Compliance News Flash – July 2020 #2

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Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, which includes current news briefs relevant to background screening, immigration and data privacy, for the benefit and interest of our clients as well as employers and consumer reporting agencies generally.

  • U.S. Immigration and Customs Enforcement (ICE) has confirmed that newly enrolled international students whose colleges and universities are operating entirely online for the fall 2020 semester, will not be allowed to enter the United States, but those nonimmigrant students who were actively enrolled in U.S. universities on March 9, 2020, will be allowed to remain in the U.S. regardless of whether their university is offering online, in-person, or a hybrid of online and in-person classes. In March, ICE issued guidance allowing international students to remain in the U.S. even if they were no longer taking the number of in-person courses required to maintain their status. In early July, ICE changed this guidance to say that all F-1 and M-1 students attending schools operating entirely online during the fall 2020 semester could not remain in the U.S. Click here to read about this guidance. The guidance was met with widespread opposition and after a lawsuit filed by Harvard University and Massachusetts Institute of Technology, ICE agreed to rescind it. Click here and here to read more.
  • U.S. Citizenship and Immigration Services (USCIS) has postponed its plan to furlough more than 13,000 employees until August 31, 2020. USCIS previously announced plans to furlough employees beginning on August 3, 2020 if it did not receive $1.2 billion in emergency funding from Congress. USCIS is still seeking funding from Congress, but was able to delay the furloughs. According to USCIS Deputy Director for Policy, Joseph Edlow, USCIS has recorded a revenue increase within the past few weeks and “could possibly cover its own planned expenses through the end of fiscal 2020.” USCIS is responsible for adjudicating immigration-related applications when one is seeking an immigration benefit and any furlough would significantly impact and delay processing of applications (more so than usual). Click here to read more.
  • U.S. Immigration and Customs Enforcement (ICE) has once again extended its flexibility regarding the physical presence requirement of the Form I-9. Employers operating 100% remotely due to COVID-19 are not required to review an employee’s identity and employment authorization documents in the employee’s physical presence (as is required to complete section 2 of the Form I-9). Previously extended through July 19, 2020, the agency’s enforcement flexibility has been extended for an additional 30 days such that it will now expire on August 19, 2020. Once normal operations resume, employees who were on-boarded during this time must report to their employer within three business days for in-person verification of the document(s) presented for section 2 of the Form I-9. Also, it is important for employers to understand that although the in-person requirement is currently waived if operating remotely due to COVID-19 restrictions, the Form I-9 must still be completed within three business days of hire and this waiver of the physical presence requirement is limited in duration. Click here to read about the extension and here to read the original guidance. On a related note, ICE has announced that additional extensions will not be granted to employers who were served notices of inspections (NOIs) by ICE during the month of March 2020.
  • In the wake of the Schrems II decision from the Court of Justice of the European Union (CJEU), several EU Data Protection Authorities (DPAs) have issued guidance indicating how they will interpret and enforce the decision. The decision impacts international data transfers from the European Union (EU) to the U.S., invalidating the EU-U.S. Privacy Shield and calling for enhanced scrutiny of Standard Contractual Clauses (SCCs). The DPAs have taken varying stances on the validity of SCCs ranging from deeming SCCs “generally still valid” subject to case-by-case analysis (e.g., France and Denmark), to advising companies to cease transfers to the U.S. and switch to service providers located in the EU or a third country with an adequacy determination (e.g., the Netherlands). Click here to read about the decision and here for a list of the current DPA guidance.
  • The European Data Protection Board (EDPB) has released FAQ guidance in response to the Schrems II ruling. The guidance addresses a range of topics, including the lack of a grace period for the ruling to take effect, and whether or not SCCs are a valid transfer mechanism. The EDPB states that “supplementary measures along with SCCs, following a case-by-case analysis of the circumstances surrounding the transfer, [ ] have to ensure that U.S. law does not impinge on the adequate level of protection they guarantee.” The EDPB provides almost identical guidance regarding the use of Binding Corporate Rules (BCRs). Click here to read the EDPB guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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