UK Business Immigration – New Law on Right to Work Checks for Workers: Makes Sense in Principle but Tricky in Practice
The government has announced the latest instalment in its ‘crackdown’ on illegal working by extending right to work checks to businesses hiring gig economy and zero-hours workers. In principle, this is logical and reasonable – prevention of illegal working should rightly apply to anyone working in the UK regardless of their worker status label. However, any change in the law must be supported by carefully-drafted guidance (which hasn’t always been the case in this area). Many businesses who fall foul of the UK’s complex right to work rules are certainly not ‘rogue’ employers, but just in dire need of clear guidelines on what they need to do.
Under s.15 and s.21 of the Immigration, Asylum and Nationality Act 2006, employment of an adult subject to immigration control who does not have permission to work or is working in breach of their visa conditions exposes the employer to a civil penalty (currently set at a maximum of £60,000 per person) and/or a range of other sanctions including an unlimited fine, business closure, director disqualification and potential prison sentence of up to 5 years. S.25(b) IANA specifies that employment for these purposes is “employment under a contract of service or apprenticeship, whether express or implied and whether oral or written”. UK businesses are therefore currently only at risk of sanctions in relation to employees working illegally but the Home Office has been trying to close this loophole for some time.
In September 2024, the Home Office updated its Right to work checks: an employer’s guide to state: “Where the worker is not your direct employee (for example, if they’re self-employed), you are not required to establish a statutory excuse, but you must still carry out these checks (and retain evidence you have done so) to comply with your sponsor duties.”
As this appeared to conflict with the provisions of IANA, we contacted the Home Office to clarify what this wording meant for organisations who do not hold a sponsor licence. Wording later on in the same guidance states that employers are strongly encouraged to carry out checks even on those workers who are not employees and on contractors and labour providers but stops short of imposing any obligations.
In February just gone, the same part of the employer’s guide was amended to read: “Where the worker is not your direct employee (for example, if they’re self-employed), you are not required to establish a statutory excuse. However, you must still carry out these checks (and retain evidence you have done so) if you are a sponsor licence holder and are sponsoring the worker to ensure compliance with your sponsor duties.” In other words, no checks are required on workers, other than in circumstances where they are sponsored.
The government’s latest announcement will require it to change IANA and given the specific reference to gig economy and zero hours workers in the announcement, it will also need to give some careful thought to the following:
Will the changes only apply to gig economy and zero hours workers or to all other workers including agency workers and freelancers in any type of business? How do you define a ‘gig economy worker’?
Will employers be required to carry out checks on existing workers or just those hired on or after the date of implementation?
Will right to work checks apply to the genuinely self-employed and if not, how will employers, let alone the Home Office, differentiate them from workers? Dozens of decided cases around the gig economy, including at the highest levels within the UK legal system, have failed to come up with a definitive test for what separates a worker from the genuinely self-employed. There is also no definition at law of “gig economy”. So a business which uses outsourced labour faces a nearly impossible choice (maybe that’s the point — it’s hard to tell). It has to decide between (i) maintaining the line that its associates are fully self-employed and so their right to work compliance is not its responsibility on the one hand or (ii) doing the checks to avoid time at HM’s pleasure, so tacitly accepting that they are workers, which then pulls down upon itself all sorts of liabilities in relation to holiday pay, auto-enrolment contributions, minimum wage, etc., that it could perhaps otherwise have avoided. Damned either way, it seems.
Could we end up with a requirement to carry out checks on anyone who provides any sort of service for payment regardless of status – your plumber, builder, taxi driver etc? No doubt the Home Office would laugh at the idea as patently silly, as indeed it is, but that is the logical extension of these new requirements unless and until there is the clearest line drawn in law between who is covered and who is not – just saying “workers and gig economy people” won’t cut it for that purpose as what is covered by one is still being litigated and the other has no definition at all. It is also unclear whether there will be any overlap in law or principle with the tax position – for example, if the supply to you of a particular contractor is caught by IR35 (in other words, he is deemed to be doing work akin to that of an employee), would that mean that these new duties apply? Or if he is a sole trader working in his own name, do these new obligations depend on whether he can show that you are just one of a number of customers for his trade or profession or on how much work he does for you in a week, a month or a year? Will we see a resurgence of the issue of economic dependency? This all sounds a bit shrill, but unless there is proper clarity attached to these extended obligations, operating them will be a nightmare for employers. The line between worker and fully self-employed is extremely thin and can depend on relatively minute facts, the relevance of which could easily escape the average employer. The only completely safe course will be to make as many of those workers into Schedule E employees as possible, so putting the obligation to do the checks beyond argument but at the same time imposing significant costs and loss of flexibility on businesses. It is of course government policy to push as many people as it can into tax-paying employment (hence the proposal to drop worker status altogether in due course) so this may be seen as consistent with that direction of travel. The issue will be how much of a mess is created for employers in the meantime, and in the absence of that very clear guidance, the answer to that seems likely to be “far more than could ever have been thought necessary”.
