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.

The Department of Homeland Security (DHS) designated Lebanon for Temporary Protected Status (TPS) for 18 months due to the conditions in that country caused by the conflict across the Israeli-Lebanese border. The Oct. 17, 2024, designation will apply to otherwise eligible individuals who have continuously resided in the United States since Oct. 16, 2024.

Instructions on how to apply for TPS and employment authorization will be published in the Federal Register soon.

This TPS designation comes on top of the Deferred Enforced Departure (DED) status that was granted to Lebanese nationals on July 26, 2024, for 18 months. Those individuals had to have been in the United States as of July 26, 2024. Individuals who have DED status will be able to find instructions on how to apply for employment authorization through Jan. 25, 2026, in the Federal Register. The TPS designation will continue beyond Jan. 25, 2026 – when the current DED will expire, if not extended.

DHS has also published a Special Student Relief Notice for F-1 nonimmigrant students from Lebanon, which will allow them to apply to work for more hours than normally allowed and still maintain their student status.

Approximately 11,000 Lebanese nationals probably will be eligible for DED and TPS based upon the DHS actions. DHS also estimates that 1,740 students will be eligible for the special relief.

Jackson Lewis attorneys are available to assist with employment authorization and TPS applications and will provide more information on Lebanese TPS as it becomes available.

U.S. law has long provided a border search exception to the Fourth Amendment warrant or probable cause requirement, allowing federal agents to search people, and their electronic devices, at border crossings without a warrant or probable cause. The scope of the exception may be narrowing under increased court scrutiny as modern cell phones provide what the Court called an “intimate window into a person’s life.”

The government has long contended that border agents need to be able to conduct warrantless searches of cell phones for security purposes. In United States v. Sultanov, a New York federal court in the Eastern District of New York ruled that border agents must obtain a warrant based on probable cause before conducting searches of electronic devices at the border. The court ruled that searches of cell phones or other electronic devices are “nonroutine,” bringing them outside the border search exception. In its ruling, the court made the following distinction between routine searches and cell phone searches:

It is one thing for courts to give border officials the authority to briefly detain and question air travelers and search their physical belongings based on something more than a “hunch” but “obviously less than is necessary for probable cause.” But it is an entirely different matter for courts to exempt those agents from the Fourth Amendment’s probable cause and warrant requirements in the vastly more intrusive context of a cell phone search, which can reveal “[t]he sum of an individual’s private life.”

(Internal citations omitted.)

This ruling affects only the Eastern District of New York, which is one of the busiest transportation hubs in the United States – since it includes John F. Kennedy International Airport (JFK). This does not mean that U.S. citizens and international travelers should not be careful when traveling internationally with electronic devices that contain confidential information – even if you plan to fly into JFK.

Civil liberties groups are applauding the Sultanov holding, but due to its limited applicability, and depending on the type of information stored on your cell phone, it may still be best practice to:

  • Consider traveling with a temporary, inexpensive cell phone that does not contain access to sensitive or confidential information; and
  • Store sensitive information in the cloud, only retrieving it when you need it.

According to Customs and Border Protection data, more than 41,700 device searches were conducted in 2023.

The ruling comes in a criminal case against Kurbonali Sultanov, a naturalized U.S. citizen, who sought to suppress evidence obtained from searches of his phones at JFK. The border officers conducted a manual search of his phone and ultimately received a warrant to conduct a forensic search. Although the court held the initial search was unconstitutional, the judge ultimately denied the motion to suppress, concluding the officers had acted in good faith.

The court held the warrantless search violated both the First and Fourth Amendments. It held the search violated the First Amendment because allowing such searches could chill freedom of speech, freedom of association, and, particularly, freedom of the press. It held the search violated the Fourth Amendment because such a search at the border is an unjustified intrusion into a traveler’s private expressions and personal endeavors.

Jackson Lewis attorneys are available to assist with any questions regarding international travel, including issues around warrantless searches.

The Online 2026 Diversity Visa (DV) Lottery for green cards is open until noon ET on Nov. 5, 2024.

Eligibility requirements, application instructions, and frequently asked questions are on the DV Lottery website.

Individuals from countries where more than 50,000 nationals have migrated to the United States in the past five years are ineligible to apply. Except for the addition of Cuba, the “ineligible” list is the same as last year’s.

