Employers that sponsor foreign nationals for green cards using PERM Labor Certification have been watching as a growing number of states and localities require salary transparency in job postings. California soon may join that list.

If the amended version of California’s SB-1162, Employment: Salaries and Wages, is signed by Governor Gavin Newsom, California employers with at least 15 employees (on the company’s payroll – full-time or part-time) will be required to include the pay scale for any position in any job posting. This includes advertisements that are posted by third parties. The California Labor Commissioner will have the authority to investigate any complaints alleging violations and to order civil penalties ranging from $100 to $10,000 per violation, depending upon the circumstances. First violations may be forgiven if the employer can demonstrate that all job postings for open positions have been updated to include the pay scale. The amendment, which focuses on updated pay data reports and updated disclosure requirements (but also includes the new job posting requirement), would become effective January 1, 2023, if signed by the Governor.

Unlike wage transparency laws in other localities, the California law does not specify:

  • Do all 15 employees need to be working in California?
  • Does the 15-employee count include subsidiaries and affiliates?
  • Does the law include postings for jobs that are not located in California?
  • Does the law include remote jobs that could be performed in California?

If the bill is signed, California will likely provide additional guidance, as it did when the initial reporting requirements went into effect.

If the amended version is signed, California will join Colorado and Washington State, as well as localities in the New York area (including New York City, Westchester County, Ithaca, and Jersey City, New Jersey) in requiring salary ranges in job postings. While waiting for Governor Newsom’s decision, employers are also waiting to see if Governor Kathy Hochul will sign a similar law for New York State.

If you have any questions about how these laws affect your PERM recruitment obligations, please reach out to your Jackson Lewis attorney.

President Joe Biden extended Deferral of Enforced Departure (DED) and employment authorization for Liberians from June 30, 2022 until June 30, 2024. On September 6, 2024, the Department of Homeland Security (DHS) published instructions regarding that implementation in the Federal Register.

Those who are eligible for the extension are Liberians who:

  • Are present in the United States and have been under a grant of DED since June 30, 2022; or
  • Have continuously resided in the United States since May 20, 2017.

Eligible Liberians who do not have Employment Authorization Documents (EADs) may apply.  Those who already have EADs with the following expiration dates will have their work authorization automatically extended until June 30, 2024, and do not need to reapply:

  • March 30, 2020
  • January 10, 2021
  • June 30, 2022

Eligible Liberians may also apply for travel authorization. DHS warns that those who leave the United States without travel authorization may lose their DED eligibility and may not be able to return to the United States.

Employers completing or updating Form I-9, Employment Eligibility Verification, may refer to the Liberia DED page, which provides confirmation that employees whose EADs have an expiration date of March 30, 2020, January 10, 2021, or June 30, 2022, and state A-11 under the Category heading, are automatically extended through June 30, 2024. After June 30, 2024, employers will be required to reverify the employees’ work authorization on Form I-9.

If you need assistance regarding Liberian DED and how to document employment authorization for Form I-9 purposes, please reach out to your Jackson Lewis attorney.

USCIS is resuming the Cuban Family Reunification Parole (CFRP) Program beginning with already pending CFRP applications. This program started in 2007 and has been on hold for some time. It allows beneficiaries of approved Forms I-130, Petitions for Alien Relative, to come to the United States on parole while waiting for an available visa number.  The purpose of the program is to offer safe immigration pathways for those confronting humanitarian crises and alleviate the dangers associated with irregular immigration efforts for family members of U.S. citizens and legal permanent residents.

Under the CFRP, USCIS sends invitation letters to petitioners who are eligible for the program. Upon receipt of an invitation, parole forms and fees must be submitted. The last step is the scheduling of a consular interview in Havana. Upon arrival in the United States, beneficiaries are eligible to apply for work authorization. When the beneficiary’s immigrant visa becomes available or after one year of physical presence in the U.S., the beneficiary may apply for lawful permanent residence, if otherwise eligible.

At this time, USCIS is not issuing new invitations. The agency, however, has started to mail interview notices to petitioners with pending applications along with instructions for the beneficiary interviews. The Embassy in Havana was closed in 2017 and the USCIS field office in Havana was closed in 2018. Currently, there is limited interview capacity; however, on August 18, 2022, USCIS began conducting interviews.

USCIS is also sending general information about the program to petitioners with pending applications.  That information includes points that petitioners and beneficiaries should consider to determine whether they are still eligible for the program and how to proceed. These considerations include:

  • Has the beneficiary already applied for adjustment of status?
  • If the petitioner has naturalized, can the beneficiaries be considered immediate relatives for adjustment purposes?
  • Have any beneficiaries aged out?
  • Is immigrant visa processing an alternative?

USCIS has:

  • Recommended petitioners with pending CFRP applications for family members should ensure that USCIS and National Visa Center (NVC) both have their current address; and
  • Warned petitioners and beneficiaries to avoid scams explaining that the government agencies will not email or call to ask for money or payment or fees.

