The Department of Labor (DOL) announced its H-2A Transition Plan for updating its Foreign Labor Application Gateway (FLAG) system based on the preliminary injunction (known as the Kansas Order) issued by the U.S. District Court for the District of Southern Georgia. That order prevents the DOL from enforcing its new H-2A Farmworker Visa Rule against the plaintiffs in the case (two entities and 17 states) during the pendency of the litigation. The Transition Plan will be in effect as of Sept. 12, 2024.

All H-2A cases submitted on FLAG prior to 7:00 p.m. ET on Sept. 11, 2024, will be processed under the “old” regulations in effect on June 27, 2024. At 12:00 a.m. ET on Sept. 12, FLAG reopens for submissions. Cases not subject to the Kansas Order will be processed based on the new regulations in effect as of June 28, 2024. Cases subject to the Kansas Order will continue to be processed based on the old regulations. Cases initiated but not submitted by 7:00 p.m. on Sept. 11 will be deleted, but waivers of the regulatory time period will be granted for those cases.

How Will This Work?

  • Beginning on Sept. 12, the FLAG system will require the employer or employer’s authorized attorney or agent to identify whether the work to be performed will be located in one or more of the states or entities subject to the Kansas Order. If the answer is “yes,” the applicant will be directed to the job order using Form ETA-790/790A in effect as of June 27, 2024. If the answer is “no,” the applicant will be directed to the form in effect as of June 28, 2024.
  • To ensure compliance with the Kansas Order, employers should submit separate job orders and Applications for Temporary Employment Certification for work performed in states subject to the Order and work performed in states not subject to the Order.

Jackson Lewis attorneys are available to answer questions about the new process and to help prepare and file H-2A visa during the transition period.

USCIS is processing naturalization cases faster than they have in years, and the agency is managing to cut down on its naturalization backlog. Given the current average timing, eligible green card holders who applied early in the summer 2024 might be sworn in in time to vote in the upcoming November elections.

Of course, field offices vary in processing times, but USCIS stated it was effectively eliminating the net backlog of naturalization applications and reducing the median processing time from 10.5 months to as little as five months. This is a 50 percent drop in processing time since 2022, achieving the agency’s longstanding goal and significantly reducing waiting times for most individuals seeking U.S. citizenship. Naturalization has always been a target of note in the agency’s backlog reduction effort. This was achieved by increasing capacity, improving technology, and expanding staffing.   

Naturalization cases often increase ahead of elections. Voting is not the only personal benefit of citizenship. Immigrants who become U.S. citizens may also serve on juries, travel on a U.S. passport, bring family members to the U.S. more easily, apply for certain federal jobs, run for federal office, become eligible for certain federal grants, scholarships and benefits, and, importantly, have the right to remain in the U.S. that cannot be taken away. Beyond that, findings show that naturalized citizens have higher employment rates and earn between 50 and 70 percent more than noncitizens. Increasing the number of citizens also helps the economy in general. It leads to an increase in tax revenue and greater home ownership.

When President Joe Biden came into office, he issued an executive order to reduce naturalization barriers to strengthen the integration of new Americans. About 100,300 naturalization petitions were denied in FY 2023, a 10 percent drop from the 111,600 petitions denied in FY 2022. The Biden Administration also made the naturalization application shorter and, while it raised the naturalization fee, a number of discounts are available.

Eligibility requirements for naturalization include age, continuous residence, physical presence, jurisdiction, knowledge of U.S. history, civics, and English, and good moral character.

Jackson Lewis attorneys are available to assist you in determining whether you meet the requirements for citizenship and can assist in preparing and filing naturalization applications.

The U.S. Embassy in Havana has expanded visa services to include some temporary non-immigrant visas. Cuban nationals with the following approved petitions will be able to schedule visa interviews at the Embassy:

  1. H – Temporary workers or trainees
  2. J – Exchange visitors
  3. L – Intracompany transferees
  4. O – Workers with extraordinary ability or achievement
  5. P – Athletes, artists, and entertainers
  6. Q – International cultural exchange participants
  7. R – Members of a religious denomination performing religious work

This expansion does not include B-1 or B-2 visas for business or tourism travel. For those, Cubans will still have to travel to embassies or consulates in other countries.