Will the obligation still sit with labour providers to carry out checks on the employees it provides to its clients or will both parties need to carry out their own checks? If the latter, will both parties be liable for a civil penalty in the event of illegal working? We foresee some interesting contractual tussles over where that liability may fall as between the parties.
What action should employers take?
Although the planned changes appear to be aimed at employers which intentionally breach their immigration duties, all organisations with overseas workers are likely to be affected, since the Home Office has shown limited ability to distinguish effectively between the politically-essential “rogue employers” and those doing their best in a bewildering blizzard of law and guidance — compliance action and fines are often issued to well-intentioned and generally diligent sponsors which have unwittingly fallen foul of their increasingly byzantine immigration obligations. Of the hundreds of cases we have advised on (many of them for large, professional organisations), almost all arise out of a genuine oversight on the part of the employer, combined with an often understandable lack of awareness of the prevention of illegal working rules. Whilst ignorance is rightly not a valid defence to compliance, the UK immigration system remains complex and constantly changing. Employers should not assume for a moment that the stated focus on intentional breach will avail them in any way.
It’s not clear when the changes will be implemented but UK businesses which hire anyone who is not an employee should:
Consider the extent of their non-employed work force and the checks that are currently done on them
Review relevant right to work procedures and the resources needed to extend them to workers (and, potentially, the self-employed)
Given the Home Office’s ongoing ‘crackdown’, ensure that their right to work procedures (for the entire workforce, including employees) are clear, robust and effective
The UK’s right to work rules are not straightforward, nor the penalties for tripping over them trivial – training and legal support is a worthwhile investment.
What’s Changing to H-1B Cap Gap for F-1 Students?
Takeaways
The new DHS rule extends the H-1B Cap Gap period from 10.1 to 04.1.
F-1 students with pending or approved H-1B petitions benefit from this extension.
Employers must adjust their processes to comply with the new rule.
The Department of Homeland Security (DHS) has published a final rule (89 FR 10354) that significantly changes the H-1B Cap Gap period. This rule automatically extends the duration of status and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C) for F-1 students who are beneficiaries of H-1B Change of Status petitions.
The key change is that the automatic extension end date has been moved from Oct. 1 to April 1 of the fiscal year for which H-1B status is being requested or until the validity start date of the approved petition, whichever is earlier. This adjustment aims to provide a smoother transition for F-1 students moving to H-1B status.
This change is particularly beneficial for F-1 students, who often face a gap in their employment authorization between the end of their academic program and the start of their H-1B employment. Extending the Cap Gap period to April 1 allows students to maintain their status and continue working without interruption.
This new rule aligns with the broader efforts to modernize and improve the efficiency of the H-1B program, as outlined in the DHS’s final rule published on Dec. 18, 2024.
Employers should take note of these changes and adjust their processes accordingly. It is crucial to ensure that all relevant documentation reflects the new Cap Gap period and that any necessary updates are made to employment verification systems.
For more detailed information, refer to the DHS’s final rule and the USCIS news release. These resources provide comprehensive guidance on the new regulations and their implications for both employers and F-1 students.
USCIS Begins Announcing H-1B Registration Selections for FY 2026
U.S. Citizenship and Immigration Services (USCIS) has begun notifying petitioners of selected registrations for this year’s H-1B cap lottery. This marks a pivotal step in the FY 2026 H-1B visa process, as registrants who have been selected are now eligible to proceed with filing their H-1B cap-subject petitions on April 1 (earliest date).
The H-1B program remains one of the most sought-after avenues for U.S. employers to hire highly skilled foreign professionals in specialized fields such as technology, engineering, health care, and others. This year’s process follows the electronic registration system implemented by USCIS, which streamlines the initial stage of the H-1B lottery by allowing employers to submit registrations electronically for a chance to be considered in the cap selection.
For those whose registrations have been selected, the next step is to prepare and submit a complete H-1B petition to USCIS within the designated filing period. Petitioners are encouraged to ensure that all required documentation is accurate and submitted in a timely manner to avoid delays or denials.
For those whose registrations were not selected, USCIS may hold additional lotteries if the agency determines that it has not received enough petitions to meet the annual H-1B cap. Petitioners should monitor updates from USCIS in the coming months.
