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.

Just as people were starting to lose hope, USCIS announced that it will soon hold a second round of selections for the FY 2025 H-1B cap. USCIS will randomly select additional registrations for unique beneficiaries from the previously submitted registrations.

There will not be a separate selection process for the master’s cap because a sufficient number of petitions were received to fill that allocation. Individuals who were eligible for the master’s cap but were not selected in the first round will be included in the second round of selections along with those eligible for the regular cap.

Selected registrations will be posted on the USCIS online accounts and, as before, will include the selection notice with details of where and when to file.

USCIS received approximately 440,000 registrations from unique beneficiaries this year and selected about 114,000 to meet the 85,000 cap. We have no figures yet on how many new registrations will be selected.

Jackson Lewis attorneys will provide updates as they become available.

The Department of Homeland Security announced that Temporary Protected Status (TPS) for Somalia will be extended and redesignated for 18 months from Sept. 18, 2024, to March 17, 2026.

The extension and redesignation respond in part to the continuing armed conflict that exposes those in Somalia to abuse, displacement, food insecurity, and disease. People in Somalia are also impacted by severe climate problems, including flood damage and resulting deteriorating infrastructure.

Somalians eligible for extensions must re-register and apply to extend their Employment Authorization Documents (EADs) during the 60-day period beginning July 22, 2024, and ending Sept. 20, 2024. By doing so, those individuals will be entitled to an automatic extension of their EADs until Sept. 17, 2025, if their current TPS-based EADs expire on Sept. 17, 2024, or March 17, 2023. Failure to timely apply could result in a loss of status.

Somalians eligible to make initial applications for TPS under the redesignation must have continuously resided in the United States since July 12, 2024. The redesignation period will run until March 17, 2026.

Detailed instructions on how to apply for extensions or initial applications can be found in the Federal Register. Students from Somalia will also be entitled to work authorization and a reduction in course load based on a showing of economic hardship.

Please call your Jackson Lewis attorney or reach out to the Jackson Lewis Immigration Practice Group at TPS@Jacksonlewis.com if you need assistance with work authorization, the employment verification process, or strategy options.

As immigration advocates make the case for more immigration to the United States, they tend to focus on the ways immigrants participate in our consumer economy. When highly skilled immigrants come to the United States on employment-based work visas, they contribute to the economy by buying goods, taking out mortgages, and paying taxes. They also contribute by being entrepreneurs, creating jobs on their own, and creating jobs in existing businesses through the new skills they bring. In addition, they become important first responders or contribute by performing jobs that many U.S. workers do not undertake in agriculture, food services, hospitality, and construction. While some of these workers may impact the economy as a result of their use of public services — such as schools — eventually, those workers and their children become skilled members of our society who contribute much more to the economy than the initial costs to integrate them.

Professor Zeke Hernandez, of Wharton Business School, has written a book entitled: The Truth About Immigration: Why Successful Societies Welcome Newcomers, which was highlighted in an article by Trey Popp in The Pennsylvania Gazette (Zeke Hernandez and the Business Case for Immigration). Hernandez explored new and additional ways that immigrants contribute to our economy. He found that immigrants can be “magnets for investment” across borders. He used geographic data to trace and compare immigrant settlement patterns with locations where foreign corporations established U.S. operations, uncovering some interesting results.

For instance, he tells the story of a fast-food chain from Guatemala: Pollo Campero. Selling fried chicken, Pollo Campero started as a food cart and quickly expanded. During its expansion, Guatemalans also were immigrating to the United States to avoid civil war and civil strife. Even as this was happening, Pollo Campero was opening stores in Central American airports where immigrants would purchase large quantities of the chicken and bring them to the United States to share with friends and family. Eventually Pollo Campero decided to open a store in Los Angeles where there was a large Guatemalan population. Soon, they decided to franchise. The first franchisers were Hispanic but as the brand grew, the franchiser population broadened. Hernandez notes that several thousand jobs have been created without offering any tax subsidiaries or other incentives. All that was needed was the nexus of immigrants from Guatemala.

His examples go beyond food. Hernandez presents other studies including one about a German micro-chip manufacturer locating in an area of Pennsylvania where German pioneers had settled in the early 19th century and Mexican food factories in another Pennsylvania community that experienced an influx of Mexican immigrants. These companies opened operations in the United States in places where they found a particular “community of trusted customers and employees.”

What is highlighted above is just a part of the book that has other interesting insights about immigration. One fundamental and overarching thesis is that immigration is good for the United States, not just good for the immigrant. It is good in ways that we may not have recognized previously.