The history of the Havana Embassy has been marked by periods of closure and reopening. An embassy first opened in Havana in 1923, but it closed in 1961 when the United States severed diplomatic relations. In 1977, it reopened as the U.S. Interests Section in Havana. In 2015, the Obama Administration restored diplomatic relations, but that was reversed by the Trump Administration in 2017 due to unexplained health incidents among the diplomatic staff (often referred to as “sonic attacks” or Havana Syndrome). Cubans were forced to undertake sometimes arduous or dangerous (and expensive) travel to other consulates in Colombia or Guyana – and many fled to Central or South America to then journey to the U.S.-Mexico border. U.S. Customs and Border Protection reported 535,037 encounters with Cubans at the border from 2021 through 2024.

In 2022, under the Biden Administration, some consular services were restored and, by 2023, the Embassy resumed immigrant visa processing for immediate family members, the family preference categories, diversity visas, and K (fiancé) visas.

Now, with the resumption of non-immigrant visa processing, most Cubans will be able to avoid applying as third-country nationals at consulates outside of Cuba. An Embassy official reported the Embassy has doubled its number of employees since 2022, but it still would need more staff to reinstate all visa services.

To schedule an interview for H, L, O, P, Q, or R visas, the applicant must submit evidence of their approved petition (Form I-797 Notice of Action) from USCIS. To apply for a J visa, applicants must submit their Form DS-2019, Certificate of Eligibility for Exchange Visitor Status. Applicants must also submit the required application, fees, a valid passport, and a current photograph.

For more information on the process, please visit the Cuban Embassy’s website.

Jackson Lewis attorneys are available to assist in filing the necessary petitions with USCIS and advising regarding consular applications.

Illinois Governor JB Pritzker has signed an amendment to the Illinois Right to Privacy in the Workplace Act that provides additional employee protections regarding employers’ use of E-Verify. The amendment’s effective date is Jan. 1, 2025, and applies to both private and public employers.

Illinois already had specific rules to ensure that E-Verify is used correctly and fairly. Illinois already:

  • Urged employers to consult the Illinois Department of Labor (IDOL) website for current information regarding the accuracy of the program
  • Encouraged employers to review and understand their legal responsibilities under E-Verify
  • Required all those who administer E-Verify to complete Computer Based Training
  • Required employers to post an E-Verify poster in the workplace in both English and Spanish
  • Required notification to an employee in writing of a receipt of a Tentative Nonconfirmation Notice (TNC) and their rights to contest the TNC
  • Made it clear that an employee could not be terminated prior to receiving a final nonconfirmation notice from the Social Security Administration or the DHS
  • Admonished employers to safeguard the information in the system

The amendment continues along the same lines with more specific requirements regarding rights and protections for workers. These include specific notice posting requirements and specific timing on notices to employees about TNCs or upcoming I-9 inspections. Additionally, under the amendment, employees may have representation in meetings regarding TNCs.

The purpose of the amendment may be to ensure employers in Illinois do not exceed federal E-Verify regulations and requirements and treat all employees respectfully by providing sufficient notice of upcoming investigations or TNCs so the employees can plan accordingly.  

Some commentators have noted, however, that the new law could be read to prohibit or at least discourage employers from using E-Verify unless required to use it by federal law.  

That interpretation is concerning. The amendment adds penalties for violations of the notice provisions that include actual damages plus costs and reasonable attorney’s fees for willful and knowing violations. Although IDOL usually attempts to resolve violations through mediation, IDOL and individual complainants can commence actions in court.

We expect IDOL to issue new guidance before the effective date.

Jackson Lewis attorneys are available to advise employers in Illinois regarding preparing for that effective date.

The Department of Labor (DOL) has decided to delay updating its Foreign Labor Application Gateway, or FLAG, case processing system to implement revised H-2A job order and application forms for the new 2024 Farmworkers Protection Final Rule until further notice. For now, H-2A job orders and applications will continue to be received and processed under the old rules.

