Legal Updates Archive

On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers issued a final rule defining “waters of the United States” (WOTUS).

The Minnesota Court of Appeals recently dealt another blow to the City of Minneapolis’ 2040 Comprehensive Plan with its December 27, 2022, order.

The current National Labor Relations Board atmosphere feels very much like the epic battle between the evil Empire and the heroic rebel forces. In this latest episode, the Board used its double-sided lightsaber to cauterize standard separation agreements that employers routinely enter into with employees, whether the latter are unionized or not.

With the rise in construction projects that are audited, it is important for owners, general contractors and subcontractors of all tiers to understand both the basics and specific concepts regarding construction audits and seek legal counsel as needed.

U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2024 H-1B cap will open at noon EST on March 1, 2023, and run through noon EST on March 17, 2023.

The Department of State’s Visa Bulletin for February 2023 includes information about retrogressions in the worldwide final action and application filing dates in the employment third preference “Other Workers” category.

U.S. Citizenship and Immigration Services has returned to a pre-Trump administration policy of adjudicating Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization for H-4 and L-2 derivatives, along with the underlying Form I-129, Petition for Nonimmigrant Worker, when these forms are filed concurrently.

U.S. Citizenship and Immigration Services is implementing the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Also, in March and April, USCIS plans to expand premium processing to certain F-1 students and exchange visitors.

The Department of State, in collaboration with the Department of Health and Human Services, announced the launch of Welcome Corps, a new private sponsorship program to welcome refugees arriving through the U.S. Refugee Admissions Program and support their resettlement and integration into the United States. The initiative is pursuant to President Biden’s Executive Order 14301, “Rebuilding and Enhancing Programs to Resettle Refugees.”

U.S. Citizenship and Immigration Services provided questions and answers following a webinar presented by the Office of the Citizenship and Immigration Services Ombudsman on international student issues.

The Department of Homeland Security announced on January 13, 2023, that noncitizen workers who are victims of or witnesses to the violation of labor rights can now access a streamlined and expedited deferred action request process. DHS explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.”

The Department of Homeland Security announced the extension of temporary protected status for Somalia for an additional 18 months from March 18, 2023, through September 17, 2024. DHS also redesignated Somalia for TPS, allowing Somali nationals residing in the United States as of January 11, 2023, to apply for TPS, so long as they meet all eligibility requirements.

The Department of Homeland Security announced that the new scheduling function in the CBP One™ mobile application is now live. Non-U.S. citizens located in Central or Northern Mexico who seek to travel to the United States may use U.S. Customs and Border Protection’s app to submit information in advance and schedule an appointment to present themselves at certain southwest border land ports of entry.

After the Trump administration’s 2019 public charge rule was invalidated nationwide following a court battle and the Biden administration’s dropping of its defense of the rule, Texas and 13 other states attempted to intervene and bring back the rule through litigation.

U.S. Citizenship and Immigration Services is extending the validity of green cards for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, for 48 months beyond the card’s expiration date.

The Department of Homeland Security announced several measures to provide relief for Haitians in the United States, including temporary protected status and special student relief.

U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through March 23, 2023. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date for requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and March 23, 2023.

Iowa’s 2023 legislative session is well under way. Landlords should be aware of the following active bills at the Iowa Capitol.

U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2024 H-1B cap will open at noon EST on March 1, 2023, and run through noon EST on March 17, 2023. If USCIS receives enough registrations by the time the registration window closes, USCIS will conduct a registration lottery. 

As in prior years, Fredrikson anticipates that the United States Citizenship and Immigration Services will open the initial registration period for the cap-subject fiscal year 2024 H-1B visas in early March 2023. While USCIS will announce the registration window and process, which will allow prospective petitioners to create new accounts for the H-1B lottery registration soon, employers who would like to participate in the H-1B lottery for FY 2024 should start preparing for it now.

On December 8, 2022, U.S. Citizenship and Immigration Services announced filing updates for petitioners who will be requesting additional H-2B workers for fiscal year 2023 under the upcoming temporary final rule. USCIS said it was announcing these updates to assist petitioners who wish to begin preparing their petitions before publication of a rule in the Federal Register.

In a temporary final rule published on December 15, 2022, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has increased the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2023. To “assist U.S. businesses that need workers to begin work on different start dates,” the Departments of Homeland Security and Labor will distribute the supplemental visas in several allocations, including two separate allocations in the second half of FY 2023.

In response to a federal court order, the Department of Labor’s Office of Foreign Labor Certification plans to rescind H-2B registration requirements and propose conforming edits throughout its H-2B regulations. In the interim, DOL said it will use the Notice of Acceptance, issued when an H-2B application meets regulatory requirements and the employer can begin recruiting U.S. workers, to inform an H-2B employer of DOL’s determination of the employer’s temporary need for services or labor.

The Department of Labor’s Office of Foreign Labor Certification has issued a set of frequently asked questions, “Round 4: H-2A Application Filing and Processing,” associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.