In June 2022, DHS announced that it would resume both the CFRP and the Haitian Family Reunification Parole (HFRP) Program. To date, the Haitian program has not resumed.

Jackson Lewis attorneys are available to advise regarding these family reunification programs.

Marijuana still is considered a Schedule I drug under the federal Controlled Substances Act. A conviction under the Controlled Substances Act can lead to severe consequences for a non-U.S. citizen.

Under U.S. immigration law, any non-U.S. citizen who is convicted under the Controlled Substances Act, even green card holders, who participate or make investments in the marijuana industry or use marijuana where it is legal (even for medicinal purposes) may be subject to inadmissibility, be barred from returning to the United States or be prevented from naturalizing (for at least five years). For example, a Russian national reportedly was denied a green card (although he has not been deported) for “aiding and abetting” in the trafficking of marijuana for “installing and maintaining a security camera system for a cannabis grower ….”

Serious immigration consequences can result even in states where employees may be protected from employer sanctions based on marijuana use. Currently, 37 states (and the District of Columbia) have decriminalized marijuana or enacted laws authorizing its use for medical or recreational purposes. Additionally, some states prohibit employers from disciplining employees for marijuana use outside of the workplace, and some states prohibit employment discrimination against medical marijuana users. As employers adopt policies in line with state laws, they should be careful not to encourage non-citizens to participate in activities that involve marijuana and remind all employees that, while there may not be many federal prosecutions for individual use, the possession, sale, cultivation, and distribution of marijuana remains illegal under federal law and may have serious immigration consequences. [. ]

Congress is considering legislation to decriminalize marijuana, i.e., the Marijuana Opportunity Reinvestment and Expungement (MORE) Act and the Cannabis Administration and Opportunity Act (CAOA). If the MORE Act or the CAOA is passed, it would eliminate the confusing conflicts that arise for foreign nationals between state and federal law. Either law would:

  • Remove marijuana from Schedule I of the Controlled Substances Act;
  • Expunge low-level federal marijuana convictions;
  • Create new marijuana industry opportunities in states where the industry is legal; and
  • Eliminate the threat of inadmissibility or deportation for foreign nationals participating in the legal marijuana industry.

Until marijuana is decriminalized at the federal level, foreign nationals must be wary. If you have questions about how federal law regarding marijuana might affect immigration benefits, please reach out to your Jackson Lewis attorney.

Voters in Massachusetts may be asked whether to repeal state law granting standard Massachusetts driver’s licenses to undocumented immigrants in November.

In February 2022, the Massachusetts House of Representatives passed a bill to allow undocumented immigrants to apply for standard Massachusetts driver’s licenses. The bill was then passed by the Massachusetts Senate and vetoed by Governor Charlie Baker. The House and Senate overrode the veto, and the law is set to go into effect on July 1, 2023.

Proponents believe such a law “will improve road safety and assuage immigrants’ worries of being revealed as undocumented and face deportation because of a routine traffic stop of accident.” Other advocacy groups note that it will enable undocumented individuals who work and pay taxes to buy groceries, bring children to school, and access healthcare.

But opponents are still fighting the legislation. Groups are working to place a referendum question for the November elections. Signatures are being gathered to repeal the law. Opponents have various reasons for wanting to repeal the legislation, but they are particularly motivated by a fear that those who receive driver’s licenses will be registered to vote – even though the law states that “people without legal immigration status will not be registered to vote as a result of getting a driver’s license.”

Massachusetts Secretary of State William Galvin will be reviewing the signature petitions to verify that the needed 40,000-signature threshold for a referendum is met. Proponents of the legislation believe that, even if it the question gets onto the ballot, the majority of registered voters support the bill.

Jackson Lewis attorneys will provide updates as they become available.

Responding to the history of legal challenges, the Biden Administration is trying to give the DACA (Deferred Action for Childhood Arrivals) program more heft by changing it from a policy to a regulation. On October 31, 2022, a new final rule will become effective.

To the dismay of many advocates for the “Dreamers,” however, the new final rule simply reinstates the previous policy without making any substantial changes. For instance, the new rule does not reach individuals who were brought to the United States by their parents after 2007 nor does it reach “Documentary Dreamers” who have aged out of their parents’ visas.

Under the new final rule, individuals without lawful permanent status in the United States may apply to defer removal for a renewable period of two years and receive employment authorization. To be eligible, such individuals must have come to the United States while under 16 years of age, have continuously resided in the United States since June 15, 2007, and must have been physically present in the United States on June 15, 2012, and at the time of the DACA application. In other words, the individual must have been in the United States when the original DACA policy was initiated by the Obama Administration.

A federal district court judge in Texas ruled in July 2021 that the DACA policy could not be enforced because it was not enacted correctly. That decision is still on appeal at the U.S. Court of Appeals for the Fifth Circuit. In the meantime, the district judge allowed that those already in DACA status could continue to renew their eligibility, but that new initial applications for DACA could not be accepted. That injunction will remain in effect until a ruling comes down that changes it — even after the new rule goes into effect.