Employers and registrants may review their accounts on the USCIS online portal to check the status of their registrations. Notifications of selection are being issued electronically, and selected registrants will see their status updated to “Selected.” Those who have not been selected will see a status of “Not Selected” once the selection period has concluded.
The H-1B visa process is an opportunity for U.S. employers to address skills gaps and access global talent, but it is also a highly competitive process. Those with questions about preparing a petition or navigating next steps should consider consulting with an experienced immigration attorney or advisor to ensure compliance and maximize their chances of success.
For more information about the H-1B program and updates from USCIS, visit the official USCIS H-1B Cap Season webpage.
Parole Programs for Cuban, Haitian, Nicaraguan, and Venezuelan Nationals Terminated by DHS
On March 25, 2025, the U.S. Department of Homeland Security (DHS) published a notice in the Federal Register announcing the immediate termination of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) parole programs. As a result, approximately 532,000 individuals in the United States who were paroled under these programs will lose their parole authorizations and any associated benefits, including work authorizations, within thirty days of the date of publication of the notice, or by April 24, 2025.
Quick Hits
On March 25, 2025, the U.S. Department of Homeland Security (DHS) announced the immediate termination of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) parole programs, affecting approximately 532,000 individuals who will lose their parole and associated benefits by April 24, 2025.
The Trump administration has decided to end these programs, citing a lack of significant public benefit and inconsistency with foreign policy goals.
Because CHNV beneficiaries will lose ancillary benefits such as employment authorization, employers will need to reverify the work authorization of affected employees by the April 24, 2025, deadline.
Background
Parole allows noncitizens who may otherwise be inadmissible to enter the United States for a temporary period and for a specific purpose. Section 212(d)(5)(A) of the Immigration and Nationality Act authorizes the secretary of homeland security, at the secretary’s discretion, to “parole into the United States temporarily under such conditions as [the secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.”
The Biden administration implemented a temporary parole program for Venezuelan nationals in October 2022 to discourage irregular border crossings and later expanded the parole programs to include Cuban, Haitian, and Nicaraguan nationals in January 2023. The CHNV parole programs permitted up to 30,000 individuals per month from Cuba, Haiti, Nicaragua, and Venezuela to enter the United States for a period of up to two years. Until January 22, 2025, approximately 532,000 individuals arrived in the United States by air under the CHNV parole programs.
The Biden administration announced in October 2024 that it would not extend legal status for individuals permitted to enter the United States under the CHNV parole programs but encouraged CHNV beneficiaries to seek alternative immigration options. On January 20, 2025, President Donald Trump announced his intention to terminate the parole programs in Executive Order 14165, “Securing Our Borders.” Consistent with that executive order and the secretary of homeland security’s discretionary authority, Secretary Kristi Noem is now terminating the CHNV parole programs, having found the programs no longer “serve a significant public benefit, are not necessary to reduce levels of illegal immigration, … and are inconsistent with the Administration’s foreign policy goals.”
What This Means for Employers
According to the notice, any employment authorization derived through the CHNV parole programs will terminate on April 24, 2025. This will impact persons with Employment Authorization Documents (EADs) in the (c)(11) category. Individuals without a valid alternative basis to remain in the United States are expected to depart the country upon the termination of their paroles on April 24, 2025.
CHNV beneficiaries may have already updated their Form I-9s with EAD cards with a validity date beyond April 24, 2025. Employers are expected to reverify affected employees’ work authorizations by April 24, 2025, to ensure continued compliance with Form I-9 employment eligibility verification rules. However, identifying which employees are impacted by this change prior to the April 24, 2025, expiration date may be challenging, since the public interest parolee EAD category code (c)(11) is typically not entered in the I-9 form or other personnel records.
In the Federal Register notice, DHS indicated it may use the expedited removal (deportation) process for any CHNV beneficiaries who do not depart the United States or obtain another lawful status by April 24, 2025. Under sections 235(b)(1) and 212(a)(9)(A)(i) of the Immigration and Nationality Act, expedited removal orders may not be appealed, and those removed through such means are subject to a five-year bar on reentry to the United States.
A lawsuit challenging the termination of CHNV parole has been filed.
Trump Administration Terminates Humanitarian Parole for Citizens of Cuba, Haiti, Nicaragua, Venezuela
Department of Homeland Security (DHS) Secretary Kristi Noem announced the termination of humanitarian parole for citizens of Cuba, Haiti, Nicaragua, and Venezuela, also known as the CHNV program, in the Federal Register on March 25, 2025. Humanitarian parole for citizens of these countries will expire no later than 30 days from March 25, 2025, or April 24, 2025.
