Illinois has amended the Illinois Human Rights Act to make “work authorization status” a protected category.

The amendment, Public Act 102-0233, became effective immediately upon the governor’s signing in early-August.

Under the amendment, “work authorization status” is defined as the status of a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States. See Public Act 102-0233. While this anti-discrimination amendment seems to align with federal law, the definition of protected individuals is much broader.

Federal immigration law prohibits citizenship discrimination and protects U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents. The Illinois Human Rights Act also prohibits citizenship discrimination. Federal and Illinois discrimination laws prohibit discrimination based on national origin. The amendment to the Illinois Human Rights Act adds a new category and makes it a violation, among other things, for any employer “to refuse to honor work authorization based upon the specific status or term of status that accompanies the authorization to work.” This law protects any individual with Employment Authorization Documents (EADs), including DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), and DED (Deferred Enforced Departure) beneficiaries, as well as non-immigrants, such as H-4 and L-2 spouses.

Although the amendment states that nothing in the Illinois Human Rights Act “shall require an employer to sponsor, either monetarily or otherwise, any applicant or employee to obtain or modify work authorization status,” it does prevent an employer from making employment decisions based on EAD expiration dates or a particular work authorization status (like DACA, H4 EADs, or TPS). DACA beneficiaries or Dreamers have already brought lawsuits alleging that such actions violate Section 1981 of the federal Civil Rights Act and the Illinois amendment may have been a reaction to those cases.

Illinois employers may need to modify their hiring and I-9 practices to ensure they do not violate the amended Illinois Human Rights Act. Jackson Lewis attorneys are available to assist you with such a review.

The effects of the COVID-19 pandemic are far reaching. The labor shortage plaguing America has been one of the most publicized. Why is it so difficult for some employers to find employees? The 2020 United States Census offers possible reasons: an aging population, decreased fertility rates, and low rates of immigration.

The 7.4% population increase reported in the 2020 Census is one the smallest increases ever – second only to the one following the Great Depression. While pro-family policies can help to increase family size, according to a policy expert, “immigration is a much more reliable driver of population growth.” Studies have shown that immigration provides a younger workforce, the entrepreneurial workers, and the skilled employees needed for essential industries such as healthcare, construction, agriculture, and food processing.

According to the U.S. Chamber of Commerce, “a worker shortage is holding back job creators across the country.” It is also leading to “supply-chain bottlenecks and higher prices for businesses and consumers.” The Census had forecasted a 1.4 million increase in immigrants from 2017 to 2019. Instead, the figure was much smaller – 400,000. That is one reason the Chamber and others are lobbying to double the number of H-1B and H-2B visas available, to ease the labor shortage and all the economy to surge.

The labor shortages are being felt perhaps most acutely in areas of the country that had, before the COVID-19 pandemic, experienced great population and economic growth, such as Northwest Arkansas and other non-coastal areas. In many of these areas, economic booms have been fueled by immigrants. Without immigrants, these areas could experience zero or negative population growth, a smaller workforce, and an aging economy.

The Biden Administration has expressed time and time again that it is committed to implementing long-term immigration reform. The fact is, we are losing immigrant entrepreneurs and talent to other nations, and our longevity in an increasingly competitive world is tied to an immigration policy that makes sense in the 21st century economy.

Congresswoman Zoe Lofgren recently introduced a bill that creates a new nonimmigrant visa for startup founders. This bill creates a direct path to a green card if the start-up entity meets certain benchmarks that demonstrate the founder has a proven track record of success in business development, then the founder can apply for and receive lawful permanent residence. The bill will also create nonimmigrant visa categories for managerial and executive employees of the startup entity. Common sense policies, such as Lofgren’s bill, will ensure America remains the primary destination for the world’s best and brightest.

If you have questions about the Biden Administration’s proposals for business immigration, Jackson Lewis attorneys are available to assist you.

