Earlier this month, the U.S. Department of Labor’s Wage and Hour Division issued a new round of FLSA opinion letters, including Opinion Letter FLSA2026‑1, which addresses the application of the “learned professional” exemption to a licensed clinical social worker. While much of the letter focuses on familiar exemption principles, one aspect of the DOL’s analysis serves as an important, and often overlooked, reminder for employers: even when an employee clearly qualifies for an exemption, the employer is not required to classify the employee as exempt.

Continue Reading New Department of Labor Opinion Letter Offers Helpful Reminder About Exempt Classification

Effective January 1, 2026, New Hampshire will add new employment protections for certain employees whose spouses are involuntarily mobilized for military service.  House Bill 225, signed into law in July 2025, provides job security and reinstatement protections during a spouse’s mobilization, meaning these employees cannot be discharged, denied employment, or subjected to adverse action because of their spouse’s mobilization. The law applies to employers with fifty (50) or more employees at a single location in New Hampshire, creating a safeguard for military families during times of deployment.

Continue Reading New Hampshire Enacts Military Spouse Job-Protection Law

The U.S. Department of State has broadened how it screens applicants for H-1B specialty occupation visas and their H-4 dependents at U.S. embassies and consulates abroad. Beginning December 15, 2025, consular officers started conducting a mandatory review of each H-1B and H-4 applicant’s publicly available online presence, including social media accounts, as part of visa adjudication. Applicants are instructed to set social media privacy settings to “public” so officers can access and review this content.

Continue Reading Alert: New Consular Vetting Practices for H-1B and H-4 Visa Processing

Last week, the Equal Employment Opportunity Commission (“EEOC”) released new and updated educational materials on national origin discrimination, including a one-page technical assistance document titled “Discrimination Against American Workers Is Against the Law” and an updated national origin webpage.  These materials underscore that Title VII of the Civil Rights Act of 1964 protects all workers from national origin discrimination, including American workers.  The EEOC’s technical assistance reflects the current administration’s ongoing focus on immigration related issues and its concern that certain “employers have policies and practices preferring illegal aliens, migrant workers, or non-immigrant guest workers (guest worker visa holders) over American workers – in direct violation of federal employment laws.” 

Title VII Protections

Title VII of the Civil Rights Act of 1964 prohibits employers from discrimination in employment based on certain protected characteristics, such as national origin.  With respect to national origin discrimination, this means that employers may not treat applicants or employees more or less favorably because they are from a particular country or part of the world or belong to a particular ethnic group, or they appear to be so, or they have a particular accent or linguistic characteristics.

In November 2016, under the Obama administration, the EEOC issued comprehensive Enforcement Guidance on National Origin Discrimination. This guidance provides a detailed overview of Title VII’s prohibition on national origin discrimination as applied to a wide variety of employment situations, and includes several employer suggestions to help reduce the risk of national origin discrimination claims.  Some of the main areas underscored in the 2016 guidance include instructions to employers that:

  • Job postings, referral practices, and screening procedures cannot exclude or prefer people because of their national origin;
  • “English-only” rules and decisions based on accent must be justified by real business needs, not stereotypes;
  • Favoring citizens over non-citizens can sometimes overlap with national origin issues; employers must be careful to comply with both Title VII and immigration laws; and,
  • Slurs, jokes, or hostile comments about national origin, ancestry, or accent can create a hostile work environment if severe or pervasive.

The EEOC has not rescinded or replaced this 2016 guidance.

Newly Released EEOC Materials

The newly released materials are technical assistance and educational tools, not a new enforcement guidance. According to the EEOC’s announcement, the agency issued a one-page non-binding technical assistance document explaining national origin discrimination and emphasizing that Title VII protects Americans as well as foreign workers.  

For example, the EEOC’s updated materials note that job ads and recruiting practices can be a major risk area for discrimination against American workers, such as when an employer “prefers or requires applicants from a particular country or with a particular visa status (for example, ‘H-1B preferred’ or ‘H-1B only’).”  The EEOC also notes that discrimination can occur when a company has a pattern or practice of firing American workers who are on the “bench” between job assignments at a much higher rate than employees who are visa guest workers or when a company has a practice of making it more difficult for applicants from one national origin to apply for positions than others (for example, subjecting U.S. workers to more laborious application methods than H-1B visa holders during the PERM labor certification process). The EEOC cautions that an employers’ decision-making may nevertheless be discriminatory, even where the employer believes it is justified due to customer or client preference, economic reasons, or a belief that workers from one or more national origin groups are “more productive” or possess a better work ethic than another group.

