On Nov. 25, 2024, the U.S. District Court for the Southern District of Mississippi blocked enforcement of the Department of Labor (DOL) rule granting organizing protections to farmworkers on temporary H-2A visas by entering a nationwide injunction.

The decision follows the August 26 ruling by a federal court in Georgia blocking enforcement of the DOL rule only as to 17 states. A separate court ruling in Kentucky blocked enforcement of the rule in four states and members of several associations. The recent ruling extends this patchwork nationwide.

The DOL has not yet responded regarding the injunction.

Approximately nine million U.S. citizens live or work abroad, and some want to renounce their U.S. citizenship. Many do so with regret but renounce to avoid various financial issues. Others consider themselves “accidental Americans” who maintain no connection with the United States.

While the reasons for renouncing U.S. citizenship vary, issues include:

  • The United States levies taxes on those who meet the established thresholds based on citizenship regardless of where they live and regardless of whether they maintain strong ties to the United States.
  • The 2010 Foreign Account Tax Compliance Act (FATCA) requires foreign banks to report accounts held by U.S. citizens to the IRS, leading some foreign banks to eschew doing business with U.S. citizens – including giving loans or mortgages.
  • Under FATCA and the long-standing requirement for reporting foreign financial accounts, Report of Foreign Bank and Financial Accounts (FBAR), certain U.S. citizens must report financial assets that are held abroad to the IRS or risk civil or criminal penalties.
  • Simply preparing all the necessary filings can be costly.
  • U.S. citizens living abroad can be subject to capital gains tax on their primary residence because the U.S. government considers the home foreign property.

The cost has led former U.S. citizens who have renounced their U.S. citizenship to file a class action lawsuit to recover almost $1,900 each in fees they paid for the renunciation. Until 2010, there was no fee involved. In 2010, a $450 fee was imposed. Four years later, in 2014, the fee jumped to $2,350. The suit alleges that the fee violates the Administrative Procedures Act because it is arbitrary and capricious. The plaintiffs allege the fees go well beyond the actual cost to the Department of State to process the renunciations, which the State Department contests. They also claim the fee violates their constitutional right to expatriate. If the case succeeds, some 30,000 former U.S. citizens who renounced their U.S. citizenship could be eligible for refunds. In the meantime, the State Department is considering reducing the fee back to $450.

The case was filed in the U.S. District Court for the District of Columbia. While the judge questioned whether the former U.S. citizens had standing to sue, he ultimately held the case was in the wrong forum and had to be brought in the Court of Federal Claims.

The decision to renounce U.S. citizenship comes with pros and cons that can vary person to person. It is a complex decision that requires careful consideration of the legal, financial, and even emotional implications. It is crucial to seek professional tax and immigration advice.

In October, DHS announced that Lebanese nationals would be eligible for Temporary Protected Status (TPS). On Nov. 27, 2024, that became official. TPS has been granted for 18 months, from Nov. 27, 2024, through May 27, 2026.

Individuals who are otherwise eligible must have been residing in the United States since Oct. 16, 2024, and be physically present in the United States since Nov. 27, 2024.

Applications should be made during the registration period, which runs from Nov. 27, 2024 through May 27, 2026. Those who apply may also apply for employment and travel authorization. For full details, see the Federal Register.

Canada is reducing the number of permanent and temporary residents it will admit over the next couple of years over concerns about housing prices as well as stress on infrastructure and social services due in part to the high levels of immigration.

This may impact U.S. companies and U.S. institutions of higher education most.

For U.S. companies, this change has an upside and a downside. Those that cannot obtain enough H-1B visas to hire the number of foreign nationals they require will no longer have the convenient option of sending employees to Canada to work remotely. On the other hand, foreign nationals who have planned to leave the United States for better immigration prospects in Canada, may now want to try to stay in the United States. If they do, U.S. companies will have a larger talent pool to draw from, and this may cause them to expand their visa sponsorship policies, and if the Trump Administration doesn’t take steps to narrow the eligibility for H-1B visas, experience higher retention rates and less upward pressure on salaries.

