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DHS to Stop Workplace Immigration Raids

DHS to Stop Workplace Immigration Raids

​The U.S. Department of Homeland Security (DHS) announced that it will put an end to mass immigration enforcement operations at worksites, a mechanism used by the Trump administration.Homeland Security Secretary Alejandro Mayorkas said in a memo issued Oct. 12, “Under the previous administration, these resource-intensive operations resulted in the simultaneous arrest of hundreds of workers and were used as a tool by exploitative employers to suppress and retaliate against workers’ assertion of labor laws.”Mayorkas has instead instructed the immigration agencies under DHS to develop proposals offering deportation protection to undocumented workers who report their employers for labor abuses.”This does not mean employers no longer need to complete those pesky I-9s,” said Andrew Wilson, a partner at Lippes Mathias Wexler Friedman and co-leader of the firm’s Immigration Practice in Buffalo, N.Y. “And no, this does not mean that worksite enforcement is no longer an important policy goal of the DHS. Thorough compliance procedures are still important. For the time being, however, it does mean that the DHS no longer views mass worksite enforcement raids as an effective measure in combatting illegal employment.”We’ve rounded up resources and articles from SHRM Online and other sources to provide context.History of ReversalsWorkplace raids were a hallmark of both the Trump administration and the George W. Bush administration, which attempted to pass comprehensive immigration reform. The Obama administration, which also tried to pass an immigration overhaul, prioritized paperwork audits of employee files rather than conduct immigration roundups. (The New York Times)Few Employers Charged with Illegal HiringData shows that criminal prosecutions of employers who knowingly hire undocumented workers are rare, and most that are convicted receive little more than token punishment.(SHRM Online)’Constructive Knowledge’ of Unlawful EmploymentHaving “constructive knowledge” of an employee’s unauthorized work status is a serious violation but defining constructive knowledge can be tricky for HR professionals.(SHRM Online)How to Prepare for Workplace Immigration AuditsEmployers can avoid big fines by developing a comprehensive I-9 compliance program, which should include training, self-audits and an investigation-day action plan.(SHRM Online) …

Required Vaccinations to Replace U.S. COVID-19 Travel Bans

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Required Vaccinations to Replace U.S. COVID-19 Travel Bans

​The Biden administration plans to rescind the COVID-19 travel bans imposed in 2020 and replace them with vaccination and testing requirements to enter the U.S., beginning in November.Claire Nilson, head of the global mobility and immigration team in the London office of Faegre Drinker, explained that since early in the pandemic, travelers who had been in Brazil, China, the European Schengen countries, India, Iran, Ireland, South Africa and the United Kingdom during the preceding 14 days were banned from flying directly into the United States unless they were either a U.S. citizen or green card holder, or they first applied for and received an exception waiver.The Schengen Area countries covered by the COVID-19 ban include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.The Biden administration’s COVID-19 response coordinator Jeff Zients said that fully vaccinated travelers will need to complete pre-departure testing within three days prior to their departure to the U.S., but that they will not be required to quarantine upon their arrival.He said the Centers for Disease Control and Prevention (CDC) will determine the definition of “fully vaccinated” and what vaccines qualify for the policy.”So far, the U.S. government has not clarified what will constitute suitable evidence of vaccination and which COVID-19 vaccines will be recognized beyond the three already authorized in the United States [Pfizer, Moderna and Johnson & Johnson],” Nilson said.Notably, hundreds of millions of people worldwide received the AstraZeneca vaccine, which has been recognized by the World Health Organization but has not won approval from U.S. regulators. The CDC will also issue a contact tracing order requiring airlines to collect contact information from each U.S.-bound traveler. “This will enable the CDC and state and local public health officials to follow up with inbound travelers and those around them if someone has potentially been exposed to COVID-19,” Zients said.Alka Bahal, a partner in the Morristown, N.J., office of Fox Rothschild, said that it’s not just leisure travelers who are happy with the Biden administration’s announcement; the move will have a significant positive impact on U.S. business immigration.”Many foreign nationals in the U.S. on work visas have remained restricted to the U.S. due to the travel bans, having been unable to visit home due to fears of being unable to return,” Bahal said. “Hopefully, the lifting of the bans will be soon followed by the resumption of normal visa processing at U.S. consulates and embassies worldwide. This will further increase visa processing by enabling foreign nationals who have been unable to obtain their first U.S. work visas to now obtain them and come to the U.S. to work.”For the past 18 months, virtually all visitors from the banned countries have been prohibited from traveling directly to the United States. Some resorted to workarounds such as spending two weeks in an intermediate country like Mexico or the Dominican Republic, before obtaining a negative coronavirus test and then entering the U.S.For foreign …

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USCIS Proposes Redo for DACA Program

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USCIS Proposes Redo for DACA Program

​The long-beleaguered Deferred Action for Childhood Arrivals program (DACA)—originally created by a policy memo in 2012—will be reestablished through regulation, U.S. Citizenship and Immigration Services (USCIS) announced.USCIS issued the proposed rule Sept. 28 and is allowing for a 60-day public-comment period. DACA protects over 600,000 young immigrants, known as Dreamers, from deportation and provides them work authorization. The program has been embroiled in a yearslong battle over its legality and is currently in limbo after a federal judge in Texas found it to be unlawful in July. The proposed rule aims to address the judge’s concerns, but mainly would codify the existing DACA policy. The program would carry the same eligibility criteria, including that individuals must have arrived in the U.S. before their 16th birthday; been born on or after June 16, 1981; have continuously resided in the U.S. since June 15, 2007; are currently in school or have graduated or honorably served in the military; have not been convicted of a felony; and do not pose a threat to national security or public safety.The program would continue to grant two years of deportation protection and a two-year work permit for a $495 fee. And recipients could leave the country under a program known as advance parole, which gives them permission to return.Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, an advocacy group in Washington, D.C., explained that the proposal creates formal regulatory language for granting DACA requests, and for removing someone from the program.The proposed rule also attempts to address some of the concerns raised by U.S. District Judge Andrew Hanen, of the Southern District of Texas. DACA applicants could decide to pay a lower fee of $85 to only receive deportation protection without an accompanying work permit, which has been one of the more controversial aspects of the program.”The regulation makes work authorization no longer a ‘part of’ DACA—but still available,” Reichlin-Melnick said. “The regulation would sever deferred action from automatic employment authorization, allowing applicants to apply for just DACA if they wanted, without the work permit. USCIS is basically recognizing that the work permit portion of DACA could potentially be struck down, and saying that they think if that happens, they may still be able to protect people with DACA from being arrested and deported.” The proposed rule would not change the validity of anyone’s current DACA work authorization.”Today, there are more than 400,000 DACA recipients currently working in the United States—over half are essential workers and 41,700 are in health care,” said Candy Marshall, president of TheDream.US, a college and career success organization for undocumented students.”Codifying the DACA program will enable employers across the country to retain current employees and to access this growing talent pool as they seek to rebuild after the pandemic,” said Marshall, formerly the chief human resources officer at the Bill & Melinda Gates Foundation.Congressional FixJudge Hanen concluded that the Obama administration circumvented procedural requirements when initially implementing the DACA program via agency memo, rather than going through the formal regulatory process. …

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