US Department of Homeland Security Updates Immigration-Related Forms, Fees and Penalties

For 2024, employers should be aware of changes at the U.S. Department of Homeland Security relating to immigration and employment. Specifically, U.S. Citizenship and Immigration Services has updated employment-based visa request forms and fees, while penalties administered by Immigration and Customs Enforcement increased in compliance with the Federal Civil Penalties Inflation Adjustment Act of 2015.

USCIS Publishes New Forms and Fees Effective April 1

On Jan. 30, the U.S. Citizenship and Immigration Services issued a final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. The new fees under the final rule will go into effect on April 1. According to the press release, the USCIS encourages stakeholders to visit the Frequently Asked Questions page on its website to view a full list of the revised forms that will go into effect on April 1, along with the new fees. For more information on USCIS and its programs, please visit uscis.gov.

Immigration-Related Penalties Increase in 2024

On Feb. 13, Immigration and Customs Enforcement began assessing increased penalties for employment-related violations as required by the Federal Civil Penalties Inflation Adjustment Act of 2015, which mandates penalties adjust with inflation. ABC General Counsel Littler Mendelson published an analysis of the penalty increases and  recommends “all employers to pay careful attention to their I-9 forms and strongly consider conducting an internal I-9 audit in order to remediate, as much as possible, the I-9 errors.” Employers are advised to contact their immigration or employment counsel with questions.

On April 30, the U.S. Equal Employment Opportunity Commission will begin accepting 2023 EEO-1 Component 1 reports. According to the EEOC, “The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographic data, including data by job category and sex and race or ethnicity, to the EEOC.”

The deadline to file the 2023 EEO-1 Component 1 report is June 4.

The EEOC has created an online Filer Support Message Center (i.e., filer help desk) to “assist filers with any questions they may have regarding the 2023 collection.” Filers may also refer to the 2023 EEO-1 Component 1 Instruction Booklet.

All updates about the 2023 EEO-1 Component 1 data collection will be posted to www.eeocdata.org/eeo1 as they become available. 

Learn more about the EEOC.

On March 1, 2024, a federal judge ruled that the Corporate Transparency Act is unconstitutional, marking a milestone in the 16-month ongoing legal battle led by the National Small Business Association and supported by the S-Corporation Associates of America and the members of the Main Street Employers Coalition, including ABC.

Importantly, according to a statement from FinCEN, the decision is limited at the moment to the plaintiffs—members of the National Small Business Association, a national association with 65,000 members. Given the narrow exemptions for NSBA members, unless the Treasury Department suspends enforcement of CTA for all businesses that are obligated to file, CTA beneficial ownership reports will still need to be filed.

However, the ruling is sure to set the stage for an elevated judicial battle over the CTA. Already, on March 11, the Department of Justice filed a notice of appeal on behalf of Treasury. Given the high level of uncertainty following the ruling, there is a chance for a stay in the law’s implementation until the 11th Circuit has a chance to rule or a stay pending appeal of the ruling.

For now, ABC urges members and small business owners to continue to review the ruling with counsel to assess its implications. In the meantime, ABC will seek delay and repeal of the law and provide updates to ABC members on the legal challenges.

Background on the Corporate Transparency Act

On Jan. 1, 2021, Congress enacted into law the Corporate Transparency Act, which establishes a new framework for the reporting, maintenance and disclosure of beneficial ownership information in order to better enable critical national security, intelligence and law enforcement efforts to counter money laundering, the financing of terrorism and other illicit activity, among other items.

ABC, along with a coalition of small business organizations, submitted a letter to congressional leadership expressing concerns on the amendments incorporating the CTA into the 2021 National Defense Authorization Act, stating the enactment of the CTA would decrease privacy protections and slow the economic recovery of Main Street.

ABC responded to the U.S. Department of Treasury’s Financial Crimes Enforcement Network notice of proposed rulemaking seeking public input on how best to implement the reporting requirements of the CTA, as well as the CTA’s provisions regarding FinCEN's maintenance and disclosure of reported information in comments. In summary, ABC’s comments noted that the framework prescribed by the CTA will require millions of small businesses, including nearly every employer with 20 or fewer employees, to report to FinCEN certain personal information of their beneficial owners and update that information periodically throughout the life of the business.

ABC also argued that America’s small businesses—which include most of ABC’s members—are typically not staffed or well-equipped to understand and comply with reporting obligations similar to those under the CTA. However, per the CTA, failure to comply can result in significant fines and imprisonment for these small business owners.

