New York Labor and Employment Law Report

As we reported in our recent information memo, COVID-19 has created an evolving immigration environment. The related federal agencies and the White House have responded with a number of temporary policy and procedural changes to help minimize the spread of the virus in the U.S. and to help employers comply with various laws during this extremely challenging time. It remains essential for employers to maintain immigration compliance during the COVID-19 emergency and to take the steps necessary to maintain the nonimmigrant status and work authorization of their foreign national employees. In addition, now that businesses and organizations are beginning to reopen pursuant to government guidelines, employers are advised to keep abreast of the latest legal developments and various obligations they may have over the next few months as we slowly return to our workplaces.

Read More >> Business Immigration in the Era of COVID-19 Update: Presidential Proclamations, Travel Restrictions, Resumption of Premium Processing and the Reopening of USCIS

New York has for many years had a law on the books that prohibits employers from retaliating against an employee because the employee has complained about an alleged violation of the wage and hour laws.  Specifically, New York Labor Law Section 215 states that an employer may not "discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee" because the employee complained of an alleged violation of the Labor Law or otherwise cooperated with a Department of Labor or Attorney General investigation regarding an alleged violation of the Labor Law.

On July 29, 2019, Governor Cuomo signed legislation amending the statute to specify that the phrase "threaten, penalize, or in any manner discriminate or retaliate against any employee" includes threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report the citizenship or suspected immigration status of an employee or an employee's family member.  The legislation is effective 90 days after the date on which the Governor signed it.

Read More >> Recent New York Legislation Prohibits Employers From Threatening to Report an Employee's Suspected Immigration Status in Retaliation for Labor Law Complaints

As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

Read More >> VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors

August 9, 2018, the effective date of U.S. Citizenship and Immigration Services' (“USCIS”) policy memorandum that dramatically changes the way USCIS will calculate unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents, is just around the corner. As such, it is essential for Designated School Officials (“DSO”) on college and university campuses to remind nonimmigrant students and exchange visitors of the upcoming policy change to ensure that they do not violate it and jeopardize their stay in the U.S.

Read More >> As the Fall Semester Gets Underway, Colleges and Universities Should Remind Nonimmigrant Students and Exchange Visitors of New Unlawful Presence Policy to be Implemented by USCIS Beginning August 9, 2018

Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.

The first ruling blocking the administration from enforcing the September 24th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.

In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.

The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.

In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.

We will continue to apprise clients regarding any developments as they unfold.

On September 24, 2017, President Trump issued a new Presidential Proclamation entitled, “Presidential Proclamation Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.”  The Proclamation serves as a replacement for the travel ban implemented via Executive Order 13780, which was issued by President Trump on March 6, 2017.  The travel ban components of Executive Order 13780 expired on the same date as the Proclamation’s release.

The new Proclamation applies to a total of eight nations.  Five of these eight countries were previously included in Executive Order 13780 — Libya, Iran, Syria, Yemen, and Somalia.  Three additional countries — Chad, Venezuela, and North Korea — have been added in the Proclamation.  Notably, Iraq and Sudan have been removed from the travel ban list; however, the Proclamation explicitly recommends “additional scrutiny” for Iraqi nationals seeking permission to travel to the United States.

The Proclamation puts forth varying restrictions to each of the eight listed countries based on the U.S. government’s assessment of the security risk posed by the nationals from each of those countries.  For example, the Proclamation suspends all nonimmigrant and immigrant entries of citizens from North Korea and Syria, but permits the nonimmigrant entry of Somali citizens who have undergone enhanced screening and vetting processes.

For foreign nationals already subject to the travel restrictions of Executive Order 13780 (and who do not have a bona fide relationship with a person or entity in the United States), the Proclamation’s restrictions take effect immediately.  For all others, the Proclamation’s restrictions will go into effect on October 18, 2017.

As written, the restrictions set forth in the Proclamation appear to be indefinite, although, at the President’s directive, countries can be removed from the travel ban list based on the government’s review of an affected country’s security risks and a recommendation for removal by the Secretary of the Department of Homeland Security.  The Proclamation also contains a carve-out to allow additional countries to be added to the list in the future.

Similar to Executive Order 13780, the Proclamation does not apply to entry into the United States for the following individuals:

• any foreign national with a valid visa as of the effective date of the Proclamation;
• a lawful permanent resident of the United States (green card holders);
• any person paroled into the United States on or after the effective date;
• any person holding a valid travel document in effect on the effective date;
• any dual nationals of a country covered by the Proclamation when the individual is traveling on a passport issued by a country that is not covered by the Proclamation; and
• any person on a diplomatic visa or others, such as those granted asylum or already admitted to the United States as refugees.

Finally, the Proclamation states that a case-by-case waiver may be issued by consular and border officers, where appropriate, as determined by either the Department of Homeland Security and/or the Department of State.

Not surprisingly, after the Proclamation’s release, the U.S. Supreme Court cancelled the oral argument previously scheduled for those cases seeking to challenge Executive Order 13780.  Instead, the Court has directed the relevant parties to submit briefs on whether the Proclamation renders moot those cases challenging Executive Order 13780.