As for institutions of higher education in the United States, international students who were deciding to go to Canada instead of U.S. colleges and graduate schools, due in part to the belief that post-graduation job prospects might be better there, may be rethinking their plans. Tuition from foreign students has long been essential to the budgets of colleges and universities and the number of foreign nationals coming to the United States for school has been declining. If Canada is not an option, then more applications from foreign nationals may go to U.S. schools.

For more than a decade, foreign nationals have found it difficult to obtain H-1B visas and “green cards” in the U.S. due to the limited number of slots available and the restrictive policies of the first Trump Administration. Throughout this time,  highly skilled foreign nationals and international students were choosing to move to Canada from the United States on their own to obtain work authorization and permanent residence more quickly. International students who couldn’t obtain H-1B sponsorship due to unsuccessful H-1B lottery registrations have often left for Canada. This has been a boon to the Canadian economy. Now, the tide has turned, and this may be advantageous for the United States economy if the high-skilled workers and international students choose the United States over other countries.

Jackson Lewis attorneys are available to assist in developing strategies to deal with predicted changes in U.S. immigration for 2025.

Legal standing to sue is central to various state challenges to immigration policies. A party can only bring a lawsuit if they can demonstrate sufficient connection and harm from the challenged policy. The U.S. Supreme Court may soon address whether indirect economic harm is sufficient to confer standing, particularly in the context of the DACA (Deferred Action for Childhood Arrivals) program. The program grants temporary protection from deportation and a two-year work permit for some undocumented immigrants who came to the United States under the age of 16.

In 2018, Texas and seven other states challenged the validity and constitutionality of DACA, using economic issues to establish standing. Texas won at the district court level, and the case has been moving through various stages and appeals. Meanwhile, DHS has been permitted to extend DACA for individuals who already have it, but it cannot grant any new initial applications based on the court’s ruling.

Following the district court’s initial decision, the Biden Administration aimed to strengthen DACA in accordance with the court’s ruling by making it the subject of a new final rule through a notice-and-comment process. However, the new rule was challenged and ended back in the district court. The court ruled against DACA once more. The case was appealed to the U.S. Court of Appeals for the Fifth Circuit. Almost six years after the initial challenge, in early October 2024, the Fifth Circuit heard oral argument.

During oral argument, the three-judge panel focused on the standing issue. Joined by other Republican-led states, Texas argued that DACA imposes greater costs on them due to of the number of immigrants that are drawn to their states, thus establishing standing.  In response, 21 Democratic-led states joined in the case in support of DACA. Led by New Jersey, they argued that DACA recipients are directly contributing to the economies of their states and therefore their states have standing because they would be harmed if DACA were eliminated. This case will likely make its way to the U.S. Supreme Court once the Fifth Circuit rules on standing.

Currently, more than 535,000 people have DACA protection. Whether their status remains stable may ultimately depend upon congressional action.

Jackson Lewis attorneys will continue to follow this matter and provide updates as they become available.

An amendment to the Illinois Right to Privacy in the Workplace Act going into effect on Jan. 1, 2025, imposes many new obligations on employers regarding the use of E-Verify – some that go beyond federal E-Verify requirements. The Illinois Department of Labor (IDOL) has published guidance on the law that also clarifies that the law does not ban the use of E-Verify in Illinois. The new law includes strict deadlines for employer notifications and attestations, among other requirements.

In addition to clarifying that E-Verify can be used in Illinois, the new guidance:

  • Urges employers using E-Verify to familiarize themselves with information on the IDOL website about the accuracy of E-Verify;
  • Prohibits misuse of E-Verify, including for pre-screening;
  • Encourages employers to review and understand their legal responsibilities regarding posting and notice requirements;
  • Reminds employers that employees may file complaints for alleged violations with IDOL; and
  • Explains that any adverse action against an employee or applicant who files a complaint under the Right to Privacy Act is prohibited.

Illinois employers will violate state law by:

  • Failing to display E-Verify notices supplied by the federal and Illinois state governments;
  • Failing to have all employees who use the system participate in the required computer-based training;
  • Failing to prevent employees from circumventing the training requirement;
  • Misusing E-Verify in any way including using the system for pre-screening or screening current employees;
  • Failing to safeguard the information in the system and preventing unauthorized access; and
  • Failing to follow the notification and attestation requirements in the law.