Previously, DOL had decided to postpone enforcement of the rule until Aug. 28, 2024, due to pending litigation in which a court granted a preliminary injunction affecting 17 states and two other entities.

DOL stated on the date the rule was to go into effect that it was carefully reviewing the court order and assessing options.

DOL stated it plans to provide a revised transition schedule.

Contact a Jackson Lewis attorney with any questions about the rule or for help preparing and filing H-2A visa applications.

Seventeen states joined in a suit in June to block the Department of Labor (DOL) from enforcing its new rule providing more protections to farmworkers employed as H-2A temporary visa holders. Now, Judge Lisa Godbey Wood of the U.S. District Court for the District of Southern Georgia has granted a preliminary injunction preventing the DOL from enforcing the new rule in the plaintiff states during the pendency of the case. The rule is set to go into effect in non-plaintiff states on Aug. 29, 2024.

The H-2A program allows U.S. employers and U.S. agents to bring foreign workers to the United States to fill temporary or seasonal agricultural jobs. Unlike H-2B visas for all other temporary or seasonal workers, there is no limit to the number of H-2A visas available annually, but, like H-2B visas, they are only available to workers from eligible countries.

The new rule was issued to address abuses related to working conditions and retaliation against agricultural workers. Among the areas covered, the rule provides that H-2A employers cannot retaliate against an H-2A visa holder who engage in certain organizing and collective bargaining activities. It was set to go into effect on June 28, 2024, but the DOL postponed the effective date to Aug. 29, 2024, after the litigation was filed in Georgia.

While the court found that the new rule did not exceed the agency’s rulemaking authority under the Administrative Procedures Act, it did find that the new rule specifically violated the National Labor Relations Act (NLRA) and therefore exceeded DOL’s authority. The court held that the NLRA specifically exempts agricultural workers from protection for engaging in concerted activity, and therefore the DOL could not grant those rights. The court focused primarily on the self-advocacy and labor exploitation provisions of the rule and stated that those aspects created unconstitutional collective bargaining rights.

The preliminary injunction will stop the DOL from enforcing the new rule in:

  1. Arkansas
  2. Florida
  3. Georgia
  4. Idaho
  5. Indiana
  6. Iowa
  7. Kansas
  8. Louisiana
  9. Missouri
  10. Montana
  11. Nebraska
  12. North Dakota
  13. Oklahoma
  14. South Carolina
  15. Tennessee
  16. Texas
  17. Virginia

The injunction also includes the two other plaintiffs, the Miles Berry Farm and Georgia Fruit and Vegetable Growers Association.

Acquiring H-2A visas is a complex three-step process. It requires a labor certification approved by the DOL. Then a Form I-129, Petition for Nonimmigrant Worker, must be filed with USCIS. Finally, the foreign national must apply for the H-2A visa at a Consulate abroad. The purpose of the application is to prove that:

  • The job offer is temporary or seasonal;
  • A labor market test has established that there are not enough U.S. workers able, willing, qualified, and available for the job; and
  • Hiring the foreign nationals will not adversely affect wages and working conditions of similarly situated U.S. workers.

Jackson Lewis attorneys are available to provide advice regarding the preliminary injunction and help prepare and file H-2A visa applications.

E-Verify will enhance security for account logins later this year. The system will require multi-factor (or two-step) authentication, meaning that, in addition to a password, users may need to enter a code sent to their email or phone. This can help prevent unauthorized account access in case of a compromised password – particularly due to human errors such as misplaced passwords or lost devices. Most people are familiar with multi-factor authentication as many companies and organizations have already adopted it to strengthen security.

Earlier this summer, E-Verify changed its URL to everify.uscis.gov (without a dash). Users should make sure to change bookmarks and update any internal materials to avoid encountering error notices.

Jackson Lewis attorneys will provide updates on E-Verify as information becomes available. If you have any questions about using or signing up to use E-Verify, Jackson Lewis attorneys are available to advise you.