The Department of Labor’s Office of Foreign Labor Certification has released frequently asked questions on prevailing wage surveys under the 2022 H-2A final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,” published on October 12, 2022, and effective November 14, 2022.

In two notices, the Department of Labor’s Employment and Training Administration announced the new Adverse Effect Wage Rates under the H-2A program.

On December 7, 2022, the Department of Labor’s Office of Foreign Labor Certification issued its third round of frequently asked questions related to the 2022 H-2A final rule published in October, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.”

U.S. Citizenship and Immigration Services is automatically extending the validity of Permanent Resident Cards for lawful permanent residents who applied for naturalization on December 12, 2022, or later. LPRs who filed for naturalization before December 12 will not receive this extension.

The Department of Homeland Security announced several measures to provide relief for Ethiopians in the United States.

The Department of Homeland Security announced the extension of temporary protected status for Haiti through August 3, 2024. DHS also redesignated Haiti for TPS, allowing eligible Haitian nationals residing in the United States as of November 6, 2022, to apply for TPS through August 3, 2024.

U.S. Citizenship and Immigration Services is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.

The Citizenship and Immigration Services Ombudsman released an updated Form 7001, Request for Case Assistance.

Effective in January, employment first preference final action and application filing dates for China and India are established to hold number use within the maximum allowed under the fiscal year 2023 annual limit.

The Department of Homeland Security plans to extend and redesignate Yemen for temporary protected status in a Federal Register notice expected to be published on January 3, 2023.

Effective January 5, 2023, the Centers for Disease Control and Prevention will require a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China and the Special Administrative Regions of Hong Kong and Macau.

The Department of Homeland Security issued an update on December 13, 2022, on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld by the D.C. Circuit Court of Appeals in a ruling on December 16, 2022. Title 42 prevented many migrants from seeking asylum in the United States because of COVID-19 concerns and required them to wait in Mexico. 

The Immigrant Visa Unit of the U.S. consulate in Guangzhou, China, announced that beginning December 19, 2022, it will be closed for regular visa services until further notice due to limited resources.  The unit will notify the public once it is able to resume normal immigrant visa operations and will communicate with applicants to reschedule their canceled appointments. 

The Federal Trade Commission raised questions with employers when it issued a notice of proposed rulemaking that seeks to ban all non-compete agreements nationwide. While the proposed rule could impose drastic change, at this point, the proposed rule is in the public comment period, and it is uncertain what the final rule will look like or whether it will face legal challenges in the near future. 

On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act of 2023, containing the SECURE 2.0 Act of 2022 (SECURE 2.0). While most of SECURE 2.0’s provisions will not take effect for a couple years, SECURE 2.0 impacts most retirement plans, and plan sponsors should be aware of future changes under SECURE 2.0.

The Department of State’s Visa Bulletin for December 2022 includes a variety of updates.

The Department of Labor’s Office of Foreign Labor Certification has released various data and statistics and the latest H-2B recruiter list.

The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year.

To ensure its continued compliance with several court orders, the Department of Homeland Security is automatically extending the validity of certain temporary protected status-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal from the current expiration date of December 31, 2022, through June 30, 2024.

E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and on a regular basis.

On November 15, 2022, U.S. District Court Judge Emmet Sullivan blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which Judge Sullivan granted. The order will be effective December 21, 2022.

Effective November 21, 2022, certain Afghan and Ukrainian parolees are considered work authorized incident to their parole status based on recently passed laws, U.S. Citizenship and Immigration Services announced.

The National Labor Relations Board (NLRB or the Board) — the independent federal agency responsible for enforcing U.S. private-sector labor law—had a busy week. The Board issued four new rulings with significant impacts on labor relations between employers and their employees.

USCIS and DOL have released the joint temporary rule that provides 64,716 additional H-2B temporary nonagricultural worker visas within FY 2023 (from October 1, 2022, to September 30, 2023). 20,000 visas will be reserved for nationals of Haiti and the Northern Triangle countries (El Salvador, Guatemala and Honduras). The remaining 44,716 visas will be available to returning workers who were otherwise granted H-2B status in the past three  fiscal years, and they will be released incrementally based on a schedule outlined by the Department of Labor (DOL) and U.S. Citizenship and Immigration Service (USCIS).

It is increasingly important for companies to understand the difference between employees and independent contractors and the consequences of each classification. This type of classification dispute, however, is not limited to drivers. Recently, agricultural, retail, contracting, consulting, health care, manufacturing, insurance, and financial services industries have seen a rise in worker classification audits. This raises the question, how are worker classifications determined in the context of tax and employment law?

If you have recently received a subpoena from a government agency investigating a customer’s financial dealings, you are not alone. As the alarm and uncertainty of the COVID-19 pandemic finally begin to calm, audits and investigations concerning the use of funds from pandemic relief initiatives such as the Paycheck Protection Program, Main Street Lending Program, and others are in full swing, sometimes followed by civil and criminal charges.