Quick Hits

• USCIS will continue to accept adjustment of status filings based on the Final Action Dates for Filing Chart in July 2026.
• Visas are unavailable for the remainder of the fiscal year for EB-2 applicants from India.
• EB-4 Certain Religious Workers (SR) is showing priority dates again due to the program’s extension to September 30, 2026.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it would continue to accept employment-based adjustment of status filings based on the Final Action Dates for Filing Chart in July 2026.

Final Action Dates

The final action dates across many categories have advanced and retrogressed slightly. However, the most significant movement is that the EB-2 Category for India is now unavailable (U) for the remainder of the fiscal year.

• EB-1: The final action dates for China-mainland advanced by one month while the dates for India retrogressed by two months. All other countries continue to be current.
• EB-2: The final action dates for India EB-2 are now unavailable for the fiscal year. All other countries remain the same.
• EB-3: All countries advance except for Philippines which remains at August 1, 2023.
• EB-4: All countries have advanced from July 15, 2022, to September 15, 2022.
• EB‑4 Certain Religious Workers: This category has advanced from July 15, 2022, to September 15, 2022.
• EB-5: China-mainland born in the 5th Unreserved category has moved from September 22, 2016, to December 1, 2016, and India has become unavailable for the remainder of the fiscal year. All other countries and categories remain current.

Source: U.S. Department of State, July 2026 Visa Bulletin, Final Action Dates Chart

Key Takeaways

With some advancement in final action dates, more applicants will become eligible to complete the final step of the permanent residency process. Applications in the India EB-2 category will no longer be processed by USCIS until the new fiscal year in October 2026.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Immigration blog as additional information becomes available.

For additional insight into the critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

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$100,000 H-1B Fee Temporarily Back in Effect. Just days after the U.S. District Court for the District of Massachusetts vacated President Trump’s $100,000 H-1B proclamation, the policy is temporarily back in effect. Here’s what happened. Shortly after the district court vacated the policy, the administration filed an appeal of the decision with the U.S. Court of Appeals for the First Circuit. The administration also filed a motion to stay with the district court, asking the court to pause its ruling during the pendency of the appeal. The district court granted a temporary administrative pause of its ruling while the administration petitions the court of appeals for a full stay as the appeal on the merits goes forward. This means that the administration can continue to collect the $100,000 fee for now, though this may change after the court of appeals rules on the administration’s motion to stay. Evan D. Anderson has more.

Proposed EEO-1 Rescission Moves Forward. The White House’s Office of Information and Regulatory Affairs (OIRA) has completed its review of the U.S. Equal Employment Opportunity Commission’s (EEOC) draft proposal to eliminate the Employer Information Report (EEO-1). This means that the EEOC is likely to release the proposal for public comment at any moment. Meanwhile, the EEOC has still not opened the EEO-1 filing portal for the 2025 reporting year.

Teamsters Run It Back With O’Brien. The International Brotherhood of Teamsters voted to reelect Sean O’Brien as its general president during the union’s convention this week. O’Brien’s new five-year term will begin in March 2027. Consider his political influence during the current administration alone:

• O’Brien managed to persuade twenty Republicans to vote for the Faster Labor Contracts Act (FLCA) in the U.S. House of Representatives and three Republicans to cosponsor the bill in the U.S. Senate. One of those cosponsors, Senator Josh Hawley (R-MO), invited O’Brien to promote the FLCA during a hearing of the Senate Committee on Health, Education, Labor and Pensions in October 2025.
• O’Brien reportedly pushed the White House to endorse the Railway Safety Act, which was subsequently included in the “Building Unrivaled Infrastructure and Long-Term Development (BUILD) for America’s 250th Act” (“BUILD America 250 Act”) (H.R. 8870), which is making its way through the House.
• O’Brien successfully advocated for the appointment of former representative Lori Chavez-DeRemer (R-OR)—who supported the Protecting the Right to Organize Act—to be secretary of labor in the Trump administration. (Chavez-DeRemer, who was sworn in as labor secretary on March 11, 2025, stepped down on April 20, 2026.)
• O’Brien was a featured speaker at the Republican National Convention in 2024.
• O’Brien accompanied former senator Markwayne Mullin (R-OK) at Mullin’s confirmation hearing to be secretary of homeland security.

O’Brien will undoubtedly continue to play an outsized role in Washington, D.C., labor policy debates, no matter what happens in the 2026 midterm elections.

Senate Committee Advances College Athletics Bill. Today, the U.S. Senate Committee on Commerce, Science and Transportation voted, 19–9, to approve the Protect College Sports Act. The bill would establish a federal framework governing multiple aspects of collegiate athletics, including play eligibility, student-athlete transfers, and name, image, and likeness (NIL) rules. However, as the Buzz has previously discussed, the bill “is neutral on, and does nothing to alter, employee or non-employee status for student athletes.”