CHNV beneficiaries who did not file some other immigration benefit application prior to publication of the termination notice must depart the United States on or before April 24, 2025, or the expiration of their humanitarian parole, whichever date is sooner. DHS will prioritize removal of CHNV beneficiaries without pending immigration applications who remain in the United States beyond the expiration of their humanitarian parole.
DHS has determined that, after termination of the parole, the condition upon which employment authorizations were granted no longer exists, and DHS intends to revoke parole-based employment authorizations.
The CHNV program was instituted by DHS under former President Joe Biden. It allowed citizens of Cuba, Haiti, Nicaragua, and Venezuela who obtained U.S. financial sponsors to enter the United States by humanitarian parole for up to two years. Once in the United States, parolees could apply for work authorization. Humanitarian parole was renewable, however, on Oct. 4, 2024, the Biden Administration announced it would not renew the program. About 530,000 individuals benefited from the CHNV program.
Seeking to enjoin termination of the program, on Feb. 28, 2025, Haitian Bridge Alliance and several individuals affected by the termination of the CHNV program filed a lawsuit in U.S. District Court for the District of Massachusetts, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The lawsuit is pending.
Operation Allies Welcome, the humanitarian parole program for Afghanis who assisted U.S. forces during the war in Afghanistan, and Uniting for Ukraine, the humanitarian parole program for individuals fleeing the war in Ukraine, are unaffected by the latest announcement.
DHS Terminates Parole Programs
On March 25, 2025, the Department of Homeland Security (DHS) published a Federal Register notice terminating parole programs for Cuba, Haiti, Nicaragua, and Venezuela (CHNV) as of April 24, 2025, unless Secretary Kristi Noem makes an individual determination to the contrary. This is being carried out pursuant to Executive Order 14165, titled “Securing Our Borders.” The termination of these programs affects 532,000 individuals from these countries. DHS will notify affected individuals through their online myUSCIS accounts.
Unless those under a CHNV program have a separate underlying immigration status to which they can revert, they will be deemed “undocumented” and subject to expedited removal (deportation) from the United States. The subjects of expedited removal do not appear before immigration judges for full hearings, making the deportation process swift. Any work authorization issued to them will also end on April 24, 2025, even if their employment authorization documents contain later expiration dates.
Navigating E-2 Visa Processing at the US Embassy in London: What Applicants Need to Know
The E-2 visa has long been a popular option for entrepreneurs, investors, and employees seeking to live and work in the United States by investing in or working for a qualifying U.S. business. Historically, the U.S. Embassy in London has been a predictable and efficient post for processing E-2 visas, with interviews typically lasting only a few minutes and focusing on a cursory review of the application. However, recent developments have introduced significant changes to the process, requiring applicants to approach their interviews with greater preparation and awareness.
Key Changes in E-2 Visa Processing at the U.S. Embassy London
Over the past year, applicants and immigration practitioners have reported notable shifts in the E-2 visa interview process at the U.S. Embassy in London. These changes include longer interviews, more in-depth questioning, and an increase in unexpected refusals under INA 214(b). To address these concerns, representatives from the American Immigration Lawyers Association (AILA) engaged in discussions with consular leadership at the embassy. While consular officials confirmed that no changes have been made to the laws, regulations, or policy guidance governing E-2 visas, they did provide insights into procedural adjustments that may impact applicants.
1. Interview Environment
E-2 visa interviews are now conducted on a separate floor from other nonimmigrant visa classifications. Applicants are grouped with individuals undergoing Visa Control Unit interviews, which typically involve cases with potential criminal or inadmissibility issues. This setup offers limited privacy, which may add to the stress of the interview process.
2. Rotating Pool of Consular Officers
Unlike in the past, there is no dedicated E visa officer at the U.S. Embassy in London. Instead, interviews are conducted by a rotating pool of 14 consular officers, with two officers assigned to review E visa applications each day. This lack of specialization may lead to inconsistent adjudications, as officers may vary in their familiarity with E-2 visa requirements and nuances.
3. Longer and More Detailed Interviews
Interviews for E-2 corporate registrations and individual applicants are now lasting up to 30 minutes, compared to the brief interviews of the past. Applicants should be prepared to answer detailed questions about their business operations, financials, and role within the company. Examples of questions for corporate registrations include:
What is your U.K./U.S. revenue this year and last year?
Can you explain your business plan?
What were your start-up expenses, and what is their price/value?
For individual applicants, questions may focus on:
Why is your company expanding or operating in the United States?
Why are you being sent to the United States, and why can’t your U.S. colleagues cover your role?
Is your U.S. company profitable?