That is why President Joe Biden has made clear that Congress is in the best position to make DACA protection permanent, to change DACA eligibility to encompass a larger group of individuals who have been brought to the United States by their parents, and to provide a pathway to citizenship for DACA and DACA-type beneficiaries.

Jackson Lewis attorneys are available to assist regarding strategies for Dreamers and to advise regarding Form I-9 Employment Eligibility Verification for DACA recipients.

For H-1B visas, employers have been hoping there will be another round of selections for FY 2023, but that is not on the horizon.

USCIS has been sending non-selection notices to registrants’ online accounts. USCIS can only send non-selection notices once it has determined that enough petitions for the regular cap and the advanced degree exemption have been received.

Properly submitted registrations that did not make it will show as “Not Selected” in their accounts. Others may still show as “Submitted” but it is likely that those too will start to show as “Not Selected” in the days to come as the USCIS completes its process.

Last year, USCIS received 308,613 registrations and had three rounds of selections resulting in 131,970 selected petitions to meet the limit of 85,000. In last year’s first round, only 87,000 registrations were selected. This year, USCIS received 483,927 registrations and selected 127,000 petitions in the first round to meet the 85,000 total.

USCIS calculates the number of cases it will select based on historical data regarding the number of petitions that have been filed post-selection and the number of denials forecast. Last year, the COVID-19 pandemic was a big unknown. Now, as was predicted, USCIS seems to have a better grip on the data.

Please reach out to your Jackson Lewis attorney with any questions about the selection process and options for those not selected.

For more than two years, due to the COVID-19 pandemic, the Department of Homeland Security has been allowing employers with remote workers to review Form I-9 Employment Verification Authorization documents virtually over video link or by fax or email. That flexibility is set to expire on October 31, 2022.  Please see our full legal update here.

Syrian Temporary Protected Status (TPS) has been extended and redesignated until March 31, 2024.

Those already holding Syrian TPS must apply for the extension of their status and employment authorization (if desired) during the 60-day registration period beginning August 1, 2022, and running through September 30, 2022. Employment authorization will be automatically extended until September 30, 2023, for those who reapply and have current TPS EADs expiring on September 30, 2022, March 31, 2021, September 30, 2019, or March 31, 2018. Those with currently pending applications for extensions need not reapply because their new approvals will be extended until March 31, 2024.

Because of the redesignation, Syrians who have continuously resided in the United States without TPS since July 28, 2022, may apply during the registration period and beyond, until March 31, 2024.

Syrian TPS applicants also may apply for travel authorization.

Syria was originally designated for TPS in 2012 and the designation has been repeatedly extended since that time based on the ongoing armed conflict and extraordinary temporary conditions including: large-scale destruction of infrastructure, mass displacement of citizens, food insecurity, limited access to water and medical care, widespread civilian casualties, and, more recently, the effects of the COVID-19 pandemic.

Syrian students in F-1 status who have been experiencing economic hardship have had employment limitations suspended since 2021. That suspension is being extended until April 1, 2024, so that they may work more hours, reduce their course loads, and continue to maintain their student status.

For more information on how to verify or re-verify employment authorization for TPS beneficiaries, please reach out to your Jackson Lewis attorney. To check the latest on work authorization extensions for other TPS holders from other countries, see our TPS Work Authorization Tool.

Employers whose employees presented expired List B documents for Form I-9 Employment Eligibility Verification purposes between May 1, 2020, and April 30, 2022, must update Form I-9 with unexpired documents by July 31, 2022.

Since COVID-19 prevented various issuing authorities from renewing documents on time, DHS temporarily instituted a policy allowing employees to present expired List B documents between May 1, 2020, and April 30, 2022. On May 1, 2022, DHS rescinded that temporary policy and announced that those Forms I-9 would have to be updated by July 31, 2022.

If the employee is still employed:

  • Ask the employee to provide an unexpired document that establishes identity. This could be the renewed List B document, a different List B document, or a List A document that establishes both identity and employment authorization.
  • The employer should complete the document’s title, issuing authority, number, and expiration date and initial and date the change in the “Additional Information” box in Section 2 of the Form I-9.

If the initially presented List B document appeared to be expired, but actually was automatically extended by the issuing authority, then it was considered unexpired when presented by DHS. Then, no action is required.

If the employee is no longer employed:

  • No action is required.

While expired List B documents are no longer viable for I-9 purposes, eligible employers may still review Form I-9 documents virtually, over video link, or by fax or email until October 31, 2022. This flexibility continues until an employee undertakes non-remote employment on a regular, consistent, or predictable basis or until the policy is terminated. And the policy may not be terminated. The temporary virtual  I-9 flexibility could be made into a permanent rule,  as DHS is already in the midst of the rulemaking process.

Jackson Lewis attorneys will provide updates as they become available.