Smoot-Hawley. This week in 1930, President Herbert Hoover signed into law the Smoot–Hawley Tariff Act, despite a petition signed by more than 1,000 economists urging him to veto the bill. What started as a limited effort to help struggling American farmers by imposing new tariffs on foreign agricultural products quickly ballooned into a broader legislative scheme to increase tariffs on more than 20,000 imported products. Spearheaded by Senator Reed Smoot (R-UT) and Representative Willis C. Hawley (R-OR), the law turned out to be a disaster. Foreign countries immediately instituted their own retaliatory tariffs, leading to a freeze of international trade that deepened the Great Depression. The law was a political disaster, as well, as Hoover, Smoot, and Hawley, all lost in the 1932 elections. Though technically not repealed, Smoot-Hawley was essentially replaced by the Reciprocal Trade Agreements Act of 1934 that President Franklin D. Roosevelt signed into law.

The Buzz will return to its regularly scheduled programming on Friday, June 26, 2026.

Quick Hits

• A Texas judge ruled that conversations with generative AI tools could be protected as attorney work product under Texas law, diverging from a recent landmark federal case.
• The decision implies that using AI does not automatically waive privilege, as such conversations may not be likely to be disclosed to adversaries.
• Employers may want to monitor employee interactions with AI to manage potential risks to attorney-client privilege and confidentiality.

On June 3, 2026, Judge Grant Dorfman for the Texas Business Court Eleventh Division issued a minute entry in Tate Group Automotive, LLC v. Legacy Automotive Capital, LLC, ruling that a non-lawyer’s AI conversations, prepared in anticipation of litigation, could qualify as privileged work product under Texas procedural rules.

Judge Dorfman indicated that AI conversations could be covered by the work-product protection under Texas law, citing the Texas rules of civil procedure that work product is “material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party….” (Emphasis in decision.) In other words, work product is not limited to materials developed by lawyers and may include materials generated by the principal of a corporate entity—as was the case in Tate, or by pro se litigants.

In this vein, Judge Dorfman cited with approval two recent district court opinions involving the use of AI by self-represented litigants in employment litigation: a February 2026 ruling from the U.S. District Court for the Eastern District of Michigan, and a March 2026 ruling from the U.S. District Court for the District of Colorado, Morgan v. V2X, Inc. In citing these opinions, Judge Dorfman seemingly endorsed the rationale of those courts that the work product protection is waived only when materials are disclosed to an adversary, or in a manner substantially likely to reach one. The ruling thus suggests that the use of an AI tool did not fall within those parameters for waiver.

Notably, the judge “disagree[d]” with United States v. Heppner, a landmark February 2026 case from the U.S. District Court for the Southern District of New York. That case held that exchanges between a criminal defendant and publicly available generative AI platforms are not protected by the attorney-client privilege or the work-product doctrine. In that case, the federal court found that inputting sensitive information into a third-party consumer AI platform constitutes a voluntary disclosure outside the attorney-client relationship.

But Judge Dorfman stated that “the Texas rules set forth a different standard for protectable attorney work product and plainly appear on their face to extend that protection to” the plaintiff’s conversations with an AI tool.

Still, ultimately, the judge said the privilege only extends so far and ordered the plaintiff to hand over “all discovery materials or products that it has shared with” the AI tool, including materials produced under a protective order. The judge further recommended that the parties confer on amendments to a protective order “that would make unquestionably clear whether, how, and to what extent, if so, Confidential Information may be shared with any AI tool or other Large Language Model system.”

Key Takeaways

The Texas Business Court’s ruling comes as courts are grappling with, and reaching divergent conclusions about, how to handle privilege and parties’ exchanges with popular, publicly available generative AI platforms. Such issues are likely to grow as the use of generative AI tools becomes more ubiquitous.

Judge Dorfman’s minute entry, while not a full opinion on the merits, suggests that Texas courts may be more flexible in interpreting work-product protection for AI conversations, even when involving non-lawyer parties. Specifically, Judge Dorfman noted that the Texas rules of civil procedure protect parties’ materials and impressions developed in anticipation of litigation. The judge further suggested that discussions with a publicly available AI tool do not necessarily waive the privilege, as those conversations may not be substantially likely to be found by adverse parties.

Employers may want to review the extent to which their employees are using AI tools to make employment-related decisions and to make other decisions in response to employee complaints or the threat of litigation. Such materials may or may not be covered by the attorney-client privilege or the work-product doctrine, and disclosure of confidential information by non-lawyers to an AI tool may constitute a waiver of the privilege.

