Effective October 2, 2020 employers and immigrant workers can expect changes when filing employment-based petitions with U.S. Citizenship and Immigration Services (USCIS).  Employers will see higher government filing fees, different versions of forms, and changes to the premium processing program.

New Fees

On average, fees will increase approximately 20% for immigration filings. To view all the fee changes, click here for the Final Rule in the Federal Register.

  • H-1B specialty occupation petition filing fee will increase from $460 to $555 (21% increase)
  • L-1A and L-1B intracompany transfer petition filing fee will increase from $460 to $805 (75% increase)
  • I-140 immigrant petition filing fee will decrease from $700 to $555 (21% decrease)
  • I-765 application for employment authorization (non-DACA) will increase from $410 to $550 (34% increase)

Applications postmarked after October 2, 2020 will be subject to the increased fees.

NOTE – two lawsuits have been filed against the final USCIS fee rule.  One in the U.S. District Court for the Northern District of California and another in the U.S. District Court for the District of Columbia.  It is possible that the fees could be enjoined.

Premium Processing Changes

While the premium processing fee will not change (currently $1,440), the government is giving itself more time to review the case.  The timeframe will change from 15 calendar days to 15 business days.   That means “business days” will mean days on which the federal government is open for business.

New Forms

Effective October 2, 2020, USCIS has indicated that, for petitions and applications postmarked on or after October 2, 2020, it will only accept the NEW version of the form.  New employment-based forms include those filed for petitions filed under the E, H-1B, L and TN classifications.  The “preview” the new Form I-129, Petition for a Nonimmigrant Worker click here. Note that the Form I-129 is being separated into several new forms and, as of less than one week before the new forms must be submitted, USCIS has not yet posted the revised forms. What is available now is a “preview” only.  Also, the Form I-765, Application for Employment Authorization is being revised too. Click here to view the “preview” Form I-765.

Have questions, contact the Immigration Team at Arnall Golden Gregory.

Two updates that companies may find helpful regarding standard contractual clauses for cross-border transfers of personal data post invalidation of the EU-US Privacy Shield program.

Guidance from EU Data Protection Authorities

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.

FAQ Guidance from the EDPB

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.

On July 16, 2020, the Court of Justice of the European Union invalidated the EU-U.S. Privacy Shield program.

Click here for the decision and here for the accompanying press release.

The Court concluded that (i) the EU-U.S. Privacy Shield program (“Privacy Shield”) does not provide adequate safeguards and the European Commission’s adequacy decision which facilitates the ability of participating companies to transfer personal data from the European Union (EU) to the United States is invalid; and (ii) Standard Contractual Clauses (SCCs) remain a valid mechanism for such transfers, although a case-by-case evaluation of their sufficiency may be required by local data protection authorities as well as controllers and processors.

Read more about the judgement and next steps related to standard contractual clauses for cross-border transfers of personal data to the United States in the Alert I prepared along with my colleagues Kevin Coy and Erin Doyle. Click here to read our Alert.

F and M students attending schools operating entirely online during the fall 2020 semester may not take a full online course load and remain in the United States.  This is the latest news from the Student and Exchange Visitor Program (SEVP) issued in a Broadcast Message (click here) to schools. Immigration and Customs Enforcement (ICE) posted this online (click here).

SEVP modifications related to online courses

Any flexibility that the SEVP allowed due to COVID-19 during the spring and summer semesters due to COVID-19 is being modified and restricted for the fall 2020 semester.  The flexibility related to online courses since many schools switched to online courses in response to COVID-19.  SEVP allowed F and M students to take more online courses than normally allowed for purposes of maintaining a “full course of study” and still maintain their immigration status in the United States.

Here are three scenarios F-1 students will encounter as they prepare to start the fall 2020 semester and have questions about maintaining their lawful status in the United States.

  • Attending schools operating entirely online.
  • Attending schools operating under normal in-person classes.
  • Attending schools adopting a hybrid model (with a mixture of online and in-person classes).

According to SEVP, F and M students attending schools operating entirely online may not take a full online course load and remain in the United States.  Furthermore, visas will not be issued to students enrolled in schools and/or programs that are fully online for the fall semester nor will students be permitted to enter the United States if their courses are all online due to COVID-19. Granted, this is somewhat of a moot point since all U.S. consular posts remain closed and not issuing F-1 visa stamps.

