As reported by the New York Times, on October 30, 2009, President Obama repealed the ban on travel to the United States by people who test positive for HIV. The final rule (pdf) lifting the ban will take effect on January 4, 2010. As of the effective date, foreigners wishing to visit the U.S., or seeking U.S. residency, will no longer be required to take an AIDS test.
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The Department of Homeland Security (DHS) has published in the Federal Register a final rule rescinding the controversial “no-match” rule. The rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – created safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. Read the full story on Littler's Washington DC Employment Law Update blog.
The U.S. District Court for the District of Maryland has upheld the E-Verify Federal Contractor Rule, scheduled to become effective September 8, 2009, that will require federal contractors to enroll in 
E-Verify within 30 calendar days after being awarded a covered contract and to start using the system within 90 days from the date of enrollment.
The U.S. Chamber of Commerce and other business organizations challenged the regulation, claiming it:
The court disagreed and ruled for the government on every count.
Click here for the full text of the decision.
The United States Court of Appeals, Seventh Circuit, has upheld a United States Department of Labor (DOL) regulation amended to limit the validity of foreign worker labor certificates to 180 days after the regulation had taken effect and only if submitted with a visa petition within that time period. A group of businesses had challenged the regulation, arguing that: (1) the DOL exceeded its authority by creating a rule that regulates immigration, and (2) the regulation itself was unlawfully retroactive because it invalidated previously approved labor certificates that were “valid indefinitely.”
The Seventh Circuit held that the DOL had not exceeded its authority, noting that previous DOL policy was not entirely consistent with federal law requiring that labor certificates only be issued if the DOL could demonstrate that (1) there were insufficient numbers of qualified and available workers for the position and (2) the employment of foreign workers would not adversely impact U.S. workers. The amended regulation, however, fulfilled legislative intent by requiring determinations based on true labor market conditions as well as protecting the interests of U.S. workers.
The court further held that the regulation was not retroactive because it did not create new legal consequences for a past act. The court found that the mere act of applying for a labor certificate was not a final event triggering legal consequences. Moreover, the court reasoned that “indefinite” did not mean “permanent” because the duration was “not clearly fixed.” The court concluded that the DOL addressed the issue of “indefiniteness” by prescribing a validity period for labor certificates.
Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
Department of Homeland Security (DHS) Secretary Janet Napolitano has announced that the Obama administration will fully implement the federal contractor rule that extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Starting on September 8, 2009, the rule will apply to federal solicitations and contract awards government-wide. At the same time, Napolitano announced that DHS intends to rescind the Social Security No-Match Rule.
In making the announcement, Napolitano commented: “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. . . . As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.” Initiatives now underway with respect to E-Verify are designed to:
As reported by The New York Times, support for the E-Verify system is by no means universal. Immigrant advocacy groups continue to criticize E-Verify, and the system is being challenged in federal court by the US Chamber of Commerce and other business groups, who contend that the databases it relies upon is full of errors.
Regarding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect, DHS will propose a new regulation that will rescind the rule. With respect to rescission of the No-Match Rule, the DHS announcement noted that the E-Verify system addresses data inaccuracies more quickly and “provides a more robust tool for identifying unauthorized individuals and combating illegal employment.”
The Department of Labor is suspending the H-2A Final Rule (published on December 18, 2008 and in effect as of January 17, 2009). That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the DOL is republishing and reinstating the regulations in place on January 16, 2009 for a period of nine months, after which the Department will either have engaged in further rulemaking or lifted the suspension.
The notice of suspension (PDF) was published in the Federal Register on May 29, 2009, and the suspension is effective June 29, 2009. In order to answer employers’ questions about the suspension, the Office of Foreign Labor Certification has issued the document “H-2A Notice of Final Suspension: Frequently Asked Questions”(PDF).
The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program. Continue reading about this development on Littler's Washington DC Employment Law Update blog.
The Department of Labor (DOL) published a Final Rule on the labor certification process and enforcement for H-2B employment on December 19, 2008, which became effective on January 18, 2009. The Final Rule made some significant changes in the processing of applications for H-2B labor certifications. In response to questions raised regarding the application of the new regulations, the DOL has released (PDF) a list of “Frequently Asked Questions” (FAQs).
The FAQs cover the following topics:
The Centers for Disease Control and Prevention (CDC) is seeking public comment on a set of proposed criteria to be used in determining which vaccines, among those recommended by the Advisory Committee on Immunization Practices (ACIP) for the United States’ general population, should be required for immigrants seeking admission into the U.S. or seeking permanent residence status. These specific criteria will be applied against each vaccine, rather than requiring all ACIP recommended vaccines for immigration purposes.
Through a notice (PDF) published in the Federal Register on April 8, CDC has proposed the following criteria:
The deadline for submitting written comments is May 8, 2009.
As discussed in our previous entry, the new Form I-9 (revision date 2/02/2009) is currently scheduled to go into effect on April 3, 2009. The new I-9 form is available on the U.S. Citizenship and Immigration Services website. The new I-9 and the interim rule creating it were originally published in the Federal Register on December 17, 2008, with a correction published on January 16, 2009. However, on January 30, 2009, the U.S. Department of Homeland Security (DHS) announced that implementation of the new I-9 would be postponed until April 3, 2009. Notice of the delay appeared in the February 3, 2009 edition of the Federal Register. Continue reading Littler ASAP "Countdown to Effective Date of New I-9" by Jorge R. Lopez and Lisa A. Cottle.
On January 8, 2009, US Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated H-2B cap for the second half of Fiscal Year 2009. Accordingly, January 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. USCIS states that it will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009, that arrive after January 7, 2009.
For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees. Continue reading entry on Littler's Washington DC Employment Law Update blog.
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