The case law to date suggests that individuals increase the risk of being found to have waived privilege when they use public AI tools, as opposed to enterprise-based AI tools. Additionally, beyond concerns of waiver, employers may need to evaluate whether generative AI tools constitute preservable electronically stored information (ESI) when issuing litigation holds. This is a quickly evolving issue on emerging technologies so employers may want to stay abreast of new developments.

Ogletree Deakins’ Technology Practice Group, Whistleblower and Ethics Practice Group, and Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments and will provide updates on the Employment Law, Ethics/Whistleblower, Technology, and Workplace Investigations and Organizational Assessments as additional information becomes available.

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Quick Hits

• Objecting that a plaintiff’s summary judgment evidence is “self-serving” is not a valid evidentiary objection and can provide grounds for reversal on appeal.
• Evidence at summary judgment need not be in admissible form; the correct objection is that the material cannot be presented in any admissible form at trial.
• Defense lawyers who make incorrect evidentiary objections at summary judgment risk losing credibility, wasting briefing space, and having favorable rulings reversed on appeal.

There is nothing wrong with “self-serving” evidence. What other kind of evidence would a party submit? Yet, lawyers regularly file briefs (and courts occasionally issue sloppily written opinions) that attack a plaintiff’s summary judgment evidence as “self-serving,” as if that makes it suspect or inappropriate. The fact that a witness’s testimony is self-serving or uncorroborated may be grounds for questioning the witness’s credibility, but credibility is for trial and not for summary judgment. So, a “self-serving” objection is not usually a worthwhile argument at summary judgment. Worse, winning summary judgment because the trial court disregarded evidence as “self-serving” hands the plaintiff a basis for reversal.

Instead of objecting that evidence is “self-serving,” trial lawyers may instead want to consider one or more of the following arguments: (1) the affidavit is not made on personal knowledge or first-hand experience; (2) the affidavit presents only conclusions or opinions; (3) the affidavit is too vague to genuinely dispute any facts; and (4) the fact presented, or the genuine factual dispute created by the affidavit, is not material to the issue. Note, however, that there may be extreme situations in which it is appropriate to object that an opposing witness’s version is so demonstrably false (e.g., it contradicts an unaltered video) that no reasonable jury could believe it.

A second potential summary judgment mistake is objecting that material is “inadmissible.” In fact, under Fed. R. Civ. P. 56(c)(2), evidence need not be in admissible form to use it at summary judgment. The proper objection is that “the material … cannot be presented in a form that would be admissible in evidence.” The point to be made to the trial court in the defendant’s summary judgment motion (or on reply) is not that the plaintiff’s material is currently not admissible, but that it is currently not admissible and cannot be made admissible. Similarly, the Fed. R. Civ. P. 56(c)(2) advisory committee stated in a note to the 2010 amendment that the proponent of the material need show only that the material “is admissible as presented or to explain the admissible form that is anticipated.”

If the other side’s proffered evidence can easily be made admissible—e.g., by providing a witness at trial to provide in-court testimony, authentication, or to lay a foundation—the objection may not be worthwhile. Making the wrong objection not only lessens counsel’s credibility and wastes space, it also risks reversal on appeal. If the correct objection to evidence is available, make that one. If the material at issue could easily be put in admissible form at trial, and especially if the means to do so is apparent, consider whether the objection is worth the risks.

Ogletree Deakins’ Appellate Practice Group will continue to monitor developments and will post updates on the Employment Law blog as additional information becomes available.

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Quick Hits

• Effective June 5, 2026, commercial establishments located in Erie County, New York, are prohibited from collecting, storing, retaining, selling, or otherwise monetizing data that can be used to identify individual customers.
• Local commercial establishments must disclose the amount and type of biometric identifier information they retain.
• Commercial establishments in Erie County must plan to permanently delete or destroy the data retained.

Key Provisions of the Law

Starting on June 5, 2026, all for-profit and not-for-profit businesses operating in Erie County, which includes Buffalo, the state’s second-largest city, are prohibited from collecting, storing, procuring, using, and selling or otherwise monetizing customer biometric identifier information.

Biometric identifier information is defined as information that “depict[s] or describe[s] physical, biological, or behavioral traits, characteristics, or measurements of or relating to an identified or identifiable person’s body.” Biometric identifier information includes images, descriptions, and recordings of an individual’s facial features, retina, fingerprints, voice, and characteristic movements or gestures, among other things. 

Practical Implications for Employers and Businesses

The law does not affect a commercial establishment’s use of video footage and photography for surveillance or other purposes, but rather applies to the use of software, digital, or computing applications that assist with the identification of individuals based on physiological or biological characteristics.

Notably, the law also does not apply to employers that may collect biometric identifier information of their employees.