We will continue to report on any additional developments as they unfold.

On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program.

DACA was implemented in 2012, through an executive order by former President Barack Obama.  DACA allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action.  In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S.  Currently, about 800,000 individuals are participating in the DACA program.  The Trump administration’s decision to phase out the DACA program will end the work authorization of DACA beneficiaries and open the doors for their deportation.

The DACA program is scheduled to end in six months, on March 5, 2018.  As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new DACA/work permit applications.  Individuals whose DACA/work permit expires prior to March 5, 2018 may apply for a two-year renewal, but their application must be received by the DHS on or before October 5, 2017.

Meanwhile, for planning purposes, employers may wish to identify those individuals who are employed pursuant to DACA work permits by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file.  The individuals with DACA work permits will have EADs with a “C33” category and will remain employment authorized until the expiration date of their EADs.  Employers must reverify the employment authorization of these employees by completing Section 3 of Form I-9 no later than the expiration dates on the EADs.  Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed.

As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts.  On September 6, 15 states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination.  There is also the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program.  We will provide you with updates regarding the status of the DACA program as they become available.

Last week, a spokesperson for the U.S. Citizenship and Immigration Services (USCIS) confirmed that in-person interviews will now be required for employment-based nonimmigrant visa holders (e.g., H-1B, O-1, etc.) applying to adjust their status to permanent residents (“green card” holders).  Information currently available from the USCIS indicates that this interview requirement is expected to take effect on October 1, 2017.  This mandate appears to be a result of the Trump administration’s plan to apply “extreme vetting” to immigrants and visitors traveling to the U.S.

Traditionally, employment-based adjustment of status applicants have not been interviewed as part of the process, unless deemed necessary by the government. The interview mandate will most likely lengthen the processing times for green card applications as approximately 130,000 employment-based applications are filed annually with the USCIS.  Currently, the USCIS is taking more than 6 months to process employment-based green card applications at its various service centers throughout the United States.

There is no word on where the USCIS intends to conduct interviews pursuant to this mandate. We will provide updates as additional information becomes available.

Today, July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 to replace the prior form which it released back in late January  of this year. For now, employers will have a 60-day grace period, giving them the option to use the updated form (Rev. 07/17/17 N) or continue using the previous Form I-9 (Rev. 11/14/2016 N) until September 17, 2017. As of September 18, 2017, however, employers must use the updated form for the initial employment verification for all new hires, as well as any applicable employment re-verifications. All prior versions of the Form I-9 will no longer be valid. The new Form I-9 has an expiration date of August 31, 2019.

Initially, the planned revisions to the Form I-9 were primarily meant to address USCIS’ proposed International Entrepreneur Rule, which was originally set to go into effect on July 17, 2017. Under the proposed rule, a foreign passport and Form I-94 indicating entrepreneur parole would be considered acceptable documentation for a foreign entrepreneur to use for employment eligibility verification purposes.  However, with the Trump administration’s freeze on all new regulations, the effective date for the International Entrepreneur Rule has been pushed back until March 14, 2018. Despite the delayed effective date for the proposed rule, the USCIS has still implemented a number of revisions to the form.

The good news for employers is that the current changes are relatively minor and should not have a major impact on the hiring and employment verification process. A summary of the revisions to the new Form I-9 appears below.

Revisions to the Form I-9 instructions:

• The anti-discrimination and privacy act notices on the instructions are revised to change the name of the Office of Special Counsel for Immigration-related Unfair Employment Practices to its new name, “Immigrant and Employee Rights Section”.
• The phrase “the end of” is removed from the phrase “the first day of employment”.

Revisions related to the List of Acceptable Documents on Form I-9:

• The Consular Report of Birth Abroad (“Form FS-240”) has been added as a new “List C” document. Employers completing Form I-9 online are now able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users are also able to choose Form FS-240 when creating cases for employees who have presented this document for Form I-9.
• All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) are now combined into one selection within List C.
• As a result of the combination, all List C documents (with the exception of the Social Security card) are now renumbered.

According to a press release issued by the USCIS, in an attempt to make the revised Form I-9 more user friendly, all of the latest changes to the form will be included in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Although the changes to Form I-9 are minimal, with the new administration’s heightened immigration enforcement, employers should consider reviewing their I-9 procedures and records to ensure compliance with the Immigration Reform and Control Act (“IRCA”). If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

On June 26, 2017, the final day of its judicial term before summer recess, the United States Supreme Court addressed the Trump Administration’s hotly contested travel ban. The Supreme Court issued a per curiam decision on June 26, 2017 allowing the federal government to implement a portion of the travel ban set forth in Executive Order 13780 (Protect­ing the Nation From Foreign Terrorist Entry Into the United States), which was signed on March 6, 2017.  Recall, EO 13780 called for the suspension on the admission of all refugees for 120 days and also sought to impose a 90-day “temporary pause” on the admission of foreign nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Supreme Court’s June 26^th decision marks the latest move in the game of legal ping pong regarding the Trump Administration’s stated efforts to protect Americans and safeguard the nation’s security interests.  The Supreme Court will fully consider the legal arguments at stake when the fall session begins in October 2017.  For now, the Supreme Court’s decision will allow the Trump Administration to exclude foreign nationals from each of the six countries of concern, provided they have no “credible claim of a bona fide relationship with a person or entity in the United States”.  Stated differently, if a foreign national can establish the existence of a “close familial relationship” with someone already in the United States or a formal, documented relationship with an American entity, the travel ban will not apply.  It is expected that enforcement of this limited travel ban will begin on June 29, 2017, just as the nation’s peak summer travel season gets underway.