A non-genetic, non-gestational legal parent of a child born through assisted reproductive technology (ART) outside of the United States may transmit U.S. citizenship to the child under certain circumstances, U.S. Citizenship and Immigration Services (USCIS) Director Ur Mendoza Jaddou has announced.

Director Jaddou, the first woman to be appointed to that position, made the announcement in one of her first official acts following Senate confirmation on July 30, 2021.

Citizenship may be transmitted if:

  • The parent is married to the child’s genetic or gestational parent at the time of the child’s birth; and
  • The relevant jurisdiction recognizes both parents as the child’s legal parents.

This is the latest in a line of complex policy changes that have started to recognize the realities of modern families.

In 2014, USCIS recognized gestational mothers who used ART as meeting the definition of “mother” or “parent” in immigration law even if the mother had no genetic connection to the child. As far as transmitting U.S. citizenship to a child born abroad, surrogacy was considered an “out of wedlock” birth (even if the legal parents were married). For transmission to occur, the child had to have a genetic or gestational relationship to a U.S. citizen parent.

By May 2021, the denial of U.S. citizenship to one twin born to same-sex parents because that twin did not have a biological connection to the U.S. citizen parent (although the other twin did) led to another change in the guidelines. Same-sex or heterosexual parents of children born abroad using in vitro fertilization or surrogacy could transmit U.S. citizenship if the parents were married and the child had biological ties to at least one of the parents. The biological tie could be to a non-U.S. citizen parent.

Pursuant to USCIS’ new policy, a child’s genetic parents (or the legal gestational parent and one of the genetic parents) do not have to be married to one another for a child to be considered born “in wedlock” for family-based immigration petitions. Director Jaddou stated, “USCIS is taking a crucial step towards ensuring fair access and support for all families and their loved ones . . . . We are committed to removing unnecessary barriers promoting policies for all people as they embark on their journey to citizenship and beyond.”

Jackson Lewis attorneys are available to assist with any questions regarding the transmission of U.S. citizenship and the acquisition of U.S. citizenship.

Approximately 27,000 additional Cap H-1B cases were selected in a second-round lottery for fiscal year 2022. The selected petitions must be filed by November 3, 2021. In the meantime, litigation challenging the validity of the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions Rule (Modification Rule), for next year’s petitions, are moving forward.

The Modification Rule was published during the previous administration. It prioritizes H-1B Cap selection based on wage level. Instead of the current and historical process of random selection, USCIS would choose cases based on a hierarchy – starting with Level IV wages and working down. The Rule as written will increase the selection rate for Level III and Level IV cases. However, it would all but eliminate the likelihood that petitions with Level I entry-level wages will be selected. Concerns about this and the resulting effects on the economy have been raised since the Rule was first introduced, and business groups, institutions of higher education, and companies have been challenging the Modification Rule in court. Recently, though, a non-profit organization that represents technology workers, and that generally opposes the H-1B program, filed an amicus brief supporting the Modification Rule.

Unlike some other Trump Administration immigration rules, the Modification Rule was not withdrawn by the Biden Administration. Its implementation, however, was delayed due to technical challenges until the end of 2021. This means it could go into effect for next year’s Cap H-1B lottery if it is upheld.

In Chamber of Commerce of the United States et al. v. USCIS et al., opponents to the new rule argue that the proposed changes are unlawful in that the Rule conflicts with the Immigration and Nationality Act; is void because it was implemented by Chad Wolf who was unlawfully serving as Acting Secretary of Homeland Security; and is arbitrary and capricious because DHS failed to respond adequately to comments on the effects of the Rule. They argued that American employers have developed a “reliance interest” in the way the H-1B program historically has operated.  The plaintiffs particularly noted that the Modification Rule “is likely to exclude many of the bright, ambitious, early-career professional who often drive innovations” and that DHS itself has estimated that “zero percent” of wage Level I petitions will be selected.