Next Steps

By July 5, 2026, commercial establishments in possession of biometric identifier information must submit written notice to the director of the Erie County Department of Public Advocacy Division of Consumer Protection regarding whether they are in possession of biometric identifier information.

Commercial establishments in possession of biometric identifier information must disclose the type and amount of biometric identifier information collected, and a written policy that includes the method and deadline by which they will permanently delete or destroy the biometric identifier information in their possession.

Commercial establishments will then have thirty days to permanently delete or destroy the biometric identifier information in their possession. Establishments must then submit an affidavit certifying that they have permanently deleted or destroyed the biometric identifier information.

Commercial establishments may be subject to a civil penalty each day they are found to be in violation of the law. 

Key Takeaway

Commercial establishments operating in Erie County may want to review their policies on collecting customer biometric identifier information and to ensure they comply with the fast-approaching July 5, 2026, written notice deadline.

Ogletree Deakins’ Buffalo office and Cybersecurity and Privacy Practice Group will continue to monitor developments and provide updates on the Cybersecurity and Privacy, Hospitality, New York, and Retail blogs as additional information becomes available.

In doing so, the proposed rule appears to flip the old presumption on its head, allowing the existence of the prior presumption to serve as evidence of discrimination against those who were excluded from it.

Quick Hits

• The proposed rule replaces the old eligibility framework with a new test requiring applicants to show that a governmental or private entity discriminated against or was biased against their racial, ethnic, or cultural group, and that such discrimination caused them material harm.
• The rule explicitly identifies “unlawful” DEI programs, affirmative action policies, race-based quotas, set-asides, and hiring targets as qualifying bases for establishing social disadvantage, meaning that corporate DEI programs could become evidence of discrimination in 8(a) certification proceedings.
• Applicants can self-certify group membership and material harm, defined as “loss of access to or diminished opportunities related to economic advancement,” and need not show that the discrimination directly impacted their entry into or advancement in business.
• The rule applies only to individually owned 8(a) applicants and does not affect entity-owned firms, including businesses owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations.

Background

As we discussed in our February 2026 article, SBA previously released policy guidance signaling that it would administer the 8(a) program on a strictly race-neutral basis going forward and would no longer allow presumptions of social disadvantage to establish program eligibility.

That guidance abandoned prior narrative frameworks, replacing them with a fact-specific inquiry into whether an individual has actually experienced social disadvantage. SBA also announced that only sixty-five companies were admitted to the 8(a) program in 2025, signaling a materially narrower program. SBA indicated it was finalizing formal regulatory changes, and the proposed rule published on June 11, 2026, is that follow-on action.

What the Proposed Rule Would Change

The proposed rule makes four targeted changes to 13 C.F.R. § 124.103:

First, the regulation would be revised to align with the statutory text in 15 U.S.C. § 637(a)(5), which defines socially disadvantaged individuals in race-neutral terms.

Second, the current regulatory tests for social disadvantage would be replaced with a new test. Under that test, an applicant to the 8(a) program can establish social disadvantage by showing that during the applicant’s lifetime, a governmental or private entity discriminated or was biased against a clearly definable racial, ethnic, or cultural group of which the applicant is a member, or favored a group of which he or she is not a member, and that such discrimination conferred material harm on the applicant.

Third, the current non-presumptive test under 13 C.F.R. § 124.103(c) would be removed, making the new test the sole test for establishing social disadvantage.

Fourth, the process for group inclusion on the rebuttable presumption list would be eliminated entirely.

However, the proposed rule applies only to individually owned 8(a) applicants and does not affect entity-owned firms, including businesses owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations.

What Does It Mean to Be Impacted by ‘Unlawful’ DEI Programs?

The most significant aspect of the proposed rule is its explicit incorporation of unlawful DEI programs as a basis for establishing social disadvantage. The proposed regulatory text at 13 C.F.R. § 124.103(b)(3)(ii) provides that an applicant must show evidence that a government or private entity’s action, policy, rule, regulation, or other practice “favored other groups, excluding the citizen’s group, or disadvantaged the citizen’s group.” The regulation then provides a non-exhaustive list of qualifying actions, which includes:

• Unlawful diversity, equity, and inclusion programs or policies
• Unlawful affirmative action programs or policies
• Race-based quotas, set-asides, or hiring targets
• Any policies or programs that favored some groups over others on the basis of race

SBA provides two specific examples in the proposed regulatory text. First, as discussed above, prior iterations of 13 C.F.R. § 124.103 that excluded an applicant’s racial or ethnic group from the rebuttable presumption would themselves qualify as discriminatory government action. Second, situations where the applicant’s group was disadvantaged in college or university admissions decisions or otherwise discriminated against by a private entity in an unlawful manner, as contemplated in recent U.S. Supreme Court decisions addressing affirmative action programs.

