Immigration & Mobility

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The regulatory landscape for immigration compliance is constantly evolving. To protect and keep top talent and to avoid tangles with the law, US multinational employers must stay on top of the latest legal decisions and guidance.

In this blog series, our team of Global Immigration and Mobility experts will share significant legal updates and practical strategies for maintaining compliance. In our first post, we highlight the possible implications of the SEC v. Jarkesy case for immigration courts, and highlight the DOJ’s recently-released Fact Sheet addressing I-9 compliance when using electronic platforms.

1. Challenge to the Validity of Administrative Judges Could Have a Major Impact on the DOJ’s Ability to Investigate Employers for Immigration Misconduct

    A case currently pending in the US Supreme Court could have high stakes for administrative law judges in the immigration context–and, depending on the outcome, could theoretically open the door for challenging the ability of the DOJ to investigate employers for immigration-based discrimination.

    Background

    On November 29, 2023, the US Supreme Court held oral argument in SEC v. Jarkesy. Jarkesy, an investment advisor, had been found guilty by an ALJ of securities law violations. As a result, he was fined, barred from securities industry activities, and his firm was required to repay investors. Jarkesy challenged the SEC’s enforcement action at the 5th Circuit, which agreed with Jarkesy, and the case was appealed to the Supreme Court. Notably, a core question before the Court is whether Congress’ decision to allow ALJs to be removed only for “good cause” violates Article II of the Constitution (requiring the President to “take Care that the Laws be faithfully executed.”)

    Possible impact on ALJs responsible for deciding cases involving immigration-based discrimination by employers

    During oral arguments, conservative justices expressed doubts about the constitutionality of the SEC’s current process, where ALJs handle violations and defendants are not entitled to a jury trial.

    The arguments that could potentially weaken the authority of ALJs in the Jarkesy case–i.e., that defendants are unconstitutionally deprived of a jury trial when administrative judges address infractions–could also be extended to ALJs sitting within the Office of the Chief Administrative Hearing Officer (OCAHO), potentially depriving them of their ability to adjudicate cases. Defendants are already using this argument in ongoing cases in an effort to invalidate the DOJ’s immigration-related proceedings against them.

    If the Supreme Court’s decision leads to the removal of ALJs at the SEC, it is likely that the authority of ALJs at other agencies will face subsequent legal challenges, including enforcement actions brought against employers by the DOJ for allegations of: (i) citizenship-based discrimination; (ii) national-origin-based discrimination; (iii) document abuse (relating to I-9s); and (iv) retaliation.Continue Reading Beyond Borders: How US Multinational Employers Can Master Immigration Compliance

    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.

    • Enhanced risk for bias suits targeting remote staff for layoffs
    • More ADA claims alleging mishandling of accommodation requests
    • Changes to digital nomad visas in different jurisdictions around the globe, and
    • The critical need to identify where all employees are located when the
    …

    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…

    What Canadian Employers Need to Know to Ring in 2024

    In 2023, we helped Canadian employers overcome a host of new challenges across the employment law landscape. Many companies started the year with difficult cost-cutting decisions and hybrid work challenges. We’ve worked hard to keep our clients ahead of the curve on these issues, as well…

    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.

    In 2023, we helped US employers overcome a host of new challenges across the employment law landscape. Many companies started the year with difficult cost-cutting decisions and hybrid work challenges. More recently, employers faced challenges around intense political discourse boiling over in the workplace. We’ve worked hard to keep our clients ahead of the curve on these…

    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…