We will continue to follow the litigations regarding the Modification Rule. If you have questions about strategies to deal with its possible implementation, Jackson Lewis attorneys are available to assist.

 

 

In a tweet on August 20, 2021, the Department of Homeland Security announced that:

“To minimize the spread of COVID19, including the Delta variant, the United States is extending restrictions on non-essential travel at our land and ferry crossing with Canada and Mexico through September 21, while continuing to ensure the flow of essential trade and travel.”

The closure on the United States side continues although Canada has opened its border to fully vaccinated American citizens and green card holders and hopes to open the border to other foreign nationals by September 7, 2021.

If you have questions about these restrictions, please reach out to your Jackson Lewis attorney.

One of the themes of this year’s USCIS Ombudsman Annual Report is that the agency has been through “a year like no other.” USCIS faced “unprecedented challenges.” With the COVID-19 pandemic came temporary office closures, reduced capacity, and budget cuts. This led to previously unseen levels of backlogs and deepening financial problems, according to the report.

The staff of the USCIS Ombudsman fields requests for help (as an avenue of last resort), is a force multiplier in disseminating immigration information, and gives recommendations to the USCIS about ways to improve services.

According to the report, USCIS made changes to adapt to COVID-19 to increase efficiency that may well continue: expansion of electronic filing and processing capabilities, increased outreach to stakeholders, and improved coordination between USCIS and other government agencies.

The report focused on the need for USCIS to speed up its transition to a digital environment. Initiated 15 years ago, the transition has been slow. As a result, during the pandemic, employees had problems accessing and returning paper files, and the lack of product lines that could be fully processed electronically added to the backlogs.

Another major issue that was exacerbated by COVID-19 is USCIS’ financial insecurity. Because the agency depends solely upon fees for revenue, the resources available to it can be unpredictable. During the COVID-19 pandemic, when the number of filings dropped, major furloughs were threatened. USCIS managed to avoid furloughs by instituting other budget reductions. USCIS used premium processing fees for operations (generally, those fees must be set aside for the digital environment project). Congress passed legislation that would allow USCIS to add more types of cases to premium processing (including I-765 Applications for Employment Authorization). The agency has not instituted those because it does not yet have the staff to accommodate the timelines. While it may take years for USCIS to re-achieve full staffing (after a hiring freeze), the report noted that more premium processing eligibility can be expected.

Moving forward, the Ombudsman recommended USCIS continue some of its pandemic policies:

  • Expansion of remote work, prioritization of online filing, and expansion of the digital environment project
  • Generous interview waiver policies
  • Drive-thru naturalization oaths
  • Reuse of biometrics
  • Remote appearances of attorneys and other representatives
  • Creation of more e-tools
  • More public engagement

Jackson Lewis attorneys will continue to monitor and report developments at USCIS. Please contact us with any questions.

E-Verify is moving toward tougher enforcement, which can result in a temporary termination from participation in the E-Verify program.

Early in the COVID-19 pandemic, E-Verify relaxed some of its standards regarding Tentative Nonconfirmation (TNCs). But, by November 2020, E-Verify stopped allowing extensions and began enforcing its usual timing requirements.

Employers receiving a TNC must notify the affected employee by providing the Further Action Notice explaining they must contact the appropriate government agency within 10 federal government workdays. If the employee does not respond or decides to “not contest” the TNC, the employer must note this choice in E-Verify by closing the case within 10 federal government workdays. When TNC cases remain open in E-Verify for more than 10 federal government workdays, it may be that the employer is not acting in accordance with TNC requirements. The government has stated that such failures may be considered policy violations that can lead to compliance action, up to and including termination of the employer’s E-Verify account.

Employers who have TNCs that have remained open for more than the 10 days have received notifications from E-Verify asking them to take action to resolve the open TNCs and reminding the employers of the possible consequences of non-compliance. Recent indications are that E-Verify may cut off employer access to E-Verify after 30 days if the government does not see sufficient follow up.