The term “material harm” is defined in the proposed rule as “loss of access to or diminished opportunities related to economic advancement.” To establish individual harm, the applicant may self-certify that he or she (1) was a member of the relevant group at the time of the discriminatory action or during the effective period of the relevant policy, and (2) suffered material harm because of that action. The applicant must also submit evidence that the government or private entity’s action favored or disfavored groups. Sufficient evidence may include materials on government, university, and corporate websites; policies, regulations, guidance, procedures, or documents; statements by officials; reports, audits, or findings; court decisions; or administrative rulings.

Notably, the proposed test does not require the applicant to show that the discrimination directly impacted their entry into or advancement in the business world, which was a requirement under the prior non-presumptive test. Instead, the material harm standard of “loss of access to or diminished opportunities related to economic advancement” is broader and can be self-certified.

Implications of 8(a) Program Changes for Employers

Although this proposed rule is directed at SBA’s small business certification program and not at employers broadly, it carries several implications worth monitoring.

Signaling on What Constitutes “Unlawful” DEI

The rule does not define what makes a DEI program “unlawful,” but its examples and legal citations point toward programs involving race-based preferences, quotas, set-asides, or hiring targets, particularly those that a court has found or could find to violate Title VII of the Civil Rights Act of 1964 or the Equal Protection Clause of the Fourteenth Amendment. This is consistent with the administration’s broader posture toward workplace DEI initiatives under Executive Orders 14173 and 14398, and it reinforces the growing regulatory environment in which race-conscious workforce programs face heightened scrutiny. Indeed, the phrase “unlawful diversity, equity, and inclusion programs or policies” echoes technical assistance from, in particular, the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC has stated that DEI is a broad term not defined in Title VII and that “DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” Further, the EEOC has cautioned that race or sex preferences are not lawful regardless of any “business interests in ‘diversity, equity, or inclusion.’”

Potential Evidentiary Use of Employer DEI Programs

Under the proposed test, an applicant seeking 8(a) certification could point to a corporation’s DEI policies as the basis for establishing social disadvantage. Sufficient evidence could include corporate policies, guidance documents, statements by corporate officials, reports, and audits. While this alone does not create new legal liability for employers, it does create a federal regulatory framework in which corporate DEI programs are treated as evidence of discrimination against excluded groups. Employers should be aware that their DEI policies and programs could become part of the administrative record in 8(a) certification proceedings.

Limited Direct Impact on Larger Employers

The 8(a) program is limited to small businesses, and the proposed rule will primarily affect the approximately 4,190 individual applicants annually. Companies that exceed SBA size standards will not be directly impacted. The broader significance is thematic: the rule reflects the administration’s view that race-conscious programs constitute actionable discrimination and creates a regulatory mechanism that rewards individuals who can demonstrate harm from such programs. However, many larger employers are federal contractors and may have exposure to the 8(a) program through their Federal Acquisition Regulatio (FAR) Part 19–related subcontracting programs. Further, for federal contractors and grant recipients, the proposed SBA rule should be viewed alongside Executive Order 14173’s certification framework, which requires federal contractors and grant recipients to certify that they do not operate programs promoting DEI that violate applicable federal antidiscrimination laws.

Related Developments in the DOT DBE Program

The SBA proposal also fits within a broader federal shift away from race- or sex-based presumptions in small-business contracting programs. The U.S. Department of Transportation’s (DOT) October 2025 DBE (Disadvantaged Business Enterprise) and ACDBE (Airport Concession DBE) interim final rule similarly removed race- and sex-based presumptions of social and economic disadvantage after the DOT and the U.S. Department of Justice (DOJ) concluded that those presumptions violated equal-protection principles. But the two frameworks diverge in important ways. The DOT now requires all DBE and ACDBE owners to make an individualized showing, supported by a personal narrative and evidence of economic hardship, systemic barriers, denied opportunities, and resulting economic harm. SBA’s proposed 8(a) rule, by contrast, would allow a U.S. citizen to establish social disadvantage through evidence that a governmental or private entity favored or disfavored racial, ethnic, or cultural groups, coupled with self-certification of group membership and material harm.

Looking Ahead

Comments on the SBA’s proposed rule are due on or before July 13, 2026. SBA has requested comment on any reliance interests that would be implicated by these proposed changes, though it does not currently intend to apply the new test to current participants. Given that SBA has not approved a new 8(a) application since August 2025 and the number of active firms has fallen below 3,000, the rule will primarily affect the pipeline of new applicants.