Will you be seeking a green card eventually?
Are you aware that an E-2 visa does not provide a pathway to a green card?
4. Increased Scrutiny
Applicants with limited business experience or those unable to provide detailed answers may face heightened scrutiny. Additionally, the embassy appears to be applying the “Buy American Hire American” (BAHA) lens, which asks applicants to justify why an American worker cannot perform their proposed U.S. job duties. This aligns with the broader “America First Policy Directive” that prioritizes U.S. workers and businesses.
Implications for Applicants
The procedural changes at the U.S. Embassy in London have implications for E-2 visa applicants:
Thorough Preparation is Essential: Applicants must be ready to discuss their business operations, financials, and role in detail. This includes having a clear understanding of their business plan, start-up expenses, and the rationale for their presence in the United States.
Risk of Refusal: Unexpected refusals under INA 214(b) have become more common. A refusal may also impact an applicant’s eligibility to visit the United States under the Visa Waiver Program (ESTA), further complicating future travel plans.
Inconsistent Adjudications: The rotating pool of consular officers may lead to variability in interview experiences and outcomes. Applicants should be prepared for a range of questions and approaches.
Key Considerations
Given the evolving landscape of E-2 visa processing in London, applicants should consider taking the following steps to maximize their chances of approval:
Work with Experienced Counsel: Consulting with an experienced immigration attorney can help ensure applications are complete, accurate, and tailored to address potential concerns.
Prepare for In-Depth Questions: Practice answering detailed questions about business operations, financials, and role within the company. Applicants should be ready to articulate why their presence in the United States is essential.
Document Everything: Provide clear and organized documentation to support an application, including financial statements, business plans, and evidence of the applicant’s qualifications.
Understand the Limitations of the E-2 Visa: Be aware that the E-2 visa does not provide a direct pathway to permanent residency (a green card). Applicants should be prepared to address this if asked during their interview.
Conclusion
The U.S. Embassy in London has introduced changes to its E-2 visa interview process, making it more rigorous and unpredictable than in the past. Applicants should consider approaching their interviews with thorough preparation, a clear understanding of their business and role, and a willingness to address detailed questions. By staying informed and working with experienced professionals, applicants can navigate these challenges and increase their chances of a successful outcome.
Navigating Uncertainty: The Plight of H-1B Visa Holders During the Trump Administration
The H-1B visa program has been a cornerstone of U.S. immigration policy, allowing skilled foreign workers to fill critical roles in industries like technology, finance, and healthcare. However, under the Trump administration, H-1B visa holders faced unprecedented uncertainty due to evolving immigration policies, increased scrutiny, and unpredictable enforcement measures. This environment of instability not only affected the lives and careers of visa holders but also had far-reaching implications for U.S. employers and the broader economy.
Under the Trump administration, immigration policies underwent significant shifts, with the H-1B program experiencing some of the most notable impacts. Key changes included:
Increased Denials and RFEs (Requests for Evidence): Visa applicants faced a rising number of RFEs, with many receiving requests for additional documentation even after their applications had been initially approved. This led to prolonged processing times and heightened anxiety among applicants.
Redefinition of “Specialty Occupations”: The administration sought to narrow the definition of eligible H-1B occupations, making it more challenging for certain professionals to qualify. This redefinition particularly affected fields like software engineering, where job roles were often subject to subjective scrutiny.
Executive Orders and Travel Restrictions: Policies like the “Buy American, Hire American” executive order aimed to protect U.S. jobs but inadvertently increased the hurdles for H-1B holders. Travel restrictions further exacerbated the situation, leaving many workers stranded abroad or unable to visit their home countries without risking re-entry.
Impact on Workers and Employers
The uncertainty surrounding H-1B visas created a ripple effect throughout the U.S. economy. For visa holders, the fear of sudden job loss or visa denial became a constant concern. Since H-1B visas are tied to specific employers, any disruption—such as layoffs or company shutdowns—could result in the immediate loss of legal status, forcing individuals and their families to leave the country on short notice.
Employers, particularly in the tech sector, also faced challenges. Companies like Amazon, Google, and Microsoft have historically relied on H-1B talent to drive innovation and address skill shortages. The unpredictability of the visa process made it harder for businesses to plan for the future, potentially slowing down projects and reducing competitiveness on a global scale.
Legal Challenges and a Pathway Forward
The shifting landscape prompted legal challenges and advocacy efforts aimed at protecting H-1B visa holders. Immigration attorneys and organizations like the American Immigration Lawyers Association (AILA) worked tirelessly to challenge restrictive policies in court. Several lawsuits sought to overturn arbitrary denials and procedural changes, with some achieving temporary injunctions that provided brief reprieves for visa holders.
