AGG Compliance News Flash

For next year’s H-1B cap U.S. Citizenship and Immigration Services (USCIS) will implement a new registration process for employers seeking to sponsor a foreign worker. U.S. employers seeking to obtain H-1B nonimmigrant classification on behalf of an individual subject to the H-1B numerical allocations will submit a registration during a designated registration period. The annual initial registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year—which is April 1, 2020 (six months before the start of the fiscal year). The plan is, after the end of the initial registration period, if USCIS has received more registrations than needed to meet the projected number of registrations to reach the regular cap, they will randomly select a sufficient number of registrations, at which time those employers can submit an H-1B petition on behalf of a worker. USCIS is currently accepting public comments about the H-1B Registration Tool until August 26, 2019. To recap, this means that starting with next year’s H-1B cap, employers will need to register first, be selected, and then submit an H-1B petition. Click here and click here to read more.

A major airline settled a lawsuit for alleged violations of the Fair Credit Reporting Act (FCRA) and California law (ICRAA / CCRAA) regarding the notice provided to job applicants alerting them to a background check. This notice is often called the “disclosure and authorization notice.” The allegation being that the airline violated the FCRA because the notice to job applicants that a background check would be run was not a “standalone disclosure” because it contained extraneous information about state rights and medical information. The class settlement is for $2.3 million and the judge granted final approval of the class settlement on July 16, 2019 (click here to read more). I recently did a webinar as part of AmericanChecked’s Lunch Box Learning Webinar Series. One topic I address during the webinar includes the disclosure and authorization notice and steps employers can take toward creating a legally sufficient notice for background screening purposes. The FCRA requires that the notice provided to job applicants be “clear and conspicuous” and a “standalone disclosure,” and the job applicant must provide written authorization for the background check. (15 U.S.C. § 1681b(b)(2)(A)(i)-(ii)) Click here to listen to the on-demand webinar.

Many organizations doing business in the European Union (EU) or that deal with personal data related to EU data subjects have been implementing cookie consent mechanisms and cookies policies over the past several years. The UK’s ICO recently published new guidance on the use of cookies and similar technologies. As a general rule, cookies on an organization’s website require user consent (implied consent is not sufficient) and users must be provided information explaining cookie activities. Click here to read more about the guidance, including proposed compliant consent mechanisms.

USCIS released a list of accomplishments on the 2nd Anniversary of the Buy American and Hire American Executive Order. It is an interesting read for immigration practitioners, employers who sponsor foreign workers, and beneficiaries of immigration benefits. For instance, USCIS believes it is protecting U.S. workers and their wages by not giving deference to prior approvals when adjudicating extension requests involving the same parties and underlying facts as the initial determination. For example, an employer may file an H-1B extension for an employee and no deference will be given to the fact that the worker is currently in H-1B status. Click here to read more. The USCIS Policy Memorandum on Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status can be accessed by clicking here. Meaning, if you are an employer and wondering why you are receiving Requests for Evidence (RFE) from USCIS for extensions, this lack of deference may be partly to blame.