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Melissa Allchin

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This summer SCOTUS published three major decisions impacting workplace immigration decisions. Two of the decisions may require employers to shift their strategies for managing foreign-national talent, and the third essentially preserves the status quo.

Below we outline the impact of the decisions on US-based employers:

1. SCOTUS strengthens the doctrine of consular nonreviewability limiting options for employers and visa applicants who receive unfavorable denial

      In Department of State v. Munoz (July 21, 2024), SCOTUS ruled that US citizens do not have a fundamental liberty interest in their noncitizen spouses’ ability to come to the US.

      In Munoz, the spouse of a US citizen was denied an immigrant visa by a US consulate on ground that the consulate had “reason to believe” the spouse would participate in illicit activity if admitted to the US. The consular denial provided limited explanation for the decision – simply citing the “reason to believe” statute (a legal standard under which foreign nationals can be barred from entering the country if USCIS has a “reason to believe” the individual has been involved in illicit or illegal conduct) – and was extremely slow in providing this basis for its decision. The US citizen petitioning spouse sought judicial review and argued that she had a liberty interest in the matter given her US citizenship and that the impact of the consular decision deprived her of the fundamental right to marriage. But after receiving a favorable decision by the Ninth Circuit Court of Appeals, the Supreme Court reversed and held that no such liberty interest exists in this context.

      While the facts of Munoz did not involve a US employer, the underlying doctrine at issue – the ability to challenge a consulate’s decision on a visa – has direct implications to US employers who seek employment-based visas for employees. In reversing the Ninth Circuit’s decision, the Court upheld and arguably expanded the doctrine of “consular nonreviewability” – i.e. the inability to challenge the decision of a consular officer in US federal court.

      Takeaway:

      Munoz leaves employers and visa applicants with limited, if any, means for judicial redress in the event of an incorrect or unjust consular decision. Other avenues for challenging an unfavorable decision exist – including requesting supervisory review, review from the State Department’s Legal Net, or re-filing the application – but these fall short of and lack the teeth of formal judicial review.Continue Reading Triple Feature: SCOTUS Issues 3 Blockbuster Immigration Decisions This Summer Impacting Employers and Foreign National Employers

      We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of key updates from Brazil, Italy, Luxembourg, Singapore, the United Kingdom, and the United States.

      Click here to view.


      We are thrilled to announced that the latest edition of The Global Employer: Focus on Global Immigration & Mobility is now available! This handy, go-to desk reference guide includes:

      • An overview of key global immigration and mobility issues to consider related to immigration, employment, compensation and employee benefits, income taxes and social insurance, and global
      …

      We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of key updates from Brazil, China, Italy, South Africa, Spain, the United Kingdom, and more.

      Click here to view.

      Special thanks to co-presenters Maria Cecilia Reyes, Victor Estanislao Marina and Katherine Ninanya.

      Many employers have made getting their arms around their remote work populations a new year’s resolution for 2024. Simultaneously, a growing number of jurisdictions are offering Digital Nomad Visas to attract foreign nationals — and some countries are actually shifting…

      We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of key updates from Australia, China, Hong Kong, Italy, Philippines, South Africa, United Kingdom, United States and Vietnam.

      Click here to view.

      On October 30, 2023, President Biden issued a 63-page Executive Order to define the trajectory of artificial intelligence adoption, governance and usage within the United States government. The Executive Order outlines eight guiding principles and priorities for US federal agencies to adhere to as they adopt, govern and use AI. While safety and security are predictably high on the list, so too is a desire to make America a leader in the AI industry including AI development by the federal government. While executive orders are not a statute or regulation and do not require confirmation by Congress, they are binding and can have the force of law, usually based on existing statutory powers.

      Instruction to Federal Agencies and Impact on Non-Governmental Entities

      The Order directs a majority of federal agencies to address AI’s specific implications for their sectors, setting varied timelines ranging from 30 to 365 days for each applicable agency to implement specific requirements set forth in the Order.

      The actions required of the federal agencies will impact non-government entities in a number of ways, because agencies will seek to impose contractual obligations to implement provisions of the Order or invoke statutory powers under the Defense Production Act for the national defense and the protection of critical infrastructure, including: (i) introducing reporting and other obligations for technology providers (both foundational model providers and IaaS providers); (ii) adding requirements for entities that work with the federal government in a contracting capacity; and (iii) influencing overall AI policy development.Continue Reading Biden’s Wide-Ranging Executive Order on Artificial Intelligence Sets Stage For Regulation, Investment, Oversight and Accountability

      With special thanks to co-presenters Daniel Urdiain, Pamela Mafuz and Ludmilla Maurer.

      In our latest Global Immigration and Mobility Video chat, our on-the-ground immigration and mobility attorneys in the US, Mexico, Spain and Germany explore digital nomad visas by providing a brief overview of the requirements, process, tax and social security consequences, what…

      We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of immigration and mobility alerts from around the world.

      Please click here to view.

      Together we navigated operational challenges caused by the pandemic, and together we will weather this. What follows is information and practical advice for employers concerned with satisfying their payroll obligations in the near term in the face of their bank falling into receivership.

      • Identify the “universe” of employment-related expenses. This will include payroll, benefits, bonus and commission comp, insurance, and severance obligations.
      • Understand that liability for unpaid wages can be significant. For example, liability in California includes:
        • Back payment of any unpaid wage amounts that employees prove they were legally entitled to.
        • Interest of up to 10% of the unpaid wages.
        • Penalties for late payment of wages equal to: (i) $100 for the first violation; and (ii) for each subsequent violation, $200 plus 25% of the amount unlawfully withheld. Penalties may apply for each pay period that wages remain unpaid.
        • If any employees leave the company after the payday date, the company can be liable for waiting time penalties for late payment of final wages. Waiting time penalties are equal to 1 day’s wages for each day an employee’s final wages are unpaid, up to a maximum penalty of 30 days’ wages.
        • Companies may be required to pay employees’ attorney’s fees if the employees prevail in litigation.
        • Criminal liability for wage theft if the act is “intentional.” Felony cases are punishable by up to 3 years in prison.  

      Continue Reading Navigating Fallout From a Bank Receivership | Practical Tips for US Employers