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Friday News Flash - April 7, 2017

Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, brought to you each Friday. This weekly update is your source for timely background screening and immigration-related news that is important to your organization.

    1. April 12, 2017 is the date organizations transferring personal data from Switzerland to the United States can self-certify to the U.S. Department of Commerce under the Swiss-U.S. Privacy Shield program. Although similar to the EU-U.S. Privacy Shield program, two important differences are that organization’s website privacy policy must reflect adherence to the Swiss-U.S. Privacy Shield Framework and the appropriate data protection authority is the Swiss Federal Data Protection and Information Commissioner (as opposed to the EU Data Protection Authorities). 

    2. For employers seeking to hire high-skilled foreign workers in H-1B status, unless you are cap-exempt, you will have to wait until next year as the H-1B cap for fiscal year 2018 (which starts in October) has been reached. That means from April 1—when U.S. Citizenship and Immigration Services (USCIS) started accepting petitions—until April 7 is all the time it took for the caps to be reached. Not surprising news, but the speed with which it happens every year demonstrates the need to reform the system to increase the number of available visas. According to USCIS they have “reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the master’s cap.” Meaning that USCIS will “reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.” Cap-exempt cases can continue to be filed with USCIS, although a reminder that premium processing is not available.

    3. Fair chance hiring legislation (aka Ban the Box) is pending in California. The bill is AB 1008 and a committee hearing is set for May 3, 2017. The bill amends the California Fair Employment and Housing Act which prohibits an employer from engaging in discriminatory employment practices. The bill “would provide it is an unlawful employment practice for an employer to include on any application for employment any question that seeks the disclosure of an applicant’s criminal history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate specified information related to prior criminal convictions….” The bill also requires individualized assessments if an employer uses criminal history information as well as requires certain disclosures. Just a reminder that Los Angeles and San Francisco both have Ban the Box ordinances. Read more here about those.

    4. Based on a series of announcements and policy memorandum issued by the Department of Homeland Security, the White House and the Department of Justice, employers and workers using the H-1B visa program can expect to see changes (for the worse). According to USCIS the measures are aimed at deterring and detecting H-1B visa fraud and abuse. Therefore, employing targeted site visits, USCIS will focus on H-1B cases (i) where they cannot validate the employer’s basic business information through commercially available data; (ii) H-1B dependent employers; and (iii) where employers petition for H-1B workers who work off-site at another company or organization’s location. The Department of Justice issued a warning to U.S. employers cautioning those petitioning for H-1B workers about discriminating against U.S. workers through the hiring of foreign workers.

    5. A federal district judge in Pennsylvania has tossed a class action accusing the Southeastern Pennsylvania Transportation Authority (SEPTA) of violating the Fair Credit Reporting Act (FCRA) by allegedly not providing a compliant FCRA disclosure and authorization form and not following the pre-adverse action process. The court ruled that plaintiffs do not have standing because they have not alleged harm, meaning they haven’t shown both “concrete and particularized injury.” Said differently, a bare procedural violation of the FCRA is not sufficient to establish standing because plaintiffs did not establish that the purported harm was “concrete.” Side bar – the plaintiffs alleged that the forms contained extraneous language, namely language inquiring about their educational and employment history, probation or parole status and job suitability. The case is Long v. Southeastern Pennsylvania Transportation Authority, case number 2:16-cv-01991, in the U.S. District Court for the Eastern District of Pennsylvania.

For more information, please contact:

 Montserrat Miller  

Montserrat C. Miller
Partner, DC Office



The information presented provides a general summary and/or recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice.
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