Universities and International Students May Still Benefit Amid Uncertain Immigration Future

Contributed by Jacqueline Lentini McCullough, February 2, 2018

After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.

President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International Education, with 45 percent of campuses reporting at least some decrease.

41338099 - celebration education graduation student success learning conceptI encourage education and university clients, and any employer hiring international students to be calm and take a breath.  One thing I have noticed about President Trump’s actions is that they have been very consistent with his campaign promises: border enforcement and bans. He wants to move to a merit-based immigration system similar to Canada and Australia.

If the U.S. does move to a merit-based immigration system, international students may gain an advantage. A merit-based system is point-based and prizes highly educated immigrants. Who would be better positioned than those who gained a U.S. college education?

In fact, Sen. Orrin Hatch and Sen. Jeff Flake introduced a bill in the U.S. Senate last week, the Immigration Innovation (I-Squared) Act of 2018, to allow as many as 195,000  H-1B visas. The proposal would increase the number of H-1B visas by 110,000 (from 85,000), while awarding U.S. advanced degree-holders expanded priority in the selection process.

As colleges regroup to recruit internationally in this context, it is recommended that they approach prospects with an eye toward the H-1B visa that international students will ultimately want to apply for.  These are students who:

  • Intend on a STEM major: Engineering majors are the safest bet.
  • Plan to work in a STEM field or true specialty occupation: Qualifying occupations include doctors, lawyers, teachers and engineers.

Unfortunately, unless a student wants to teach a foreign language, liberal arts students are unlikely to qualify for an H-1B visa.

Colleges may even want to use the possible advantage of U.S. college education in a merit-based immigration system as a recruiting point.

U.S. colleges, universities and employers can weather this intense immigration storm by staying calm and focusing their recruitment on the areas most likely to succeed with visas.

H-1B Applicants, Start Your Engines

Contributed by Jacqueline Lentini McCullough, January 31, 2018

If you are planning to file H-1B applications for your employees this year, now is the time to start the process. While the filing deadline is April 2, 2018, it’s not too early to begin the application, which involves several time consuming steps. As in recent years, the H-1B cap season may be met with an overwhelming number of petitions within a week of the April 2nd deadline. If you plan to file for an H-1B visa this year, starting early will enable us to provide your petition with the best possible shot at winning the lottery and obtaining a visa. We recommend starting to prepare the H-1B application by February 12th.


Save the Date! SmithAmundsen Complimentary Webinar – February 21st – Directives From the Board Room: Will Your HR Team Fail or Save the Day?

Join Eric Fogel and Beverly Alfon on Wednesday, February 21 at 12:00 PM CT for the latest installment of our Labor & Employment Quarterly Series. The board of directors helps develop the strategic vision and management of a business. These corporate governance directives are necessary, but can lead to unintended consequences for HR. Eric and Beverly will discuss real life situations where directives from the board room landed squarely on the shoulders of HR and how those HR teams were the hero or the failure of those situations.

Register for the webinar here!

Save the Date! SmithAmundsen Complimentary Webinar – February 1st – Is Your Employee Handbook Ready for 2018?

Join Suzanne Newcomb on Thursday, February 1st at 12:00 PM ET for a complimentary webinar on ways to ensure your employee handbook is an asset and not a liability to your organization. During the webinar Suzanne will discuss current best practices for:

  • EEO and accommodation policies and complaint procedures
  • Work rules and the shifting tide at the NLRB
  • Attendance and leave policies
  • Compensation and payroll policies
  • And more!

Register for the webinar here!

Plaintiff Petitions the Supreme Court to Hear Extended Leave ADA Case

Contributed by Carlos Arévalo, January 24, 2018

On January 18th, the plaintiff in Severson v. Heartland Woodcraft Inc. petitioned the United States Supreme Court to review his case, in which he claimed that a multi-month leave under the ADA, beyond the Family and Medical Leave Act’s (FMLA’s) mandated 12 weeks off, constitutes a reasonable accommodation.

16306823 - 3d illustration of scales of justice and gavel on orange background

Scales of justice and gavel on orange background

Back in September 2017, we reported on the seventh circuit’s decision Severson.  In the case, Severson took a twelve-week medical leave under the FMLA to deal with serious back pain. Before this leave expired, however, he notified his employer that he was scheduled to undergo back surgery and requested an additional two to three months of leave to recover from surgery. The employer denied Severson’s request, terminated his employment, and invited him to reapply when he was medically cleared to work.  Severson sued, alleging a failure to reasonably accommodate his disability.

The seventh circuit affirmed the district court’s decision and held that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation and that the employer’s denial of extended leave did not violate the ADA.  In the opinion, the court stated that an employee who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.

