Episode 29: Regulatory agenda, EAD guidance, remote work compliance

It’s June 22, and this is your BAL Immigration Report.

• The U.S. government publishes its semiannual regulatory agenda.
• S. Citizenship and Immigration Services issues employment authorization document guidance.
• Remote work compliance considerations.

“A lot of employers were playing catch-up as employees were moving away from their primary area of employment.”

—Mark Yelich, BAL Partner

U.S. news

Semiannual regulatory agenda published

The U.S. government has published its semiannual regulatory agenda, offering an indication of the Biden administration’s top immigration priorities in the coming months. The Department of Labor has moved a proposed rule regarding PERM and H-1B wage protections to the long-term regulatory agenda. The DOL is targeting June 2024 for publication of the rule. Other key items include proposed changes to modernize the H-1B program, USCIS fee increases and the finalization of a rule allowing alternatives to physical document examinations in the Form I-9 process.

Employment authorization policy clarification

USCIS has issued policy guidance to clarify eligibility for employment authorization documents in compelling circumstances. To be eligible for an initial or renewal application for employment authorization, individuals must meet a number of requirements, which are specified in the USCIS Policy Manual. Compelling circumstances-based employment authorization documents are issued on a discretionary basis to address individuals who are in particularly difficult situations, such as serious illness or disability, employer dispute and retaliation, and other harms to the applicant or employer.

U.S. news roundup

• S. Customs and Border Protection launched the Electronic System for Travel Authorization mobile app.
• The Department of Homeland Security announced it will exempt fees for re-parole and work authorization renewals for certain Afghan nationals.
• DHS submitted a final rule that would allow it to provide alternatives to physical document examination for White House Office of Management and Budget review.

Spotlight

Part one of our conversation with BAL Partner Mark Yelich and BAL Senior Associate Jonathan Nagel on remote work compliance considerations.

BAL Immigration Report: BAL Partner Mark Yelich and BAL Senior Associate Jonathan Nagel joined Deloitte’s Lorraine Cohen for a panel on remote work last week at the SHRM annual conference in Las Vegas. Yelich and Nagel joined the BAL Immigration Report for a follow-up conversation. We’ll play part one of that conversation this week. We started by asking Nagel about the general immigration considerations for employers with remote workers.

Nagel: The first way to answer this question is there’s probably more than we could possibly fit into this podcast, or even into a very long presentation, or even possibly a daylong seminar. But the highlights that we would want our clients to consider — and what HR and mobility folks should start to consider — are a few things, mostly and firstly around, does that person have a right to work in whatever country or location that they are in? If they have some type of right to work, which is normally some type of visa or permit, then we need to start discussing what are the limitations or the restrictions or the amendments or the notifications that need to be filed to keep that person compliant. And once we hit that wall and we overcome that, we need to then start considering what are the long-term ramifications and what are we looking at for the individual? Is this supposed to be a permanent role? Is this just a temporary thing? And how to kind of build an immigration case around the individual. Outside of that though, there’s a much, much larger corporate view that we need to take in a policy and process view where you’re not just going to have one employee over the course of your entire company’s lifetime that has a remote work question. It’s only going to grow.

BAL: Nagel and Yelich both said companies need to be thinking about more than just immigration rules.

Nagel: Yes, we can focus on the individual and their work authorization and what to do with them. But before we get there, we need to look at what is your policy, how will you build it, how will you operationalize it, how will you then enforce it — and all of that becomes a much larger conversation that, to be quite frank, steps away from immigration and touches on almost every aspect of HR.

Yelich: Yeah, and for the companies that I talk to, that policy question is really top of mind for them. They want to make sure that their program follows best practices and good governance in general, meaning they need to know where all of their employees are currently residing and working, from a program integrity standpoint, from a risk and compliance standpoint, and also to fairly and evenly treat all of their employees and make sure that they’re applying their policies for remote work in a consistent manner and treating exceptions on a case-by-case basis. You’re always going to have compelling circumstances that might call for those types of exceptions, but companies really want to make sure that they’re enforcing standards and applying rules in a consistent manner across their workforce.