Not surprisingly, the Supreme Court’s decision leaves a number of unanswered questions regarding the meaning of the “bona fide relationship” standard.  In an effort to shed some light on this issue, the Supreme Court provided several examples of the circumstances that would satisfy the “bona fide relationship” standard:

• Individuals seeking to come to the United States to live or visit a family member (i.e., spouse, mother-in-law), though it remains to be seen just how far the federal government will go to recognize a “close” familial relationships (e.g., cousins, aunts, uncles, nieces, nephews, etc.);
• Students who have been admitted to an educational institution in the United States;
• Foreign nationals who have been extended, and have accepted, an offer of employment with a corporate entity in the United States;
• Foreign nationals who have been invited to temporarily address an American audience as lecturers; and
• Refugees who have family connections in the United States or who have connections with refugee resettlement agencies.

While the examples provided by the Supreme Court are helpful to a certain degree, they do not address all scenarios that may arise for foreign nationals seeking to enter into the United States in the immediate future. Nevertheless, it appears that individuals who currently hold valid immigrant and/or non-immigrant visas will not be subject to the travel ban.

******

In response to the Supreme Court’s decision, the Department of Homeland Security issued a statement on June 27, 2017 noting that DHS’ implementation of EO 13780 will be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry”.

We will continue to apprise clients regarding any developments as they unfold.

Late Wednesday, just hours before President Trump’s new travel ban was scheduled to take effect, the U.S. District Court for the District of Hawaii granted a temporary restraining order that prevents the implementation of Executive Order 13780.  Recall, President Trump issued Executive Order 13780, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO 13780”), on March 6, 2017.  The temporary restraining order issued by the U.S. District Court in Hawaii prohibits the federal government from enforcing EO 13780 on a nationwide basis. As you know from our March 7, 2017 blog post, EO 13780 sought to suspend the entry of non-immigrants from Iran, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period if they were not physically present in the U.S. on March 16, 2017, did not have a valid visa at 5:00 pm EST on January 27, 2017, and did not have a valid visa on March 16, 2017.  EO 13780 also sought to suspend the entire refugee admission program for 120 days and to cap the admission of refugees to no more than 50,000 for fiscal year 2017.  As a result of the decision of the U.S. District Court in Hawaii on March 15, foreign nationals hailing from any of the restricted countries may continue to travel to the U.S. until further notice. At a rally in Nashville, Tennessee on Wednesday evening, President Trump criticized the ruling issued by the U.S. District Court in Hawaii and further declared that his administration will fight to uphold EO 13780, including the travel ban, all the way to the Supreme Court, if necessary.  Given the fluidity of this situation, we continue to advise that individuals from the restricted countries who are presently in the U.S. forego any unnecessary international travel at this time.

We previously reported that on January 27, 2017, the Trump administration issued Executive Order 13769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.”  EO 13769 suspends the entire U.S. refugee admission system for 120 days, the Syrian refugee program indefinitely, and the entry of immigrants and non-immigrants from seven designated countries of concern for an initial period of 90 days.  Exactly one week later, on February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order that prohibits the federal government from enforcing EO 13769 on a nationwide basis. On February 4, 2017, the Department of Homeland Security ("DHS") issued a statement announcing that "in accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order . . .” and that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.”  In addition, all airlines and terminal operators have been notified to permit the boarding of all passengers without regard to nationality. Similarly, the Department of State (“DOS”) confirmed that all visas that had been provisionally revoked pursuant to EO 13769 have now been reinstated and are valid once again. In response to these developments, the Trump administration announced that it would file an emergency stay of the order “at the earliest possible time.”  Late in the day on February 4, the Department of Justice (“DOJ”) filed a formal notice of appeal with the United States Court of Appeals for the Ninth Circuit.  The appeal sought to resume the travel ban by requesting an emergency stay of the decision issued by the U.S. District Court for the Western District of Washington.  Early this morning (Sunday, February 5), the Ninth Circuit Court of Appeals issued an initial decision denying the DOJ’s emergency request.  However, the federal appeals court has also asked both parties to brief their respective legal arguments before rendering its final decision.  For now, the travel ban remains suspended. Developments from this past week have demonstrated that the interpretations and implementation of EO 13769 continue to fluctuate and evolve.  Accordingly, individuals from the seven designated countries of concern who are currently in the United States would be well-advised not to travel outside of the United States until the issues surrounding EO 13769 have been clearly settled by the judicial system.