For employers, while the direct impact on companies too large for the 8(a) program is negligible, the rule’s treatment of corporate DEI policies as evidence of discrimination is consistent with broader enforcement trends and is worth monitoring as part of an overall compliance strategy.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• The European Union has provisionally agreed to delay the implementation of high-risk AI regulations in employment decisions until December 2, 2027.
• Subject to formal adoption, the agreement would delay the requirements for “high-risk” systems, which include those intended to be used to make decisions affecting employment terms, promotion, termination, task allocation, and monitoring or evaluating workers’ performance.
• Although the revised deadline is expected, employers may still want to prioritize preparing for compliance by the original deadline considering the scope of the EU AI Act’s requirements.

New Deadline Pending

On May 7, 2026, the European Parliament, Council of the European Union, and the European Commission reached a provisional agreement on a proposal, the Digital Omnibus on AI, to amend parts of the EU AI Act. On June 16, 2026, the European Parliament approved the provisional agreement, which now must be formally approved by the Council before it becomes law.

Notably, among the changes, the proposal would delay the application of the AI Act’s requirements for high-risk AI systems, which include those used in employment, until December 2, 2027.

Once the agreement is approved by the Council, the amendments would enter into force three days after publication in the Official Journal of the European Union. Publication is expected before August 2026.  

For employers, the key point is that the delay is not a repeal. Employment-related AI remains squarely in the AI Act’s high-risk category when used for recruitment, selection, promotion, termination, task allocation, or performance monitoring. Although the new deadline is expected to become official beforehand, employers may want to continue preparing for the August deadline out of an abundance of caution.

Regulation of High-Risk Systems

The EU AI Act takes a risk-based approach that subjects AI tools to a spectrum of four levels of increasing regulation based on perceived potential risks: (1) “unacceptable risk,” which are banned; (2) “high risk”; (3) “limited risk”; and (4) “minimal risk.”

Under Annex III of the AI Act, high-risk employment systems include AI used to place targeted job advertisements, analyze and filter job applications, and evaluate candidates. They also include AI used to make decisions affecting employment terms, promotion, termination, task allocation based on individual behavior or personal traits, and monitoring or evaluating workers’ performance or behavior.

Overall, the AI Act requires employers to notify workers that a high-risk AI system is used in the workplace, provide human oversight and intervene when necessary, monitor for potential discriminatory impacts, record AI system logs, and ensure compliance with data privacy requirements. Employers using a vendor’s AI system for the employment purposes described are also required to follow the vendor’s instructions, which vendors are legally required to provide.

Next Steps

The provisional agreement and the delay in compliance deadlines may reflect an acknowledgment that more time may be needed to adapt to the new regime. If formalized, this will provide additional time to make the necessary compliance adjustments.

However, the changes merely delay certain deadlines and do not substantially change impending compliance obligations. High-risk workplace AI remains regulated. Employers may wish not to wait and begin preparing now, including reviewing which AI tools they use and how they are used, in order to develop and implement a compliance plan.

Ogletree Deakins’ Cross-Border Practice Group and Technology Practice Group will continue to monitor developments and will provide updates on the Cross-Border, Cybersecurity and Privacy, Employment Law, and Technology blogs as additional information becomes available.

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Quick Hits

• An MSA is a contract in which both the employer and the employee agree to end the employment relationship by mutual consent, often involving an additional payment from the employer in exchange for a release of claims.
• MSAs are particularly useful in jurisdictions with stringent termination laws and can help employers avoid prolonged disputes or litigation by securing releases of potential employment claims.
• A best practice for employers is to assess local laws, evaluate the risk of unilateral termination, understand enforceability requirements, and finalize a separation strategy tailored to local customs and expectations.

MSAs Explained

Unlike the at-will framework familiar to U.S.-based companies, most countries around the world require robust justification or detailed procedures before an employer can unilaterally discharge an employee. An MSA is a contract in which the employer and the employee agree to end the employment relationship by mutual consent. Typically, in exchange for the employee’s agreement to a full and final release of claims, the employer provides an additional payment, often referred to as an ex gratia amount, on top of any statutory termination entitlements. MSAs usually include confidentiality terms to protect the employer and may have other features to make the offer more attractive or enforceable, depending on the jurisdiction.

MSAs’ Value

MSAs are especially valuable in jurisdictions where unilateral terminations are difficult or risky. Local laws may require robust justification or procedures to terminate for misconduct, performance issues, or redundancy. Some countries impose “employment for life” standards, meaning that employment termination is treated as a last resort after the employer has exhausted other options such as reassignment or retraining. In these environments, the core value of an MSA from the employer’s perspective is the release of potential employment claims, thereby avoiding prolonged disputes or litigation. The effectiveness of this release varies by jurisdiction, underscoring the need to align the strategy with local laws and practices.