ABC, S-Corp and Main Street Employers supported a legal challenge filed by the National Small Business Association, alleging that the CTA violates a laundry list of constitutional protections. In the decision issued on March 1, Judge Liles C. Burke for the Northern District of Alabama Northeastern Division outlined many of the same arguments, saying:

“This case presents a deceptively simple question: Does the Constitution give Congress the power to regulate those millions of entities and their stakeholders the moment they obtain a formal corporate status from a State? The Government thinks so. While it acknowledges that Congress “can exercise only the powers granted to it,” the Government says that the CTA is within Congress’ broad powers to regulate commerce, oversee foreign affairs and national security, and impose taxes and related regulations. The Government’s arguments are not supported by precedent. Because the CTA exceeds the Constitution’s limits on the legislative branch and lacks a sufficient nexus to any enumerated power to be a necessary or proper means of achieving Congress’ policy goals, the Plaintiffs are entitled to judgment as a matter of law. As a result, the Court grants the Plaintiffs’ motion for summary judgment and denies the Government’s motion to dismiss and alternative cross-motion for summary judgment.”

ABC will continue to track this ongoing issue in the Beltway Blueprint and Newsline.

On March 6, Vice President Kamala Karris and U.S. Department of Labor Acting Secretary Julie Su announced in Madison, Wisconsin, President Joe Biden’s new Executive Order on Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums with the stated goal of expanding the usage of government-registered apprenticeship programs by the federal government.

The order directs federal agencies to identify where they can implement new requirements or incentives for federal contractors and recipients of federal financial assistance to employ workers who are active participants or graduates of a GRAP.

While specific details on how these new requirements will be implemented are not yet available until a rulemaking is completed, in a March 6 statement ABC expressed concerns that any new mandates or incentives on federal contracts and grants will reduce competition from contractors that choose not to participate in the GRAP system or lack access to these programs.

Additionally, given that 69% of all GRAP participants are in union-affiliated programs, ABC is concerned that this is another method for the Biden administration to unfairly steer taxpayer-funded contracts to unionized contractors and labor, rather than allowing fair and open competition by all contractors.

ABC supports GRAPS and offers more than 450 such education programs through ABC chapters across the country as part of its all-of-the-above approach to meet the workforce needs of the construction industry. However, ABC’s analysis of DOL data confirmed that GRAPs are unable to meet construction industry workforce needs on their own.

The EO also increases concerns regarding a Jan. 17, 2024, U.S. Department of Labor proposed rule that would make significant and controversial revisions to the National Apprenticeship System. Results from ABC’s February 2024 survey of contractors and ABC chapter GRAP providers confirmed that the proposed rule would strongly discourage GRAP participation, with 96% of respondents stating new recordkeeping and reporting requirements will make them less likely to participate in or start their own GRAP.  ABC recently launched an action alert via ABC’s Action Center and app that stakeholders can use to oppose this costly new rule by the DOL’s March 18 comment deadline.

On Jan. 17, 2024, the U.S. Department of Labor published a proposed rule that would make significant and controversial revisions to the National Apprenticeship System, which will affect ABC members, chapters, apprentices and other industry stakeholders participating in government-registered apprenticeship programs. Take action now by submitting comments through ABC’s Action Center and app to tell the DOL to withdraw or improve this costly new rule!

ABC supports government-registered apprenticeship programs and offers more than 450 such education programs across the country as part of its all-of-the-above approach to meet the workforce needs of the construction industry. Unfortunately, the proposed rule implements dozens of burdensome and costly new recordkeeping requirements and reduces flexibility for GRAP sponsors and employers that will only exacerbate the construction industry’s workforce shortage.

Results from ABC’s February 2024 survey confirmed that the proposed rule would strongly discourage GRAP participation, with 96% of respondents stating new recordkeeping and reporting requirements will make them less likely to participate in or start their own GRAP. Further, ABC’s analysis of DOL data confirmed that GRAPs are already not keeping up with construction industry workforce needs.

For more information on the proposed rule, see ABC’s Newsline article.

ABC is available to help members and chapters interested in submitting more detailed comments to the DOL, prior to the proposal’s March 18 comment deadline.

Please reach out to Michael Altman at [email protected] to receive a customizable template and instructions on how to submit comments.

On March 5, ABC, its Southeast Texas chapter, the Coalition for Workforce Innovation, the Financial Services Institute, the American Trucking Associations, the U.S. Chamber of Commerce, the National Retail Federation and the National Federation of Independent Business filed an amended complaint in the U.S. District Court for the Eastern District of Texas arguing that the U.S. Department of Labor’s Employee or Independent Contractor Classification Under the Fair Labor Standards Act final rule is unlawful and a violation of the Administrative Procedure Act. The district court will review the complaint and response from the U.S. Department of Justice. The final rule goes into effect on March 11. 