In response to the uncertainty, many H-1B holders began exploring alternative pathways to secure their status in the U.S. Options included:
Transitioning to Green Cards: Some visa holders pursued employment-based green cards, though this path was often fraught with its own set of challenges, including lengthy wait times due to per-country caps.
Switching to Other Visa Categories: In certain cases, individuals were able to transition to other visa types, such as the O-1 visa for individuals with extraordinary abilities.
Considering Relocation to Other Countries: With Canada actively courting skilled immigrants through its Global Talent Stream program, some H-1B holders opted to relocate north, attracted by more predictable immigration policies and shorter processing times.
The Future, Broader Implications
The uncertainty surrounding the H-1B program had broader implications beyond individual visa holders. It underscored the critical role of immigration in maintaining U.S. leadership in science, technology, and innovation. Restrictive policies risked driving top talent to other countries, potentially undermining the nation’s competitive edge in key industries.
The H-1B visa program has long been a symbol of opportunity for skilled foreign workers seeking to build a future in the United States. Yet, under the Trump administration, that opportunity was marred by uncertainty, fear, and instability. As the nation moves forward, it is crucial to strike a balance between protecting American jobs and fostering an immigration system that welcomes and retains global talent. Only by addressing these challenges can the U.S. continue to thrive as a hub of innovation and economic growth.
Big Law Redefined: Immigration Insights Episode 12 | I-9 Compliance: Protecting Your Business in a Changing Regulatory Landscape [Podcast]
In this episode of Greenberg Traurig’s Big Law Redefined Podcast Immigration Insights Series, Kate Kalmykov and Miriam Thompson delve into the topic of I-9 compliance, a concern for employers in light of evolving government regulations and enforcement priorities.
From understanding the basics of the I-9 form and its completion requirements to navigating E-Verify, electronic systems, audits, and penalties, the discussion provides actionable insights for employers seeking to avoid costly mistakes.
Miriam also shares key strategies for preparing for ICE raids, addressing tentative non-confirmations, and ensuring compliance during mergers and acquisitions.
Whether you’re a small business or a multinational corporation, this episode equips you with the tools to strengthen your I-9 processes and help ensure your organization is compliant in today’s enforcement climate.
Beltway Buzz, March 21, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
DEI EOs “Unblocked.” T. Scott Kelly and Zachary V. Zagger have the details on a decision by the U.S. Court of Appeals for the Fourth Circuit that will allow the federal government to enforce its DEI-related executive orders (EO) (EO 14151 and EO 14173) while a decision on the merits awaits appeal. This means that the federal government can once again, for example, require federal contractors to certify that they do not operate diversity, equity, and inclusion (DEI) programs that violate federal antidiscrimination laws. It also means that the U.S. attorney general can pursue legal challenges to private-sector DEI programs “that constitute illegal discrimination or preferences.” Other legal challenges to the DEI executive orders are still pending.
EEOC Issues Technical Assistance on DEI. The U.S. Equal Employment Opportunity Commission (EEOC) this week issued two technical assistance documents, “What You Should Know About DEI-Related Discrimination At Work” and “What To Do If You Experience Discrimination Related To DEI At Work.” The first document, in particular, cautions employers that an “initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” The document then provides examples of DEI-related workplace policies and practices that the EEOC believes may violate Title VII of the Civil Rights Act of 1964. In addition to discrimination in hiring, firing, and compensation, the document notes that job duties, access to training, mentorship programs, and employee resource groups should also not be motivated in whole or in part on race, sex, or other protected characteristics. Nonnie L. Shivers has the specifics.
Secretary of State Asserts Control Over Immigration Rulemaking Process. On March 14, 2025, Secretary of State Marco Rubio published a notice in the Federal Register that will likely have a significant impact on the Trump administration’s immigration-related rulemaking protocols. In the notice, Secretary Rubio states that his primary foreign affairs duty is “to protect the people of the United States from any threats originating from foreign actors or from foreign soil” which includes policies related to the “protection and travel of U.S. citizens overseas, visa operations and visa issuance.” Rubio concludes with the following:
I hereby determine that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act, 5 U.S.C. 553, 554. (Emphasis added.)
The “foreign affairs” exemption in the Administrative Procedure Act allows the federal government to avoid the normal notice and comment requirements of the rulemaking process. The U.S. Department of State has claimed this exemption regularly over the years, usually when going through the standard rulemaking process would result in some undesirable international consequence. Moreover, during Donald Trump’s first presidency, the administration also claimed this exemption relating to certain policy changes but was rejected by at least two federal courts. Secretary Rubio’s notice, at least on its face, would try to expand the use of this exemption beyond the State Department and extend it to other agencies involved in immigration rulemaking processes, such as the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS).