A few things to think about if you are considering the DV Lottery:

  • Eligible individuals with other types of green card processes pending are still eligible for the DV Lottery
  • Individuals from an ineligible country may be eligible based upon their spouse’s eligibility
  • Submission of more than one registration per person will result in disqualification

Jackson Lewis attorneys are available to assist in determining eligibility and preparing DV Lottery applications.

In good news, the State Department has announced the roll-out of its new online passport renewal system. Eligible individuals can renew their 10-year passports online without having to mail in any documentation.

Be sure to plan ahead if you are using the online service because only routine service is available – no expedited processing.

Although applicants will not be required to turn in their “old” passport, that passport will be cancelled after the renewal application is submitted and will no longer be valid for international travel.

Eligibility requirements for online processing:

  • The old passport is a 10-year passport, and the applicant is at least 25 years of age;
  • The old passport was issued between 2009 and 2015, or more than 9 years but less than 15 years from the date the new application is submitted;
  • There is no request for change of name, gender, or place of date of birth;
  • The applicant is not travelling for at least 8 weeks from the application submission date;
  • The applicant is seeking a regular (tourist) passport, not a special issuance passport (such as diplomatic, official, or service [gray cover] passports);
  • The applicant lives in the United States, either in a state or territory (passports cannot be renewed online from a foreign country or using Army Post Office [APO] or Fleet Post Office [FPO]); and
  • The applicant is in possession of their current passport and it is not damaged or mutilated and it has not been reported as lost or stolen.

To renew online, the applicant must sign in or create an account on Home | MyTravelGov (state.gov) and follow the step-by-step directions. The applicant will have to:

  • Provide information about the passport they want to renew;
  • Choose whether to apply for a passport book or passport card or both;
  • Enter proposed travel dates;
  • Upload a digital photo;
  • “Sign” the application; and
  • Make the required payment by credit or debit card

Applicants can enroll to receive email updates regarding their applications.

Those not eligible to apply online may renew by mail if they meet the eligibility criteria. Those not eligible to renew by mail (such as children) must renew in person.

The State Department estimates that 5 million people will be eligible to use this new online service annually. Last year, a record 24 million passports were issued. The State Department hopes to continue to expand the online service to further optimize the passport renewal process.

If you have questions about U.S. passport renewal applications or about any international travel, Jackson Lewis attorneys are available to assist.

The Schedule A list of occupations that do not require the employer to conduct a labor market test (a PERM labor certification) as part of a green card application process has not been updated in at least 20 years. Almost a year ago, in December 2023, the Department of Labor (DOL) issued a Request for Information asking for public comment on how to possibly expand the Schedule A list. More than 1,000 comments were submitted by the close of the comment period on May 13, 2024. To date, there still has been no response from the DOL.

The government has already concluded that there are insufficient numbers of qualified U.S. workers available to fill openings in the Schedule A occupations, which have until now been limited to physical therapists, professional nurses, and immigrants of exceptional ability in the sciences or arts. This list is clearly outdated given current labor shortages, especially in STEM fields. The STEM employment gap is growing, particularly in technology and engineering. Indeed, the top 20 occupations where companies have been sponsoring foreign nationals for green cards through the typical long and complex PERM process include software developers, engineers, computer systems analysts, and statisticians.

While new Schedule A occupations could be suggested to the DOL, the agency’s call for input was mostly focused on methodology. For instance:

  • What sources of data should be used to establish unmet need?
  • How can one determine the severity of shortages in various fields?

Many employers are anxiously awaiting the DOL’s response to comments. The U.S. Chamber of Commerce has particularly noted:

  • The importance of updating the Schedule A to reflect current economic conditions;
  • The need for periodical updating of the list; and
  • The importance of updating the list to help businesses, the economy, and American workers.

To cut down on the current and expected labor shortages in STEM occupations, employers can consider geographic location, training, and developing a talent pipeline. Another, faster method to bridge the labor gap would be through employment of individuals from countries that are producing more workers with the necessary skills. Being able to bring those workers to the United States and sponsor them for green cards is particularly important for attracting and maintaining those workers.

Expanding the Schedule A list would be an efficient way to get this done while still focusing only on occupations where there clearly are not enough U.S. workers available to fill those jobs.

Jackson Lewis attorneys will continue to monitor the situation and report any response from the DOL as soon as it occurs.