For employers who are required to use E-Verify under federal law (such as federal contractors and sub-contractors) or under state law or employers who use E-Verify primarily to provide STEM OPT, termination of their E-Verify accounts could have significant repercussions.

Jackson Lewis attorneys continue to monitor the situation. For advice on how to respond to TNCs or a notice from E-Verify regarding possible TNC non-compliance, Jackson Lewis attorneys are available to assist.

The Department of Homeland Security (DHS) announced that, because of new dire circumstances, TPS for Haiti will be designated for 18 months effective August 3, 2021, through February 3, 2023.

The designation is a response to the “[d]eteriorating political crisis, violence, and a staggering increase in human rights abuses,” as well as a deteriorating healthcare situation, along with food insecurity and lack of access to basic services.

Eligible Haitians must have continuously resided in the United States since July 29, 2021, and been continuously physically present since August 3, 2021. The 18-month registration period will run until February 3, 2023.

Thousands of Haitians already have TPS-related documentation, including EADs, based on pending litigation. The DHS recommends all Haitians who meet the eligibility requirements apply as soon as possible for the new 18-month TPS period because the new designation provides more security. Failure to apply could result in possible gaps in status or employment authorization. Instructions on how to apply can be found in the Federal Register.

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

Anyone thinking of travelling internationally next year needs to plan ahead. Due to backlogs, applications for new or renewed U.S. passports should be filed at least six months in advance. The Department of State (DOS) reports that regular processing takes up to 18 weeks and expedited processing takes at least 12 weeks. DOS is only prioritizing life and death emergencies.

Because of these delays, some individuals are being fooled by scammers who promise passports at “lightning speed.” The Better Business Bureau advises that applicants should be wary of phony websites, unsolicited emails and calls, and unusual forms of payment.

DOS has also been affected by technological issues. It has temporarily suspended its online passport booking system for urgent/emergency passports because of bots. Third parties have been using automated programs (bots) to scoop up all available appointments and then sell them to needy travelers.  During the temporary suspension, applicants will have to use a telephone to book an appointment. This suspension only affects the 26 passport agencies and centers that accept urgent requests. It does not affect bookings at passport acceptance facilities such as post offices, libraries, and certain government offices.

Members of Congress in both parties are looking for answers from DOS about how it is addressing the backlogs and long wait times.

President Joe Biden has authorized thousands of Hong Kong residents currently residing in the United States to remain in the country pursuant to Deferred Enforced Departure (DED) for up to 18 months. In addition, he authorized employment for covered Hong Kong residents and the relaxation of employment rules for F-1 students from Hong Kong.

DED is not a specific immigration status, but a humanitarian measure that exempts certain individuals from removal for a designated time period. DED is fully within the president’s discretion to authorize. Currently, there are two other countries with DED designation: Liberia and Venezuela. Venezuela also carries the Temporary Protected Status (TPS) designation.

Eligibility requirements for Hong Kong DED include the following:

  • The applicant must have continuously resided in the United States since August 5, 2021; and
  • The applicant cannot have voluntarily returned to Hong Kong or the People’s Republic of China (PRC) after August 5, 2021.

President Biden authorized DED in recognition of “the significant erosion of . . . rights and freedoms in Hong Kong by the People’s Republic of China” and stated that “[t]he United States will not waver in our support of people in Hong Kong.”

DED is a temporary measure, but a State Department representative has noted that Hong Kongers could still be referred for consideration as refugees. Since the PRC’s crackdown in Hong Kong, other countries have already offered certain immigration benefits. Britain created a new visa that could lead to citizenship. Canada and Australia have also started to facilitate immigration and permanent residency.

More information on how to apply for Hong Kong DED should be forthcoming in the Federal Register. Applicants should review that notice before attempting to apply for DED.

For more information about Hong Kong DED or other DED or TPS statuses, Jackson Lewis attorneys are available to assist.