wage requests, the high volume of pending I-140 petitions at USCIS, and the limited number of EB-2 and EB-3 visas available annually.
  • As a result of this backlog, individuals starting the PERM process today can expect to wait several years before they will become eligible for consular processing or adjustment of status. For individuals from high-demand countries like India and China, the wait times are even longer.
  • This backlog is impacting businesses that rely on immigrant workers. Many businesses are unable to hire the skilled workers they need because of the long wait times for visas, leading to job loss and negative economic effects.
  • With legislation, Congress could recapture unused immigrant visas and/or eliminate derivative family members for the visa count and increase visa numbers. This would allow more individuals to immigrate to the United States and help to address the labor shortage.

IER Focuses on Employer Recruitment and I-9 Practices

The Department of Justice’s Immigrant and Employee Rights Section (IER) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. The following summarizes recent settlements with the business community. 

  • Mountain Prairie Holdings agreed to undergo training and make policy changes before hiring any more employees, be subject to departmental monitoring, and pay a civil penalty of $7,588. The company was found to have discriminated against a work-authorized asylum applicant as part of its pattern or practice of requiring certain non-U.S. citizens to show specific documents to prove their work authorization because of their citizenship status.
  • Treacy Enterprises agreed to pay a civil penalty and change its recruiting practices to avoid future discriminatory postings. The company was found to have violated the Immigration and Nationality Act’s antidiscrimination provision by requiring a lawful permanent worker to provide more documents than necessary to prove their permission to work.
  • N2 Services, Inc. agreed to pay a civil penalty, post notices informing workers of their rights, train its staff, review and revise its employment policies and training materials, and be subject to departmental monitoring for two years. The company was found to have discriminated against workers based on their citizenship status when it published a discriminatory job advertisement online that required applicants to have a temporary work authorization status called Optional Practical Training.
  • Ten employers agreed to pay civil penalties totaling $464,360 and change their recruiting practices to avoid future discriminatory postings. These employers were found to have posted job advertisements with unlawful citizenship status restrictions on a college recruiting platform.

The DOJ’s settlements with these employers are a reminder that the department is committed to investigating employers that discriminate against workers based on their citizenship status. Employers are encouraged to review their recruitment policies and advertisements to confirm that they are in compliance. 

Legislative Updates

  • Two immigration bills were introduced in Congress this week: The Dignity Act and The Essential Workers for Economic Advancement Act.
  • The Dignity Act, introduced by Reps. Maria Elvira Salazar (R-Fla) and Veronica Escobar (D-Tex), would, among other things, provide a path to citizenship for Dreamers, individuals with Temporary Protected Status, and undocumented immigrants; update the legal immigration process; and provide resources to secure U.S. borders.
  • The Essential Workers for Economic Advancement Act will be re-introduced by Reps. Lloyd Smucker (R-Pa) and Henry Cuellar (D-Tex). The bill would allow job creators to address chronic workforce shortages.

DOJ Announces Several Settlements Regarding Discriminatory Job Ads

  • DOJ’s Immigrant and Employee Rights (IER) determined that American CyberSystems Inc. violated the Immigration and Nationality Act (INA) when it recruited for two positions using advertisements that unlawfully excluded certain applicants based on their citizenship statuses.
  • One job advertisement sought only U.S. citizens and lawful permanent residents (LPRs). The company wrongfully believed it could only hire U.S. citizens and LPRs for the position because it was regulated by the International Traffic in Arms Regulation (ITAR) and Export Administration Regulations (EAR). Both regulations permit employment of U.S. nationals, refugees, and asylees. The second advertisement sought only H-1B visa holders.
  • DOJ’s IER posted this flyer to help employers ensure their ads for positions subject to ITAR and EAR still comply with anti-discrimination laws.
  • In another published settlement, IER also determined that Infosoft Solutions Inc. violated the INA when it posted six job ads that only sought workers seeking sponsorship.
  • IER also published settlement agreements with 10 companies that it found had all posted discriminatory job ads on a college recruiting platform. The companies each posted at least one job ad on the university website that excluded non-U.S. citizens.

USCIS Changes How It Will Review Applications Parole Program for Cubans, Haitians, Nicaraguans, and Venezuelans

  • The parole program has received more applications than anticipated. As of May 17, 2023, USCIS will randomly select about half of the 30,000 monthly total, regardless of filing date, from the entire pending workload of applications. It will then review the other half of the monthly total by prioritizing the oldest pending applications.
  • Under this new review system, processing times will vary and supporters should check their case status in their online account or via Case Status Online.

State Department Delays Visa Fee Increase

  • DOS is delaying the visa fee increase until June 17, 2023, because the final rule was delivered to Congress April 17, 2023, and 60 days must pass between the delivery date and final issuance.
  • As a reminder, fees for B, TN, H, L, O, E, and border crossing cards are all increasing.