Key Takeaways for Employers

From a legal standpoint the law did not change. Title VII’s prohibition on national origin discrimination is the same, and the 2016 Enforcement Guidance still explains how the EEOC interprets that law. The change is a refocus in EEOC priorities signaling increased interest in claims of anti-American bias and stereotyping.  The one-page fact sheet advises America workers how to recognize when they might have a claim and encourages them to contact the EEOC, which may drive more charges.  The new technical assistance includes a specific sentence “If you suspect you have experienced anti-American national origin discrimination, contact the EEOC promptly because there are strict time limits for filing a charge.”

In light of the above, now is a good time for employers to:

  • Review and update policies to ensure the anti-discrimination policies address national origin discrimination, in addition to all applicable protected categories;
  • Train human resources professionals and managers on recognizing discrimination issues, including national origin discrimination and underscoring that Title VII protects all workers;
  • Audit employment practices to ensure decisions are made in a non-discriminatory manner; and
  • Ensure compliance with all applicable laws, including immigration and non-discrimination laws when hiring foreign nationals.

U.S. employers filing PERM (Program Electronic Review Management) Labor Certification Applications are now facing increased scrutiny regarding how they disclose travel-related job requirements on Form ETA 9089. Recently, the Department of Labor (DOL) has begun denying PERM applications—without audit—for allegedly incomplete or inconsistent disclosure of travel requirements.

Continue Reading Client Alert: PERM Denials on the Rise – Travel and Worksite Issues Under Scrutiny

On September 19, 2025, President Donald Trump issued a proclamation imposing a $100,000 fee on new H-1B visa applications, effective from 12:01 a.m. EDT on September 21, 2025. This fee applies only to new petitions submitted after that date and does not affect current visa holders or renewals. At this time, these are the current important facts that we know:

  • Individuals with a currently approved H-1B petition, or whose H-1B petitions were filed prior to 9/21/25 but are still pending may enter the U.S. without paying a $100,000 fee.
  • Individuals who already have an approved H-1B visa may enter the U.S. without paying a $100,000 fee.
  • The $100,000 fee is not required for H-1B extension petitions.

All H-1B individuals should exercise caution, and consider avoiding travel where possible considering the sudden shifts in policy.

Continue Reading Client Alert: New $100,000 Fee for H-1B workers

On June 5, 2025, the United States Supreme Court issued a unanimous decision in the matter of Ames v. Ohio Department of Youth and Services, 145 S.Ct. 1540 (2025), rejecting a heightened evidentiary requirement for plaintiffs in employment claims under Title VII if they belong to a  majority-group. In reversing the lower court’s decision, the Supreme Court ruled that all employees must satisfy the same evidentiary burden in claims of discrimination pursuant to Title VII, and that no additional requirements may be imposed on majority group plaintiffs who allege so-called “reverse discrimination” claims.  Any other standard, wrote Justice Jackson in her opinion for the court, would be inconsistent with Title VII.

Continue Reading U.S. Supreme Court Rejects Heightened Evidentiary Requirement for “Reverse Discrimination” Cases

The U.S. Citizenship and Immigration Services (USCIS) has announced that the registration period for the fiscal year (FY) 2026 H-1B cap will be open from 12pm EST on March 7, 2025, through 12pm EST on March 24, 2025.

H-1B status allows foreign nationals to temporarily work for U.S. employers in a position that requires a bachelor’s degree or above. Congress has set a mandated cap of 65,000 H-1B visas per year, with 20,000 additional H-1B visas for professionals who have obtained a master’s degree or higher from an accredited U.S. institution. Due to the limited number of visas, USCIS has implemented an annual H-1B registration process to randomly select beneficiaries who may then file a new H-1B cap-subject petition if selected. Employers must submit an H-1B registration for any foreign national workers they wish to sponsor for H-1B status. The registration process is simple and relatively inexpensive, requiring basic information from both the employer and the foreign national worker.

Continue Reading USCIS Announced FY 2026 H-1B Cap Registration Period

Immigration has been a central focus of the new presidential administration since taking office and is expected to remain a top priority. Workplace raids soared during the early years of the Trump administration’s first term, they have signaled that aggressive enforcement actions like workplace raids will factor into their immigration plans going forward. Consequently, employers should prepare for the possible arrival of U.S. Immigration and Customs Enforcement (ICE) at their door.

What Is an ICE Raid?