BAL: We asked Yelich about the compliance questions facing employers in the United States.

Yelich: I would focus on probably the two most common scenarios where we see remote work impacting those in the U.S. on a nonimmigrant or temporary visa status. As we look back at the last several years, first, at the onset of the pandemic, we had employees scattering throughout their states or across the United States, and employers were playing a little bit of catch-up to determine and assess whether any kind of immigration action, any kind of filings needed to take place to ensure that these employees remained work authorized, compliant and that the company was abiding by all the relevant immigration rules. We saw this a lot in the H-1B context, which is not only specific to an employer that’s sponsoring that employee but also specific to that job and their place of employment. So the H-1B visa is very location-specific, and before someone on that visa can move to another area to work, companies need to assess whether or not an amendment filing needs to be submitted to USCIS, the immigration benefits agency. And a lot of employers were playing catch-up as employees were moving away from their primary area of employment.

Then, as we emerged post-pandemic, same thing, employees were returning back to where they had been living a couple of years ago or perhaps moving on to third location. So employers again needed to assess whether or not these new filings were required. Then, related to the H-1B in the green card context: In terms of long-term permanent residence in the U.S. and employment authorization, many companies sponsor their employees for green cards through the PERM labor certification process, and the underlying assumption of PERM is that a permanent job offer exists in a specific location for that particular job. So as employees were moving similar to the H-1B context, employers needed to assess, do we do a second PERM? Do we do a third PERM? They were constantly balancing and managing these trade-offs between immigration, sponsorship, compliance and overall budget and cost. Is this something that companies wanted to continue paying for? We’ve seen recently with post-pandemic, a lot of companies enforcing return-to-office policies where you needed to come to the office a certain number of days and you needed to be tied to a location, and this is the pendulum swinging in the other direction in terms of some companies being a little bit more forceful and trying to enforce in-office presence and then tying their immigration program and policies to that.

BAL: Next week on the BAL Immigration Report, we’ll hear more of Yelich and Nagel’s conversation, including considerations for employers outside the United States and how a patchwork of laws and regulations have failed to keep up with modern work realities. That’s next week on the BAL Immigration Report.

Global news

Additional ETA guidance

The United Kingdom has provided additional guidance for their Electronic Travel Authorization, or ETA, system. Beginning later this year, Qatari nationals will be required to apply for ETA, followed by nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and the United Arab Emirates in February 2024.

By the end of 2024, ETA will be required for visitors who do not need a short-stay visa, including travelers from Europe, Australia and the U.S., among other countries. ETA will be valid for two years for multiple entries into the U.K. for tourism and certain study, family visit or business purposes.

Australia exempts U.K. nationals from labor market testing

In Australia, officials have exempted U.K. nationals and permanent residents from labor market testing requirements. Employers in Australia intending to hire U.K. nationals and permanent residents no longer need to conduct a labor market test before submitting Temporary Skill Shortage visa applications.

The government took this action to streamline the application process and reduce processing times. Authorities expect processing times for Temporary Skill Shortage visas will be reduced by approximately one month because of the exemption.

Emiratization deadline extended

In the United Arab Emirates, the government has extended the deadline for employers to meet the semiannual Emiratization requirement. Employers now have until July 7 to reach compliance. Authorities delayed the deadline in consideration of the upcoming Eid al-Adha holiday.

Beginning July 8, noncompliant employers will face a substantial fine. Emiratization targets require employers with 50 or more employees to increase the number of Emirati employees in skilled positions by 1% every six months, with an expectation that they reach a 10% Emiratization rate by the end of 2026.

Global news roundup

• The Canadian government expanded the Francophone Mobility Program and extended it for two years.
• Ireland removed the supplementary application form requirement for Indian nationals.
• Portugal launched an online consular services platform.

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