Federal labor and immigration agencies

Summary

This cluster documents the federal labor, workplace and immigration instruments that limited how every employer in the United States hired, staffed, scheduled, onboarded, paid and retained workers between March 2020 and September 2021. Three families of instruments carry force of law. First, the Department of Labor's Wage and Hour Division promulgated 29 C.F.R. part 826 as a temporary rule effective April 2 through December 31, 2020 (85 Fed. Reg. 19326, Apr. 6, 2020; corrected 85 Fed. Reg. 20156, Apr. 10, 2020; revised after New York v. U.S. Dep't of Labor, 85 Fed. Reg. 57677, Sept. 16, 2020), compelling every private employer with fewer than 500 employees to provide paid sick leave and expanded family and medical leave when an employee was subject to a Federal, State or local quarantine or isolation order, advised to self-quarantine, symptomatic, caring for such a person, or caring for a child whose school or place of care was closed by order; the rule carried FLSA section 16 and 17 remedies and a 30-day stay of enforcement to April 17, 2020 (FAB 2020-1). Second, the President suspended the entry of immigrants (Proclamation 10014, effective April 23, 2020) and of H-1B, H-2B, J and L nonimmigrant workers (Proclamation 10052, effective June 24, 2020), continued both to March 31, 2021 (Proclamation 10131, Dec. 31, 2020); Proclamation 10014 was revoked February 24, 2021 (Proclamation 10149) and Proclamation 10052 expired by its terms on March 31, 2021; Proclamation 10043 (May 29, 2020) suspended entry of certain Chinese graduate students and researchers and remained in force through the third quarter of 2021. DHS answered the consular shutdown with temporary final rules relaxing H-2A and H-2B change-of-employer and maximum-stay limits (85 Fed. Reg. 21739, Apr. 20, 2020, extended 85 Fed. Reg. 51304 and 85 Fed. Reg. 82291; 85 Fed. Reg. 28843, May 14, 2020; 86 Fed. Reg. 28198, May 25, 2021), each reciting that consular closures and entry restrictions had interrupted the seasonal labor supply. Third, DHS and USCIS suspended all face-to-face services from March 18 to June 4, 2020 (a fact stated in the Federal Register at 85 Fed. Reg. 59655), suspended premium processing of every Form I-129 and I-140 from March 20 to June 1, 2020, and deferred Form I-9 physical-inspection requirements for remote workforces from March 20, 2020 through the period (extended repeatedly; the extension in force in September 2021 ran to December 31, 2021); the State Department suspended routine visa services worldwide on March 20, 2020 and resumed them only post by post from July 2020; SEVP permitted F and M students to study online under the March 9, 2020 guidance, attempted to withdraw that permission on July 6, 2020 and restored it on July 24, 2020, and carried it through the 2021-22 academic year; the NLRB suspended all representation elections from March 19 through April 3, 2020, closed regional offices in Manhattan, Detroit, Chicago, Cleveland, New Orleans, San Francisco, Denver and Phoenix, put the agency on telework, and delayed two election rules; EOIR postponed all non-detained immigration hearings from March 18, 2020 (through June 12, 2020 as of the May 27, 2020 posting, and in rolling extensions thereafter). OSHA's instruments in this period were enforcement memoranda and directives (guidance, stated as such) that governed how the Occupational Safety and Health Act was enforced against every employer: the Interim Enforcement Response Plan (Apr. 13, 2020; updated May 19, 2020 and Mar. 12, 2021), the recording and reporting memoranda under 29 C.F.R. part 1904 (Apr. 10 and May 19, 2020), the respirator memoranda, the good-faith memorandum (Apr. 16, 2020), the National Emphasis Program (DIR 2021-01, Mar. 12, 2021; revised DIR 2021-03, July 7, 2021), and the enforcement record of citations under the General Duty Clause and 29 C.F.R. 1910.134 (JBS Greeley, Hackensack Meridian, and the agency's own list of more than 1,000 penalized COVID-19 inspections). The EEOC's pandemic technical assistance and the EBSA/Treasury joint rule tolling every ERISA and COBRA deadline for the Outbreak Period (85 Fed. Reg. 26351, May 4, 2020) round out the workplace layer; the Department of Education's Title IV and FERPA flexibilities are context for the education sector. By quarter: 2020 Q2 carries the FFCRA mandate, the OSHA response plan, the USCIS and consular shutdowns, the NLRB suspension, the EOIR postponements and Proclamation 10014; 2020 Q3 adds Proclamation 10052, the H-2B rule, the revised FFCRA rule and the SEVP reversal; 2020 Q4 carries the FFCRA mandate to its December 31 sunset, Proclamations 10014 and 10052 as continued, the I-9 deferral and the EOIR postponements; 2021 Q1 carries Proclamations 10014 (to Feb. 24) and 10052 (to Mar. 31), Proclamation 10043, the I-9 deferral, the OSHA NEP and updated response plan from March 12; 2021 Q2 carries Proclamation 10043, the I-9 deferral, the NEP, the H-2B supplemental-cap rule and the H-2A second extension; 2021 Q3 carries Proclamation 10043, the I-9 deferral (extended to Dec. 31, 2021), the revised NEP and ETS inspection directive, the H-2A second extension (to Dec. 18, 2023), the USCIS asylum-interpreter rule (extended Sept. 17, 2021), the SEVP guidance for the 2021-22 academic year, and the EOIR and USCIS reduced-capacity operating postures.