Democratic FTC Commissioners Fired. This week, President Trump fired Alvaro Bedoya and Rebecca Kelly Slaughter, the two remaining Democratic commissioners on the Federal Trade Commission (FTC). FTC Chair Andrew Ferguson and fellow Republican Melissa Holyoak remain on the Commission, which can still bring cases, even with three vacant commissioner seats. Like the firings of NLRB member Gwynne Wilcox and EEOC commissioners Charlotte Burrows and Jocelyn Samuels, the removal of Bedoya and Slaughter is a further example of the administration’s efforts to assert executive branch authority over federal agency commissions and boards.
Trump Rescinds More Biden-Era EOs. On March 14, 2025, President Trump issued an executive order entitled, “Additional Rescissions of Harmful Executive Orders and Actions,” which rescinds eighteen executive orders, memoranda, and determinations issued by President Joe Biden. The rescinded EOs relating to employment policy are as follows:
“Increasing the Minimum Wage for Federal Contractors” (EO 14026, April 27, 2021). This EO set the minimum wage applicable to covered federal contractor employees at $17.75 per hour as of the beginning of this year (pursuant to a provision that provides for annual increases based on the Consumer Price Index). However, President Barack Obama’s Executive Order 13658, which also increases the minimum wage for covered contractors, remains in place. While still unclear at this time, federal minimum wage requirements could be $7.25 per hour or $13.30 per hour, depending on whether the contract was covered under the Biden or Obama EO. Clarification from the DOL on this would be helpful.
“Advancing Worker Empowerment, Rights, and High Labor Standards Globally” (Presidential Memorandum, November 16, 2023). This memorandum encouraged the promotion of workers’ rights (e.g., collective bargaining, safe workplaces, wage and hour protections, and prohibiting forced labor ) as they related to the United States’ “foreign, international development, trade, climate, and global economic policy priorities.”
“Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums” (EO 14119, March 6, 2024 ). This EO directed federal agencies to promote opportunities to contract with employers that participated in union-supported registered apprenticeship programs.
“Investing in America and Investing in American Workers” (EO 14126, September 6, 2024). This EO encouraged federal agencies to include certain labor and employment standards in federal grants and contracts. This came to be known colloquially as the “Good Jobs” executive order.
FMCS on the Brink. Also, on March 14, 2025, President Trump issued an executive order entitled, “Continuing the Reduction of the Federal Bureaucracy,” that “continues the reduction in the elements of the Federal bureaucracy that the President has determined are unnecessary.” The Federal Mediation and Conciliation Service (FMCS) is one of seven agencies ordered to eliminate its “non-statutory components and functions … to the maximum extent consistent with applicable law.” Pursuant to the EO, the FMCS (as well as the other agencies listed) must “submit a report to the Director of the Office of Management and Budget confirming full compliance with this order and explaining which components or functions of the governmental entity, if any, are statutorily required and to what extent” by March 21, 2025. The FMCS homepage currently displays the following message: “We are reviewing recent Executive Orders for immediate implementation. The requirements outlined in these orders may affect some services or information currently provided on this website.”
House Committee Gets Its Start. On March 21, 1867, the U.S. House of Representatives did something that is near and dear to our hearts here at the Buzz: it established the Committee on Education and Labor. Following the Civil War, Congress created the committee to address issues arising from the country’s rapid industrial growth. In 1883, the committee was divided into two separate committees, the Committee on Education and the Committee on Labor. After several decades, the Legislative Reorganization Act of 1946 joined the two committees together again as the Committee on Education and Labor. The committee has existed in that form ever since, though beginning in 1995, the name has been tweaked depending on the party in the majority. When Democrats are in the House majority, it is called the “Committee on Education and Labor.” When Republicans are in the House majority, the committee is referred to as the “Committee on Education and the Workforce.”
Pennsylvania’s Proposed Ban on Driver’s Licenses for Undocumented Immigrants: What It Means for the Commonwealth
Pennsylvania is once again at the center of a heated political debate—this time over a proposed constitutional amendment that could ban undocumented immigrants from obtaining driver’s licenses. The proposal, which has sparked polarized responses, is expected to stir discussions in the state legislature and beyond. In this post, we’ll explore the background of the amendment, the political arguments on both sides, and the potential economic, legal, and societal impacts if the amendment is enacted.