A month after Severson, the seventh circuit reaffirmed its position that the ADA does not require extended leave. In Golden v. Indianapolis Housing Agency, the plaintiff, who suffered from breast cancer, sought extended leave to undergo surgery. Her recovery period was expected to last as much as six months. The employer refused to grant more than four additional weeks of leave. After Golden exhausted her FMLA and the four additional weeks of leave and could not return to work, she was terminated from employment.  Just as it did in Severson, the seventh circuit held that “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”

The Supreme Court has not yet decided whether it will hear the Severson case. In the meantime, however, our September 2017 recommendations remain in effect. Once employees exhaust their leave and are unable to return, employers should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.


2018 Immigration Updates

Contributed by Sara Zorich, January 16, 2018

Deferred Action for Childhood Arrivals (DACA) Renewals Resume
As of January 13, 2018, the United States Citizenship and Immigration Services (USCIS) has announced that, due to pending litigation and a federal court order, it is going to resume accepting and processing renewals for DACA recipients including Employment Authorization Documents granting work status.  This only applies to DACA recipients who had previously been granted deferred action status and USCIS is NOT accepting first time DACA applications.

USCIS has indicated the following:

  1. If the person previously received DACA and their DACA expired on or after Sept. 5, 2016, the person may still file a DACA request as a renewal request which includes a request for extension of the person’s work authorization.
  2. If the person previously received DACA and the DACA expired before 9/5/16, the person may file a new initial DACA request including work authorization.

Employers should check the USCIS website for additional information, but this is good news for employers and employees as employees on DACA now have an avenue to once again renew their employment authorization and legal work status.

Temporary Protected Status
On November 20, 2017, the Acting Secretary of Homeland Security announced the decision to end Temporary Protected Status (TPS) for Haiti.  The transition period is for 18 months and the TPS designation will end on 7/22/19.

On January 8, 2018, the Secretary of Homeland Security announced the decision to terminate the TPS designation for El Salvador.  Again, there is an 18 month transition period and the TPS designation will terminate on 9/9/19.

These announcements will eliminate the ability for individuals from Haiti and El Salvador to apply for employment authorization documents and work authorization based on their TPS status.

If a company employs an alien authorized to work, the company must keep track and monitor the date in which an alien’s work authorization expires.  These employees require reverification.  See USCIS Handbook for employers for more information about reverification of current employees.

Federal Court Strikes Down Certain EEOC Wellness Program Regulations, Effective January 1, 2019

Contributed by Steven Jados, January 12, 2018

In a recent decision with a nation-wide effect, the U.S. District Court for the District of Columbia struck down certain provisions of the EEOC’s Wellness Program regulations.

As we have previously discussed, workplace wellness programs generally provide certain incentives to employees as part of programs intended to prevent illness and encourage healthier lifestyles.  But these programs can run afoul of various federal and state anti-discrimination laws, particularly the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), if the programs require employees to disclose private medical information under circumstances that are not truly “voluntary.”

The inherent difficulty with wellness program incentives is the notion that, at some point, a reward or penalty becomes so great that it becomes impossible to refuse.  At that point, the incentives are so coercive that the wellness program can no longer be considered voluntary under the ADA and GINA.

To assist employers with implementing ADA and GINA-compliant wellness programs, the EEOC issued regulations in May 2016 that set an upper limit on incentives (which can take the form of rewards or penalties) linked to wellness program participation of 30% of the cost of employee-only health care coverage.  Under the regulations, the EEOC considered wellness programs that complied with the 30% incentive threshold as falling within the definition of “voluntary.”

In August 2017, however, the D.C. district court ruled that the 30% incentive regulations were improper.  The main shortcoming of the regulations, as identified by the court, is that the EEOC apparently set the 30% threshold without any concrete data or reasoning to support the proposition that an incentive crosses the line from voluntary to involuntary at 30% of the cost of health insurance.  Instead of striking down the regulations entirely at that time, the court gave the EEOC the opportunity to modify the regulations.

In the closing days of 2017, the court revisited the issue and determined that the EEOC was not moving quickly enough to correct the regulations on its own, and the court vacated the 30% incentive regulations—but did so with an effective date of January 1, 2019, in order to minimize disruptions to existing wellness programs and to allow employers sufficient time to modify their wellness programs in the future.

The court also noted that the effective date of January 1, 2019, was intended in part to provide the EEOC additional time to issue new regulations.  Prior to the December ruling, the EEOC told the court that the EEOC intended to issue proposed regulations by August 2018, but that final regulations would not go into effect until 2021.  The court’s response was that 2021 is “unacceptable,” and the court “strongly encouraged” the EEOC to accelerate its timeline.

With all of that in mind, the bottom line is that until the EEOC issues new regulations, employers must consider structuring wellness program incentives with an eye toward documenting, with concrete data and analysis, that the program’s incentives are not so great–and, therefore, not so coercive—that the program becomes involuntary.  Stay tuned, as we will closely monitor any further action and guidance from the EEOC on this issue.