President Joe Biden on July 26, 2024, granted Deferred Enforced Departure (DED) for certain Lebanese nationals for 18 months due to the humanitarian conditions in southern Lebanon created by the ongoing conflict between Hezbollah and Israel. To be eligible, the Lebanese national must have been in the United States as of July 26, 2024, and not voluntarily returned to Lebanon after July 26, 2024. They must also meet the general admissibility requirements.

This presidential action reportedly will affect approximately 12,000 Lebanese nationals who are currently in the United States, including 1,700 students.

President Biden also directed the Department of Homeland Security to take the steps necessary to authorize employment for those eligible for Lebanese DED and to consider suspending regulatory requirements for Lebanese F-1 students who may be suffering from economic hardship due to the conditions in their home country.

It is in the president’s discretion to authorize DED as part of his constitutional power to conduct foreign relations. DED is not a specific immigration status; however, individuals covered by DED are not subject to removal from the United States for the designated period of time.

Instructions on how to apply for employment authorization and possible travel authorization will be in the Federal Register.

Lebanon joins the list of countries that have been designated for DED: Liberia, Hong Kong, and Palestine.

Jackson Lewis attorneys are available to assist and advise about DED, temporary protected status, or TPS, and other humanitarian parole processes.

USCIS has updated the Aug. 1, 2023, edition of its Form I-9, Employment Eligibility Verification, solely to extend the expiration date from July 31, 2026, to May 31, 2027.

What should employers do?

  • Employers must be using the Aug. 1, 2023, edition of the form.
  • The Aug. 1, 2023, edition now has two different versions with two different expiration dates: July 31, 2026 or May 31, 2027 – either of which can be used until its expiration date.
  • The form currently available for download from USCIS has the later May 31, 2027, expiration.

While either form may be used until its expiration date, switching over to the new form sooner rather than later is encouraged. USCIS is particularly reminding employers who use electronic Form I-9 systems to update to the new version as soon as possible to ensure the new form is in use by July 31, 2026.

Jackson Lewis attorneys are available to assist with any questions regarding the Form I-9 employment verification process.

Starting on Aug. 1, 2024, Customs and Border Protection (CBP) is simplifying its regulations regarding the entry of dogs into the United States.

CBP still wants to be sure that rabies does not “enter” the United States because the entrance of just one dog with the disease can cost hundreds of thousands of dollars for the necessary public health investigations and post-exposure treatments. But the agency has decided that it can make things easier – especially for those who are bringing dogs into the United States hat have been only in low-risk or rabies-free countries during the six-month period prior to their entry.

For those “low-risk” dogs, all that will be required is that the individual bringing in the dog fill out the CDC Dog Import Form – one form for each dog. The form is free and short. It requires some identification information about the individual transporting the dog. The person accompanying the dog may be the dog owner, the shipper, a “flight parent,” or anyone else bringing the dog to the United States and the dog may be coming in as a personal pet, for commercial purposes, as a service animal, as a government-owned working dog, or for education, exhibition, or research. The form also requires information about the dog, including breed, birth month and year, and markings. After submission, the individual will receive a receipt that will be good for multiple entries over a six-month period – as long as the dog does not spend any of that time in a high-risk rabies country. While the form can be filled out on the day of travel (and should only take minutes to process), it is recommended that it be done before to ensure the receipt is received prior to boarding.

In addition to the CDC form, to be eligible for admission, the dog must be at least six months old, appear healthy upon arrival, and have a microchip that can be detected with a universal scanner for easy identification. These dogs can enter the United States at any air, land or seaport of entry.

After Aug. 1, 2024, if a dog has been in a high-risk country, there are additional requirements including an officially signed rabies vaccination certificate, the dog’s microchip number, and a photograph of the dog. If the dog has been in a high-risk country and was not vaccinated in the United States, there are somewhat different requirements. The dog may be required to enter the United States only at airports that have CDC examination facilities.

For some additional explanations regarding issues such as dogs transiting through the United States and grace periods, please see the CDC’s Frequently Asked Questions About Dog Importations. Some dog importers and enthusiasts are not happy with the new regulations especially with regard to the age of dogs that can be brought to the United States.

For more guidance about travelling with dogs, please reach out to your Jackson Lewis attorney.