“The 2024 final independent contractor rule is confusing, vague and unworkable, and will harm construction workers classified as independent contractors because they will lose crucial opportunities for work. Further, the difficult-to-interpret standards in this final rule strip independent contractors of basic freedoms and rights to choose how they work. Replacing the commonsense 2021 final rule was the wrong move by the U.S. Department of Labor and has created an ambiguous standard for determining employee or independent contractor status under the Fair Labor Standards Act,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. Read the business coalition’s statement.

Separately, on March 6, ABC sent a letter to Congress urging members to pass a Congressional Review Act resolution to nullify the U independent contractor final rule.

On Jan. 9, the DOL announced the final rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act, which rescinds the ABC-supported 2021 final rule and replaces it with a confusing multifactor analysis to determine whether a worker is an employee or an independent contractor. Learn more about the 2024 final rule. Also, watch the ABC-members only archived webinar in the Academy, "Learn What the DOL's Final Independent Contractor Rule Means for ABC Members."

Continue to monitor ABC Newsline for updates.

On March 1, the U.S. Department of Labor sent its Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees final rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget for final review. The rule would alter overtime regulations under the Fair Labor Standards Act. The review at the OIRA is usually the final step in the process before a rule is officially published in the Federal Register. ABC will be meeting with the OIRA to express its serious concerns about the rule.

On Nov. 7, 2023, ABC submitted comments to the DOL in opposition to the proposed overtime rulemaking, which would increase the minimum salary threshold for exemption by nearly 70%, from the current $35,568 annual salary level to $60,209 annually. The DOL also proposes to significantly raise the total annual compensation needed to qualify for exemption under the streamlined test for highly compensated employees from the current total annual compensation of $107,432 to $143,988. Finally, the DOL proposes to automatically update the standard salary level and the HCE total annual compensation threshold every three years.

ABC issued a press release stating, “ABC called on the DOL to withdraw the new proposed rule, which is unlawful, inconsistent with historic norms and will specifically harm small businesses,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC has consistently told the DOL that there is no compelling reason for an adjustment to the minimum salary threshold for exemption since it was increased roughly four years ago. Most importantly, the DOL should recognize that the construction industry, as well as multiple other industries, is currently up against increased geopolitical uncertainty, high materials prices, inflationary pressures and workforce shortages. Specifically, ABC estimates that the construction industry needs to hire more than half a million workers in 2023 alone. Regrettably, the DOL’s proposed salary level increase will further complicate the current economic outlook.” 

As a steering committee member of the Partnership to Protect Workplace Opportunity, ABC also signed onto coalition comments criticizing the overtime proposed rule, joining 244 national, state and local organizations representing employers from a wide range of private industry and public, nonprofit and education sectors. The PPWO also created a grassroots toolkit for members to respond to the DOL’s overtime proposed rule.

My journey in the field of construction management began at Montgomery College in Maryland, where I made the decision to pursue this career path out of curiosity for the program and looking for promising career opportunities. With no prior experience in the industry, I was eager to broaden my horizons and gain more exposure. That’s when I became a member of the Student Construction Association and, as an officer, I was able to connect with ABC through its student chapter.

This decision proved to be transformative. It opened numerous doors for me, including the prestigious ABC Virginia and ABC Metro Washington Scholarships, which I was fortunate to receive in 2022 and 2023.

I realized that I needed to get more involved in construction before earning my degree, and to understand what the day to day was like. I applied to multiple companies, until I was hired by a flooring subcontractor in Silver Spring, Maryland, in 2022. I left my position as personal banker at a bank and took the risk of starting in a new field. I soon began to recognize the immense growth potential in construction. I started as a project coordinator and learned how to communicate with general contractors, process all the data, purchase orders and everything else necessary on the administrative side to deliver projects. To this date, I consider that career move to be the best risk I have taken.

Just six months later, I embarked on a new journey, this time with Henley Construction, transitioning from subcontractor work to joining a general contractor. Now, I have been with them for over a year as a field engineer, working on public schools in Montgomery and Fairfax counties. I assist the project manager and superintendent with all documentation throughout the project, and communicate with the owner, design team and subcontractors by doing such things as staying on site for supervision and coordination. I consider myself very fortunate to have the opportunity to wear different hats at Henley, which has allowed me to learn and grow immensely. This transition marked not only my evolution from being a student to a working professional in the industry, but also the beginning of my service on the Workforce Development Committee of ABC Metro Washington.