What is the rule regarding online classes?

F-1 students may take no more than the equivalent of one class or three credits per semester of online or distance education (8 C.F.R. § 214.2(f)(6)(i)(G)). Said differently, F-1 students can only take a maximum of one class or three credits hours online per semester.  Therefore, for those F-1 students whose schools are operating under normal in-person classes for the fall semester, this applies to you.

What can an F-1 student in the United States do if their fall semester will be entirely online?

According to SEVP these students must depart the United States or transfer to a school with in-person instruction.  Advice that is more practical is to understand how your school is responding to COVID-19 and whether classes will be online, in-person, or a combination of both for the fall semester.  Speak with your Designated School Official (DSO) about issuance of this new guidance by SEVP, its impact on your program, and issuance of a new Form I-20.  This is especially important if your school is adopting a hybrid model, which includes online and in-person classes.  At this time, SEVP will allow F-1 students to take more than one class or three credit hours online under a hybrid model. However, your school must certify to SEVP through the Form I-20 that the program is not entirely online, that you are not taking an entirely online course load, and that you are taking the minimum number of online classes required to make normal progress in your degree program. One exception, this flexibility does not apply to F-1 students in English language training programs.

Next steps

The Department of Homeland Security (DHS) will publish a Temporary Final Rule in the Federal Register.  In the meantime, it sent this Broadcast Message (click here) to all SEVIS users on July 6, 2020 regarding the issuance of new Forms I-20.

Do you have questions or comments relating to this posting? Please feel free to contact me at montserrat.miller@agg.com.

Additional guidance offered to address the question of how to handle consumer disputes under the Fair Credit Reporting Act (FCRA). The Consumer Financial Protection Bureau (CFPB) issued a Compliance Aid to assist in interpreting the consumer reporting requirements of the CARES Act as well as the CFPB’s Policy Statement on Supervisory and Enforcement Practices Regarding the Fair Credit Reporting Act (FCRA) and Regulation V in light of the CARES Act.

The Compliance Aid takes the form of ten FAQs. While the FAQs focus mostly on furnishers, one of the FAQs addresses enforcement of the statutory deadlines for completing FCRA-mandated reinvestigations by furnishers and consumer reporting agencies pursuant to section 611.

Reinvestigations Under the FCRA

Section 611 of the FCRA generally requires a background screening company (a/k/a consumer reporting agency) to conduct a reasonable reinvestigation of a consumer dispute within 30 days of receipt of the notice of dispute.  The reinvestigation must be free of charge.  A consumer may dispute the accuracy or completeness of any item of information contained in a background check report. The purpose of the reinvestigation is to determine whether the information is inaccurate or incomplete and record the current status of the information, or delete the information.

Compliance Aid and FAQ 3

Due to COVID-19 closures, a question arose as to how to handle reinvestigations when a court is closed or offering limited services such that information cannot be checked at the source. Pursuant to the FCRA, a background screening company has 30 days to handle a consumer dispute and the subsequent reinvestigation, with the only extension of time being if the consumer provides additional information during the 30-day period that is relevant to the reinvestigation (and then 15 more days may be added).

Question 3 of the FAQs indicates that consumer reporting agencies do not have an “unlimited time beyond the statutory deadlines,” must conduct reinvestigations “in a timely fashion,” and the CFPB expects consumer reporting agencies to “make good faith efforts to investigate disputes as quickly as possible when they are impacted by COVID-19.” The guidance goes on to provide an acknowledgement by the CFPB that consumer reporting agencies are “facing unique challenges” and the Compliance Aid reiterates that the agency will look at enforcement on a case-by-case basis to “evaluate individually the efforts and circumstances of each furnisher and consumer reporting agency in determining if it made good faith efforts to investigate disputes as quickly as possible.”