Evaluating the Need for an MSA: A Four-Step Framework

When deciding whether to pursue an MSA rather than unilateral termination of employment, employers may want to consider a four-step evaluation process.

• Assess local laws: Understand the requirements for employment termination in the relevant jurisdiction, including mandatory payments.
• Evaluate the risk profile: Analyze the risk of unilateral termination based on facts such as the documentation, performance standards, and/or any required remediation steps.
• Understand enforceability requirements: Identify what makes an MSA valid and enforceable in the jurisdiction, such as cooling-off or consideration periods, payments in exchange, required terms, or specific signature requirements.
• Finalize the separation strategy: Align the separation strategy with local customs and expectations, including negotiation approaches, ex gratia payment ranges, and the timing for presenting the agreement.

Step 1: Assessing Local Law

Employers will want to identify what is legally required to terminate employment generally in the relevant country, and map the mandatory termination payments under local law. These requirements may include statutory severance, pay in lieu of notice, and a payout for accrued leave. Together, any mandatory payments form the “floor” for the purposes of calculating the ex gratia amount needed to secure a release.

Step 2: Evaluating the Risk Profile

This step is a facts-plus-law exercise. Can the employer meet the legal standard for employment termination in that country? For a performance-based termination, for example, the employer may want to consider whether the performance documentation is strong and whether any required steps, such as warnings or improvement plans, were properly followed. If the local legal standard is not met, the risk of an adverse outcome increases.

Employers may also want to evaluate the potential remedies and timelines in the relevant jurisdiction. In some countries, unfair termination claims can lead to substantial back-pay awards, and if proceedings typically take a long time to reach judgment, the potential exposure can grow over time. Answering the question, “What could this cost if the employee wins?” helps frame whether an MSA is the better path, and, if so, what ex gratia range makes sense.

Step 3: Understanding Enforceability Requirements

Enforceability considerations fall into two main categories. The first relates to validity requirements. Some jurisdictions impose mandatory notice or consideration periods, require specific clauses, mandate approval through local labor authorities, or even insist on wet-ink signatures to make the agreement valid. Missing any of these can jeopardize the entire agreement.

The second category relates to enforcement outcomes, which vary widely. In some jurisdictions, a valid MSA fully bars later claims. In others, an employee may still bring a claim, but any award is offset by the ex gratia payment already made. In still other jurisdictions, an MSA may neither bar nor offset future claims, but it can deter litigation because the employee has already accepted a negotiated package. These differences directly influence both the decision to use an MSA and the pricing of the ex gratia component.

Step 4: Finalizing the Separation Strategy

When building a separation strategy, employers may want to consider developing talking points tailored to the specific jurisdiction and situation, establish clear negotiation parameters for the ex gratia payment (including a rational opening offer and a firm ceiling), and consider the right time to present the agreement. Tone and process matter enormously in these negotiations. In Korea, for example, it is common for employees to record termination meetings for later use in court, making careful word choice essential. In Finland, authorities closely scrutinize whether coercion was a factor, and if the process appears pressured or intimidating, a court may nullify the MSA. The goal is always a clear, respectful, and voluntary process that will withstand scrutiny if challenged.

Timing and sequencing also require careful thought. In some jurisdictions, such as Taiwan, it can be strategically advantageous to effect the termination first and then negotiate a post-termination settlement. This approach can be important because in certain countries, an employee who files a claim gains protection from employment termination while the litigation is pending. If an employee senses an impending separation and preemptively files, the employer can find itself locked into the very relationship it is trying to end. However, sequencing strategies are highly fact- and jurisdiction-specific and ideally should be coordinated with counsel who understands local nuances.

Regional Variations

Strategic considerations may vary not only from country to country but also from region to region within a single country. China provides a useful illustration. Negotiating an MSA is common in China because unilateral terminations carry significant legal and financial risk. A typical separation package will cover all statutory entitlements (commonly referred to as “N,” representing the minimum severance requirements), pay in lieu of notice, and accrued annual leave. On top of those entitlements, the ex gratia is often described using the formula “N plus X,” where X represents the additional number of months’ pay offered above the statutory minimum.

The X component may vary by location within China. Shenzhen’s market practice, for example, differs from Shanghai’s, and the amount may also depend on local court practices and the nature of the separation. Further, individual separations may carry different expectations than mass redundancies.

Key Takeaways

In conclusion, while consistency in corporate principles is typically helpful, execution must be locally customized to be maximally effective. By following the foregoing guidelines, multinational employers can better navigate the complexities of global MSAs and manage employee separations with greater confidence and reduced risk.