An ICE raid, or “workplace raid,” is when ICE agents show up at a place of business without warning to question workers and detain those they believe are unlawfully in the U.S. ICE agents will demand employers produce information, documentation, and/or individuals. Without a sufficient plan in place, this can create a chaotic atmosphere and disorder.

In the past, ICE raids targeted industries with a large share of immigrant labor like construction, manufacturing, agriculture, and hospitality. Under the first Trump administration, other businesses are also subject to workplace raids. More recently, the U.S. Department of Homeland Security (DHS) has rescinded protections that prevented these types of actions from occurring at hospitals, schools, and churches.  It’s clear that under the current state of the law almost any business or place can be the target of an ICE raid.

How to Prepare for an ICE Raid

Below are five steps proactive businesses can take to ensure they’re ready for more aggressive immigration enforcement.

1. Have a Plan

Develop a written response plan detailing how to respond during a visit from ICE. A response plan should outline whom to contact in the event of an ICE visit (for example, senior management or legal counsel), how staff should behave during the visit, and how to manage interactions with customers, clients, or patients. Many plans also identify public and private areas—ICE agents cannot enter private areas without consent or a warrant unless there are compelling circumstances.

2. Establish an ICE Manager/Executive

It’s common for businesses to designate a point of contact for ICE agents during a workplace raid. This person should be someone who is familiar with the protocol for an ICE raid, manages the response, reduces confusion, and ensures minimal disruption to operations.

3. Understand What ICE Can and Can’t Do

ICE agents don’t have carte blanche to do as they please during a workplace raid. For example, private areas of your business are off-limits to ICE agents without a warning. That said, they can enter public areas of a business, like a lobby or waiting room, without permission. Employers are not required to turn over any records without a warrant. Similarly, employees are not obligated to answer questions about their immigration status or personal details and should insist on speaking with an immigration attorney before answering any questions.

4. Train Staff

A plan is only as good as its execution. Review your written response plan and your employees’ rights to ensure everyone knows what to do and how to behave during an ICE raid. As a bonus, many workforces find having a plan in place and regularly reviewing it eases some of the anxiety created by the threat of ICE visits.

5. Ensure I-9 Compliance

Maintaining accurate I-9s is one strategy to steer clear of both ICE raids and Homeland Security Investigations (HSI) audits. Establish best practices to make certain that I-9s are completed correctly, stored properly, and retained for the appropriate period of time. Conducting internal audits is a smart strategy for identifying any issues in advance of an enforcement action. It’s also vital that personnel stay up to date with changes to Form I-9 and its requirements.

It’s often beneficial to work with an immigration attorney. The immigration attorneys of McLane Middleton can be a valuable resource for businesses striving to remain I-9 compliant, offering services that include comprehensive I-9 audits, educational staff trainings, and seminars.

Best Practices for Navigating an ICE Visit

Having an established plan for an ICE raid is a great step toward a trouble-free visit. Here are a few other considerations for what to do when ICE arrives at your business.

  • Stay calm and professional: Maintain a professional demeanor and keep your composure—losing your cool adds tension to an already anxious situation. Do not hide or help employees leave the premises, provide false information, or dispose of documents.
  • Call counsel: Inform ICE your company has legal representation and you’re contacting them. Your attorney can guide you through the process—either over the phone or in person.
  • Review warrants: Look at the warrant to confirm it’s been signed by a judge, states the address of your business, and is being executed during the correct time period. Limit ICE agents’ access to areas and materials explicitly mentioned in the warrant.
  • Care for employees: Although you cannot instruct your staff to remain silent, you can inform them that they’re not required to speak with ICE agents and that they may request their lawyer. ICE raids can last hours; alert agents to any potential issues—from medical to family—to try and accommodate pressing needs.
  • Document the visit: Keep a record of ICE agents on the premises and their contact information, what areas were searched, and what items or documents were seized—agents are required to provide an inventory of seized materials.

Protect Your Business from ICE Raids

Between costly fines, negative press, and disruption to your workforce and customers, ICE raids can be expensive and unsettling. Partnering with an experienced immigration attorney is one of the best strategies a business can pursue to protect themselves from increased worksite enforcement—they can help your business form a response plan, assist with an inspection, and ensure compliance with employment and identity regulations.

If your business is concerned about the increase in immigration enforcement, McLane Middleton can help you prepare for, develop a plan, and respond to such an event.

The United States Supreme Court just issued a unanimous decision settling a dispute in the lower courts about what standard of proof applies in cases where an employee’s exemption from the FLSA’s minimum wage and overtime rules is at issue.

Continue Reading SCOTUS Rules on Standard of Proof in FLSA Exemption Cases