Takeaway from the Compliance Aid

While this additional guidance isn’t crystal clear, it does seem to reiterate the point that the CFPB will address questions around reinvestigations and the timeliness of such on a case-by-case basis, particularly with respect to enforcement actions.  Having said that, there are limits to this discretion.  One takeaway is the importance of documenting all efforts that impact reinvestigations so that at a later date it is not a guessing game as to why a reinvestigation took a certain amount of time.  The file and logs should clearly document any closures and note attempts taken as part of the reinvestigation. This isn’t the time to stick one’s head in the sand and say, “well, I tried but the court was closed.”  As FAQ 3 says, “…the Bureau believes it is appropriate to evaluate individually the efforts and circumstances of each…consumer reporting agency in determining if it made good faith efforts to investigate disputes as quickly as possible.”  In the Policy Statement issued in April 2020, the CFPB appeared to acknowledge that in some cases reinvestigations may take longer than the statutory 30-days.  In the Compliance Aid they appear to be saying, “yes, maybe in some cases a reinvestigation may take longer than 30 days due to COVID-19;” however, there limits to that discretion from an enforcement perspective.

Resources

Click here to read the Compliance Aid.

Click here to read more about the CARES Act and the related CFPB Policy Statement (click here) which was the first to address the question of how consumer reporting agencies can handle consumer disputes in light of COVID-19 restrictions that impact their ability to conduct a reinvestigation.

Do you have questions or comments relating to this posting? Please feel free to contact me at montserrat.miller@agg.com.

On June 22, 2020, President Trump suspended the immigration of skilled workers receiving H-1B, H-2B, L-1, J-1, and dependent visas for family members. President Trump indicated that he issued this proclamation to protect American jobs during the ongoing COVID-19 pandemic and an expected subsequent period of substantial unemployment. This proclamation will make it more difficult for skilled and specialized workers, multinational managers and executives, au pairs, interns, and trainees to seek entry to work in the United States.

Click here to read the entire alert that my colleagues and I drafted.  The proclamation goes into effect today and runs through the end of the year.  The proclamation impacts H-1B cap cases if the individual is outside the United States and needs to apply for an H-1B visa upon approval of their petition by U.S. Citizenship and Immigration Services.

To read about President Trump’s other immigration-related proclamations, click here and click here.

Final CCPA regulations submitted for approval and CPRA is on the November ballot in California.

The California Office of the Attorney General (OAG) submitted the final version of the California Consumer Privacy Act (CCPA) regulations to the Office of Administrative Law (OAL) for approval.

The final regulations show no substantive changes from the second set of modified regulations published on March 11, 2020. Along with the final regulations, the OAG submitted a Final Statement of Reasons which outlines changes made from the initial version to the final version of the regulations and documents the OAG’s response to individual public comments. The OAL has 30 business days, plus an additional 60 calendar days according to an Executive Order issued by the governor due to COVID-19, to determine whether the regulations satisfy all the procedural requirements of the Administrative Procedure Act (APA). Notwithstanding the extension, the Attorney General has requested that the OAL expedite its review and adhere to the statutory timeline of 30 business days.

Despite the ongoing development of the regulations, the CCPA took effect on January 1, 2020, and enforcement is slated to begin on July 1, 2020 regardless of whether the regulations have been given the OAL stamp of approval. To read AGG’s summary of the CCPA and its applicability, click here. To access the final regulations, click here.

Separately, Californians for Consumer Privacy (CCPA)–the group behind the ballot initiative seeking to amend the CCPA– announced that it had collected over 900,000 signatures to qualify the California Privacy Rights Act of 2020 (CPRA) for the November 2020 ballot.  Think of this as CCPA 2.0. The CPRA would amend the CCPA to create new and additional consumer rights.  One major change relates to enforcement.  The CPRA would establish the California Privacy Protection Agency to enforce the law, rather than the current enforcer which is the OAG. Click here and here.

The Heroes Act includes a provision which would place a temporary moratorium on the ability of consumer reporting agencies (CRAs) to furnish certain adverse information during major disasters, including during COVID-19.

Section 110401 of the Heroes Act would amend changes the CARES Act made to the Fair Credit Reporting Act (FCRA) by adding, “[n]o person may furnish any adverse item of information (except information related to a felony criminal conviction) relating to a consumer that was the result of any action or inaction that occurred during a covered period,” with “covered period” referring to the COVID-19 emergency or any major disaster.

