Compliance News Flash - June 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 once again extended its flexibility regarding the physical presence requirement of the Form I-9. Employers operating 100% remotely in light of COVID-19 are not required to review an employee’s identity and employment authorization documents in the employee’s physical presence (as is required for purposes of section 2 completion of the Form I-9). Originally set to expire on May 19, 2020 and previously extended until June 18, 2020, the agency’s enforcement flexibility has been extended for an additional 30 days such that it will now expire on July 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 and here to read more.
  • After already suspending approval of green card requests to immigrants abroad seeking permanent residence in the United States, U.S. Citizenship and Immigration Services (USCIS) has also apparently placed a “general hold” on green card applications filed by those living in the United States. Applications of medical providers and applications that concern an “emergent or sensitive matter” will continue to be considered. USCIS says the hold on processing green card applications from current U.S. residents stems from the temporary suspension of in-person services during the COVID-19 pandemic, and that its current priority is to resume naturalization ceremonies. Click here and here to read more.
  • In a landmark decision, the United States Supreme Court ruled in a 6-3 vote that employment discrimination on the basis of sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. The Court’s four liberal justices were joined by Chief Justice John Roberts and Justice Neil Gorsuch to form the majority. Title VII of the 1964 Civil Rights Act prohibits discrimination in the workplace on the basis of race, religion, national origin and sex. At issue before the Court was whether prohibiting discrimination on the basis of “sex” also prohibits discrimination on the basis of sexual orientation and general identity and expression, with the Court finding in the affirmative. The majority writes, “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." Click here to read the decision and click here to read AGG’s recap.
  • In another high profile decision, the United States Supreme Court ruled in a 5-4 vote that the Trump Administration cannot carry out its plan to rescind the Deferred Action for Childhood Arrivals (DACA) program, holding that the decision to rescind the DACA program was arbitrary and capricious under the Administrative Procedure Act. The program, established in 2012, protects undocumented immigrants who are brought to the United States as children from deportation and allows them to work legally in the United States. The Court’s decision is specific to the Trump administration’s attempt to rescind the program, and does not foreclose future attempts to challenge the legality of the program. The decision, penned by Chief Justice Roberts, states in a nutshell that the Trump administration did not properly complete the paperwork when it decided to end the DACA program, and did not properly explain its reasoning for ending the program. Click here to read the decision.
  • United States Citizenship and Immigration Services (USCIS) will reportedly begin sending furlough notices to approximately three-quarters of its employees, warning them a 30-day furlough will begin in July if Congress does not provide emergency funding to the agency. The reason this could be happening is that USCIS is generally a fee-funded agency, and due to on-going restrictions on immigration by the Trump administration, the agency is receiving less funding through applications and petitions. If the furloughs go into effect, USCIS is expected to extend them in 30-day increments until it either receives an appropriation from Congress or it can collect additional money through a fee increase. USCIS is asking Congress for $1.2 billion in emergency funding and permission to implement a 10% increase in its fees to reimburse the funding. Click here to read more.
  • New Jersey laboratory software provider, LabVantage Solutions, Inc., has filed suit against the Department of Homeland Security (DHS) for denying an L-1B nonimmigrant visa to an Indian national seeking to transfer to its company’s U.S. office. According to LabVantage, the denial undermines pharmaceutical companies’ development of products to fight the coronavirus pandemic. USCIS claims the employee lacks specialized knowledge despite his five years of experience working with the company’s proprietary systems at its India office. Click here to read more.

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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