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October 30, 2020


Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, which includes current news briefs relevant to background screening, immigration and data privacy, for the benefit and interest of our clients as well as employers and consumer reporting agencies generally.

  • The Department of Homeland Security (DHS) announced a proposed rule that would replace the H-1B lottery process with a system that would prioritize workers based on salary, with higher paid workers getting priority over lower paid workers. The H-1B annual cap of 65,000 visas with an additional 20,000 for applicants with advanced degrees, would remain, but the method of prioritization within each cap would be based on salary rather than a lottery. Various business groups are opposing the proposed rule, citing concerns that it will impede access to talent for employers that tend to pay lower salaries. Acting DHS Deputy Secretary Ken Cuccinelli defended the proposed rule, saying the current use of random selection to allocate H-1B visas makes it hard for businesses to plan their hiring and hurts American workers by bringing in lower-paid foreign labor. The text of the proposed rule was approved on October 28th and will be published in the Federal Register shortly. The public comment period will last 30 days from the date of publication in the Federal Register. Click here to read the proposed rule. 
  • U.S. Citizenship and Immigration Services (USCIS) clarifies employer and employee obligations when addressing an E-Verify Tentative Nonconfirmation (TNC). E-Verify requires enrolled employers take action on TNCs for their employees within ten (10) federal government working days. Starting on November 5, 2020, E-Verify will begin notifying employers not in compliance with this legal requirement to take action to meet the requirement. This means that the employer must notify the employee of the TNC within the 10 days; and, the employee must decide whether to take action on the TNC by the 10th day after the TNC is issued. In the past, some employers may have believed they were compliant if they provided employees with a reasonable amount of time to respond to the TNC. Click here to read more. 
  • The California Privacy Rights Act (CPRA), sometimes referred to as CCPA 2.0, will appear on the California ballot on November 3rd as Proposition 24. If it passes, it will amend and expand certain provisions of the California Consumer Privacy Act (CCPA) beginning on its effective date, January 1, 2023. A few of the changes CPRA would make to California privacy law include (i) establishing the California Privacy Protection Agency which would become California’s data privacy regulator, instead of the Attorney General; (ii) creating a new category of data called “sensitive personal information;” (iii) imposing data minimization and data retention obligations on businesses; and (iv) granting consumers the right to correct inaccurate personal information. Current polling shows the CPRA is likely to pass on Election Day. Click here to read more. 
  • The Federal Data Protection and Information Commissioner (FDPIC) of Switzerland issued an opinion concluding that the Swiss-U.S. Privacy Shield Framework does not provide an adequate level of protection for data transfers from Switzerland to the United States pursuant to the Swiss Federal Act on Data Protection (FADP). The Commissioner’s opinion follows the recent Schrems II ruling by the Court of Justice of the European Union (CJEU) which invalidated the comparable EU-U.S. Privacy Shield Framework. The U.S. Department of Commerce has stated that the Swiss Commissioner’s opinion does not relieve participants in the Swiss-U.S. Privacy Shield of their obligations under the Swiss-U.S. Privacy Shield Framework. Click here and here to read more.
  • The Department of Commerce, in conjunction with the Department of Justice and the Office of the Director of National Intelligence, has released a White Paper entitled “Information on U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems II.” The paper addresses concerns raised in the Schrems II decision over U.S. intelligence agencies’ access to data pursuant to Executive Order 12333 and Section 702 of the Foreign Intelligence Surveillance Act (FISA 702). The paper begins by stating that most companies doing business in the EU do not deal in data that is of any interest to U.S. intelligence agencies. It goes on to discusses what the Department of Commerce considers the “robust limits and safeguards in the United States pertaining to government access to data.” Click here to read more.
Contact Authors

Montserrat C. Miller
Partner, Atlanta Office

Erin E. Doyle
Associate, Atlanta 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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