If that sounds overly broad, it’s because it is.  Such a change would significantly impact the information employers receive when requesting an employment-related background check from their background screening vendor.  Under the FCRA, background screening providers (known as CRAs) may furnish adverse information for a period of seven (7) years, including information such as certain criminal charges, arrests (such as an active arrest warrant), misdemeanor convictions, and sanctions or disbarment actions. The language in H.R. 6800 would only allow the reporting of felony criminal convictions, which is currently allowed under the FCRA with no seven year limitation.  It would therefore take away information that employers may currently lawfully consider when evaluating a candidate for employment.

The bill also includes language that would require credit bureaus (i.e., 603(p) CRAs) and nationwide specialty CRAs to delete adverse information from consumers’ files upon request.  Meaning, they would have to delete adverse information that, but for COVID-19,would have been lawfully reportable.

H.R. 6800 now awaits consideration in the Senate, having passed in the House of Representatives in May.  If you would like to contact your Senators to voice concerns about the language in Title IV of H.R. 6800, call the U.S. Capitol Switchboard at (202) 224-3121 and ask them to connect you to your Senators offices.

Click here for the text of the bill.  The language is found in Title IV–Suspending Negative Credit Reporting and Strengthening Consumer and Investor Protections.  NOTE–the restrictive language is not limited to “credit,” as the title suggests.

At the request of the Senate Appropriations Committee, the Federal Trade Commission (FTC) submitted a report to Congress updating lawmakers on its efforts to educate consumers about their rights to dispute and correct errors in their credit reports. According to the report, the two main ways the FTC promotes credit report accuracy are education and enforcement. The FTC educates consumers and businesses by posting various resources online. On the enforcement side, the report states, the FTC has brought more than 30 actions in the last decade enforcing the Fair Credit Reporting Act (FCRA) against consumer reporting agencies, users, and furnishers. Approximately half of those cases involved allegations related to processes for handling consumer disputes of inaccurate information or procedures for ensuring the accuracy of information in consumer reports.

Click here to access the FTC report entitled Efforts to Promote Consumer Report Accuracy and Disputes.

In an important decision for employers that conduct background checks, on April 24, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed a summary judgment in favor of the employer in the case of Leonard Luna v. Hansen and Adkins Auto Transport, Inc.  The Court of Appeals held that an employer does not violate the Fair Credit Reporting Act (FCRA) by (i) providing a job applicant the disclosure at the same time as other employment materials; and (ii) failing to place the authorization in a standalone document.

FCRA Disclosure and Authorization

At issue was the FCRA required disclosure and authorization that employers must provide job applicants when conducting a background check through a third-party background screening company.  Plaintiff filed a class action alleging that the employer’s hiring process violated the FCRA’s disclosure and authorization requirements by presenting the disclosure together with other employment application materials. The FCRA requires that employers provide a “clear and conspicuous disclosure,” in writing, in a document “that consists solely of the disclosure” that a background check may be conducted AND the applicant authorizes such background check in writing.  The FCRA specifically states that the authorization may be combined with the disclosure. (FCRA § 604(b)(2)(A)(i) and (ii)).

Takeaways

The Court of Appeals made two important points relevant to the legal requirements placed on employers when conducting background checks.

  1. The plaintiff in the case took issue with the employer’s practice of providing employees with the disclosure at the same time as, but as a separate document from, other employment documents.  The Court of Appeals held that while Section 604(b)(2)(A)(i) of the FCRA requires that a disclosure be in “a document that consists solely of the disclosure,” no authority suggests that a disclosure must be distinct in time from other documents, as well.  Thus, an employer does not violate the FCRA by presenting a standalone FCRA disclosure form contemporaneously with other employment application materials.
  2. The Court of Appeals also addressed the plaintiff’s argument that the employer violated the FCRA by failing to put its authorization in a standalone document. The Court noted that while Section 604(b)(2)(A)(i) of the FCRA requires that the disclosure be in a standalone document, Section 604(b)(2)(A)(ii) of the FCRA only requires that the authorization be “in writing,” without specifying its format.

Conclusion

The Court of Appeals affirms that “an employer does not violate the Fair Credit Reporting Act by providing a FCRA disclosure with other employment materials, and by failing to place a FCRA authorization on a standalone document.” To read the opinion click here.  Therefore, as is permissible under the FCRA, an employer may combine the disclosure and the authorization into one document when presenting such to job applicants prior to conducting a background check.  And, the disclosure and authorization may be presented to job applicants along with other employment application materials.