The law imposes on employers notification and attestation requirements that are particularly detailed.

Here are just some examples:

  • Upon initial enrollment in E-Verify or within 30 days of the effective date of the amendment (Jan. 1, 2025), the employer must file an attestation that they have received all the training materials and that they will do the training, post the required notices, and retain all certifications of completion of training for possible inspection.
  • If the employer contends there is a discrepancy in the employment verification documents provided by an employee, the employer must explain the specific deficiency to the employee, provide the employee with instructions as to how to correct the deficiency, explain that the employee has a right to representation, and, upon request, provide the original document that provides the basis for the deficiency within 7 business days.
  • When an employer receives a notification of a discrepancy from a state or federal agency:
    • Employer cannot take any adverse action including re-verification based on the notification.
    • Employer must provide notification to the employee not more than 5 business days after receipt of notification.
    • Employer must provide an explanation of discrepancy, time period to contest, and provide the original notice within 7 business days.
    • Employer must provide notification to employee’s representative within same time frame.
    • Notification should be by hand if possible, but if not possible, notification must be by mail and email.
  • When an employer receives notice of an upcoming inspection by an agency of I-9 forms or other related documents:
    • Employer must provide notice to all employees in all relevant languages within 72 hours of receipt of the notice.
    • Employer must also provide written notice to employees’ representatives, when applicable.
    • Notice should include details regarding the conducting agency, the date the notice was received, the nature of the inspection and a copy of the notice. (IDOL is expected to prepare a template for this notification.)
  • If during an inspection, a problem is uncovered about a specific employee:
    • Employer must provide written notice to the employee and employee’s representative within 5 business days.
    • Notice should be provided in person if possible or by mail and email.
    • Notice should include a full explanation of what was found, the time period for the employee to notify the employer if they plan to contest the finding, the time and date of any upcoming meetings on the topic, and the employee’s right to representation.
    • If the employee contests the determination, the employer must notify the employee within 72 hours after receipt of a final determination and provide the original notice within 7 business days.

Jackson Lewis attorneys are available to advise employers and provide strategies for reviewing or auditing their I-9 and E-Verify procedures to prepare for inspections regarding use of E-Verify in Illinois and in other states.

In January 2025, the settlement agreement that returned USCIS to its practice of “bundling” adjudication of extensions of stay and applications for employment authorization documents (EADs) for dependent spouses of H-1B and L-1 visa holders will expire. Without that bundling policy, some dependents and their employers could experience lengthy processing times and possible gaps in employment authorization.

Bundling here means that USCIS would adjudicate H-4 and L-2 dependents’ requests for extensions of stay and EADs concurrently with the principal’s H or L extension. And, if the principal’s case is premium processed, the rest of the family’s cases would generally receive similar treatment.

Other USCIS policies that would still be in effect could help overcome gap issues for dependents who only need employment authorization and have valid status:

  • In 2022, USCIS clarified that spouses of L and E foreign nationals have work authorization incident to their status. They can work without applying for EADs if their status does not need to be renewed.
  • In April 2024, USCIS increased the automatic extension of status from 180 days to 540 days for applicants who timely file EAD renewal applications. Those in H-4 and L-2 status who need an EAD must have a still valid I-94 to be eligible for automatic extension.

Employers should think about the potential impact of the loss of the bundling policy in January 2025 and work with immigration counsel to develop a strategy:

  1. Consider if any employees will need to renew H-4 or L-2 status;
  2. Inform affected employees about the possibility of upcoming changes and provide guidance on how to navigate the new processes; and
  3. Develop contingency plans to address potential employment disruptions. This may include identifying alternative work arrangements or temporary staffing solutions to mitigate the impact on business operations.

If you have any questions about H-4 and L-2 processing, please reach out to your Jackson Lewis attorney.

The Biden Administration is being urged to finalize some business immigration issues before Jan. 20, 2025, when the next presidential administration takes office, including:

  • Surge resources: Democratic lawmakers asked USCIS to “surge” resources to eliminate the backlog of employment authorization applications (for new arrivals and other non-citizens) using the $34 million that had been set aside for discharging backlogs with new technologies, staffing increases, and greater use of worker overtime.