The past two years have been a testament to growth and engagement for me, as I’ve built valuable connections and dedicated my efforts to assisting students who are treading a similar path toward connecting with the workforce. I am immensely grateful for the opportunities that have come my way, especially for the unwavering support and sense of belonging that ABC Metro Washington has provided. It truly feels like being part of a larger family, and I am excited to continue my journey in the industry with their guidance and support.

Nathalia Marcano

As the presenting sponsor of ABC's 34th annual Excellence in Construction^® Awards, the ABC Insurance Trust embraces merit shop principles to highlight the pivotal role that healthy competition plays in improving the construction industry. The Trust’s innovative benefits enhance workforce well-being and make high-performing ABC member companies more appealing to top talent in a competitive market while delivering significant savings on healthcare and retirement plans.

There is a critical lack of competition and transparency in the healthcare arena. The current system relies on ambiguous pricing and third parties with misaligned incentives, which affects how much ABC members and their employees pay for healthcare, leaving members at the mercy of the same organizations year after year.

Employers and employees blindly accept bills from hospitals and insurance carriers without actively knowing the actual cost of the service or, more importantly, the quality of the provider. This conundrum also extends to prescription drugs, where exorbitant prices persist despite more reasonable alternatives worldwide.

The ABC Insurance Trust works with members to introduce healthy competition into the employee benefits evaluation process to eliminate this healthcare dysfunction in an industry deeply affected by rising healthcare costs. Through its newly launched healthcare captive, the Construction Healthcare Alliance, the Trust brings contractors from across the country together to leverage strength in numbers and initiate real change.

Learn more about enhanced benefits tailored to meet every member’s unique needs at abcinsurancetrust.org.

On Feb. 26, ABC joined the U.S. Chamber of Commerce and eight other groups in submitting comments to the U.S. Department of Defense on its Cybersecurity Maturity Model Certification (CMMC) Program proposed rule, which would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures in order to maintain eligibility for performing and winning new federal awards.

The organizations called for more clarity (e.g., definitions), expressed concerns about costs and asked questions regarding capacity and other process and organizational issues.

The comments urged flexible implementation of CMMC program requirements. The comment letter pointed out that, “According to the proposed rule, the defense industrial base, or DIB, consists of 221,286 entities. Of these, the DOD expects that 76,598 will be subject to a Level 2 Certification Assessment, of which 56,789 (74%) are small businesses. The complex CMMC Program would apply to all these entities. Our associations believe that it is essential that DOD builds in flexibility in the administration, application, oversight, and enforcement of the proposed rule. Such flexibility would benefit DOD and the thousands of businesses subject to the CMMC Program. The circumstances of every business differ. The CMMC Program contemplates applying one complex rule, with even more complex accompanying documentation to all these businesses.”

The letter further discussed avoiding harm to small defense contractors. The letter states, “Our associations believe that the proposed rule would discourage many small and disadvantaged businesses from bidding on DOD construction projects. We are concerned about the likely adverse economic impact of the CMMC Program on promoting (sub)contracting between small businesses in the construction industry and DOD.”

In addition, it states, “The decline in small business participation in federal contracting directly correlates with increasing federal regulatory burdens. Surveys of ABC’s membership have found that small business contractors often choose to bid on private sector and state or local government contracts that feature more regulatory clarity and less regulatory burdens, which mitigate expenses related to compliance.”

Background on the Proposed Rule

On Dec. 26, 2023, the DOD published a proposed rule that would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures in order to maintain eligibility for performing and winning new federal awards.

The new requirements would apply to all contractors and subcontractors that process, store or transmit information on contractor servers that meet the standards for Federal Contract Information or Controlled Unclassified Information. Requirements vary from a self-assessment of compliance with cybersecurity measures to triennial assessment and certification of compliance by third-party contractors or the DOD, dependent on the data involved in a specific contract. More than 200,000 companies in the DIB could be affected by the rule.

On Jan. 30, 2024, ABC urged the DOD to extend the current 60-day comment period deadline of Feb. 26 in order to provide adequate time for ABC to analyze the substantial proposed rule, solicit member feedback and provide meaningful input on the proposal. ABC argued a 30-day extension from the current deadline will be vital to ensure that the DOD can receive thorough input from all stakeholders affected by this proposed rule.

On Feb. 8, Inside Cybersecurity reported that the DOD “turned down a request from industry groups to extend the comment period” for 60 days. Thereafter, on Feb. 9, ABC joined a coalition letter urging the DOD to reconsider its publicly reported decision to not extend the comment period and to instead extend it either 30 or 45 days—a middle-ground approach. The DOD did not issue a response.

Continue to monitor Newsline for updates.