Background: Understanding the Proposed Amendment
The proposed amendment seeks to change Pennsylvania’s constitution to prohibit undocumented immigrants from obtaining driver’s licenses. This amendment would mark a shift in state policy, as some states currently allow undocumented residents to obtain licenses as part of efforts to enhance road safety and improve identification records. The push for the amendment has largely been driven by Republican lawmakers who argue that the change is necessary to uphold immigration laws and protect public resources. By elevating the issue to the level of a constitutional amendment, proponents aim to make it more difficult for future legislatures to reverse the policy.
The Political Debate: Pros and Cons
As with many immigration-related issues, the debate over driver’s licenses for undocumented immigrants has divided opinions along political lines.
Arguments in Favor of the Amendment
Upholding Immigration Laws: Supporters argue that granting licenses to undocumented immigrants undermines federal immigration laws and could incentivize illegal immigration.
Preventing Voter Fraud: Some proponents claim that driver’s licenses could be used to improperly access voting systems, despite existing safeguards.
Resource Allocation: Advocates contend that public resources should prioritize legal residents and citizens.
Arguments Against the Amendment
Enhancing Road Safety: Opponents point out that allowing undocumented immigrants to obtain licenses can improve road safety by ensuring that all drivers are tested, insured, and educated about traffic laws.
Economic Impact: Undocumented immigrants play a vital role in Pennsylvania’s economy, particularly in industries like agriculture and construction. Restricting access to driver’s licenses could limit their ability to work and contribute to local economies.
Humanitarian Concerns: Critics argue that the amendment could create unnecessary hardships for immigrant families who rely on driving to access essential services, including healthcare, education, and employment.
Potential Economic and Societal Impacts
The implications of the proposed amendment could be far-reaching, affecting various aspects of life in Pennsylvania.
Workforce Participation: Limiting access to driver’s licenses could reduce the mobility of undocumented workers, making it harder for employers to fill essential jobs. This, in turn, could impact productivity and economic growth.
Public Safety: Studies from other states have shown that providing driver’s licenses to undocumented immigrants can lead to fewer hit-and-run accidents and lower overall crash rates. Without access to licenses, some immigrants may drive without proper training or insurance, potentially increasing safety risks.
Social Integration: Driver’s licenses are often a key tool for social integration, allowing individuals to participate more fully in their communities. The amendment could deepen divides and contribute to a sense of marginalization among immigrant populations.
Legal Implications: The Road Ahead
For the proposed amendment to become law, it must go through a multi-step process. First, it needs to be approved in two consecutive sessions of the Pennsylvania General Assembly. Then, it must be presented to voters in a statewide referendum. This process could take several years, providing ample opportunity for public debate and advocacy on both sides.
If the amendment is ultimately approved, Pennsylvania would join a growing number of states that have implemented restrictions on driver’s licenses for undocumented immigrants. However, legal challenges could arise, particularly if the amendment is seen as conflicting with federal policies or constitutional protections.
So…What’s at Stake for Pennsylvania?
The debate over driver’s licenses for undocumented immigrants touches on complex issues of law, economics, and social justice. As the legislative process unfolds, Pennsylvanians will need to weigh the potential benefits and drawbacks of the proposed amendment and consider its broader implications for the state’s future.
Regardless of the outcome, one thing is clear: this issue is not just about driver’s licenses—it’s about who we are as a society and how we choose to balance the principles of law enforcement, economic prosperity, and human dignity.
SCOTUS to Consider Emergency Applications to Lift Nationwide Injunctions on EO Ending Birthright Citizenship?
The Trump Administration urged the U.S. Supreme Court to limit nationwide injunctions blocking enforcement of the executive order (EO) to end birthright citizenship.
Following his inauguration on Jan. 20, 2025, President Donald Trump signed an EO directing federal agencies to refuse recognition of U.S. citizenship for children born in the United States to mothers who are in the country without authorization or on nonimmigrant visas, if the father is not a U.S. citizen or green card holder.
Judges in Maryland, Massachusetts, and Washington state have issued nationwide injunctions barring the government from implementing the EO.
President Trump appealed to the Supreme Court to limit these nationwide injunctions, arguing that they disrupt the judicial process and overreach into executive branch operations. The administration’s March 13 emergency applications asked that the court orders be limited to the specific individuals and organizations involved in the lawsuits. They contend that there is no justification for the injunctions to apply nationwide, particularly to the 18 states that support the EO.
The Supreme Court’s decision could potentially lead to a ruling that restricts district courts from issuing nationwide injunctions. The administration also argues that the injunctions improperly interfere with the executive branch’s ability to develop guidance for implementing the EO. If the justices do not agree to limit the injunctions to individuals and organizations, the administration has requested that they be restricted to the plaintiff states.