USCIS already instituted the parts of the rule that changed the H-1B lottery to make it make it more difficult to “game” the system.

Jackson Lewis attorneys will provide updates as they become available.

As an employer, it’s important to support your foreign national employees, especially when it comes to navigating the complexities of various U.S. laws. One such process is obtaining a state driver’s license, as the requirements can differ significantly from state to state.

Key Considerations for Employers

  1. Duration of Stay: The length of the foreign national’s stay in the United States is a critical factor. If they are in the United States for a short-term assignment or as a business visitor, they will not need a state driver’s license. However, if their stay extends beyond a few months (such as on a work visa), it’s generally advisable to obtain a state driver’s license.
  2. State-Specific Regulations: Each state has its own set of rules regarding driver’s licenses for foreign nationals. Employers should familiarize themselves with the regulations in the state where their employees will be residing. This information can typically be found on the state’s Department of Motor Vehicles (DMV) website.
  3. International Driving Permit (IDP): For short-term stays, an IDP can be a valuable document. It translates the foreign driver’s license into English and is recognized in many states. However, an IDP is not a substitute for a state driver’s license if the foreign national becomes a resident or stays for a longer period.

Steps to Obtain a State Driver’s License

Give your foreign national employees who have been transferred from abroad some guidance.

  1. Research State Requirements: Encourage them to visit the DMV website of the state where they will be residing for information specific to non-U.S. citizens and the required documentation. How long a foreign national can drive with just a valid foreign license varies, and some states may have reciprocity agreements with foreign countries.
  2. Gather Necessary Documents: Typically, foreign nationals will need to provide proof of identity, residency, and legal presence in the United States. This may include their passport, visa, I-94 form, and proof of address (such as utility bills).
  3. Schedule an Appointment: Many states require appointments for driver’s license applications. It’s advisable to schedule this as soon as possible to avoid delays.
  4. Pass Required Tests: Foreign nationals may need to pass a written knowledge test, a vision test, and a road test. Some states may waive certain tests if the applicant holds a valid driver’s license from their home country.
  5. Pay Fees: These fees can vary by state. Consider whether your policies regarding foreign workers, especially those transferred from abroad, include paying driver’s license fees.

Examples of Various Timetables

  1. New York: Foreign nationals residing in New York must obtain a state driver’s license within 30 days of establishing residency, that is living in New York with the intent of making it your fixed or permanent abode. Someone who maintains an abode in New York for at least 90 days is presumed to have established residence.
  2. Florida: Florida allows foreign nationals to use their valid foreign driver’s license for up to 30 days after establishing residency.
  3. Illinois: Illinois allows foreign nationals to use their valid foreign driver’s license for up to 90 days or 30 days after establishing residence.
  4. Massachusetts: Foreign nationals must obtain a Massachusetts license once they establish residency but may otherwise use a valid foreign license for up to one year.

For any questions regarding driver’s licenses and immigration, please reach out to your Jackson Lewis attorney.

Americans traveling to the UK as tourists or business visitors are generally visa-exempt. Starting on Jan. 8, 2025, visa-exempt Americans traveling to the UK will need to use the new Electronic Travel Authorisation (ETA) scheme prior to travel. Americans will be able to apply for ETA starting on Nov. 27, 2024.

Like the U.S. ESTA (Electronic System for Travel Authorization), ETAs are digitally linked to the traveler’s passport, allowing smoother and more secure immigration processing.

Applying for an ETA costs ten pounds. The ETA expires either two years after issuance or when the individual’s passport expires – whichever is earlier. If an individual obtains a new passport, they must apply for new ETA.

 The ETA allows:

  • Multiple entries
  • Stays for no longer than six months

The ETA is being rolled out in phases. It is already in effect for nationals from the Gulf States. On Jan. 8, 2025, approximately 50 other countries, including the United States, will be added to the list. ETA will be rolled out for European countries on April 2, 2025.

The application is online and through the UK ETA app. Every individual who is traveling will need a separate ETA application. It is best to apply early, although applications are usually processed within three working days.

The similar ETIAS program for travel to the European Union has been delayed, but it is expected to go into effect sometime in 2025.

Jackson Lewis attorneys are available to assist and advise you regarding travel abroad and whether a visa may be required.