Ogletree Deakins’ Cross-Border Practice Group and Global Reorganizations Practice Group will continue to monitor developments and will provide updates on the Cross-Border and Global Reorganizations blogs as additional information becomes available.

Samantha R. Duncan is senior counsel in the Washington, D.C., office of Ogletree Deakins.

Kristyn L. Lambert is of counsel in the New Orleans office of Ogletree Deakins.

Margaret E. Ventricelli, a practice assistant in the Stamford office of Ogletree Deakins, contributed to this article.

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In October 2025, Philadelphia Mayor Cherelle Parker signed amendments to the FCRSSO, effective January 6, 2026. As enacted, the amendments authorized, but did not require, the Philadelphia Commission on Human Relations to create a form of required pre-adverse action notice, an updated summary of rights, and a statement concerning evidence of error or rehabilitation. The Commission has now published a document, titled, “Notice: 2026 amendments to Fair Chance Hiring Law,” but has not clarified how this document relates to these requirements.

Quick Hits

• The Philadelphia Commission on Human Relations published its “Notice: 2026 amendments to Fair Chance Hiring Law” regarding the FCRSSO, but has not yet clarified its significance.
• The notice follows amendments that went into effect on January 6, 2026, which narrowed the conviction records employers may consider, defined ambiguous terms, and confirmed that an individual must be allowed to respond with evidence of criminal record inaccuracy or provide an explanation before any final adverse decision.
• Because the FCRSSO applies to all criminal history information, overlaps with federal and state requirements when a consumer reporting agency is involved, and provides a private right of action, employers should consider that a summary of rights is only one element of a broader compliance review.

Summary of the 2026 Amendments

The amendments resolved long-standing ambiguities while imposing additional restrictions.

For instance, Philadelphia defined “felony,” “misdemeanor,” “summary offense,” and “incarceration”; expanded the definition of “adverse action”; and confirmed that job advertisements fall within the definition of “employment process,” meaning that any advertisement referencing a background check must disclose that an individualized assessment will occur. The amendments also established that an individual must be allowed to dispute or explain a criminal record before a final adverse decision.

Absent a contrary requirement of state or federal law, employers may not consider misdemeanor convictions more than four years old, measured from the later of the date of arrest or release from incarceration, and may not consider summary offenses. Employers must also disregard records known to be sealed or expunged. Before taking adverse action, employers must provide an employee or applicant with a summary of rights and an affirmative statement that they will consider evidence of error, rehabilitation, or mitigation, and they must furnish instructions for submitting that information. The amendments also require a defined response when an individual files a complaint and adds retaliation protections.

As before, employers must post a summary of the ordinance requirements in a conspicuous location both on the employer’s website and its premises.

Additional Considerations for Employers

The FCRSSO should be implemented in conjunction with other applicable state and federal laws. It is important to note that the FCRSSO requirements apply to all criminal history, irrespective of the source. Pennsylvania’s Criminal History Record Information Act limits employers to felony and misdemeanor convictions that relate to job suitability; the federal Fair Credit Reporting Act imposes its own disclosure, pre-adverse, and adverse action requirements when the information is obtained from a consumer reporting agency.

Providing an FCRSSO summary of rights satisfies only one component of these obligations. Because the amendments require that an opportunity to respond be provided before a final adverse decision, the sequencing and documentation of notices is now central to defending potential litigation. Absent further guidance from the Philadelphia Commission on Human Relations, employers should not assume the “Notice: 2026 amendments to Fair Chance Hiring Law” constitutes the required summary of rights. Ogletree Deakins has sought clarification from the Commission but has not yet received a response.

Next Steps

Employers with operations in Philadelphia should consider taking the following actions:

• Utilize the FCRSSO process for all criminal history information when used as a basis for an employment decision.
• Review job advertisements and application materials for impermissible criminal-history inquiry requirements and ensure any background check reference discloses the individualized assessment.
• Revise the scope of the search history to exclude misdemeanor convictions more than four years old and to disregard summary offenses.
• Confirm the notice sequence affords an employee or applicant an opportunity to respond before any final adverse decision, and document timing accordingly.
• Consider a broader, privileged assessment of screening practices across all jurisdictions where the company hires.

Philadelphia pre-adverse action letters, adverse action letters, and law summaries are available on the Ogletree Deakins Client Portal to Advanced– and Premium-level subscribers. For more information on the Client Portal or a Client Portal subscription, please contact clientportal@ogletree.com.

Ogletree Deakins’ Philadelphia office, Background Checks Practice Group, and Retail Industry Group will continue to monitor developments and will provide updates on the Background Checks, Retail, and Pennsylvania blogs as additional information becomes available.

Brandon R. Sher is a shareholder in Ogletree Deakins’ Philadelphia office and co-chair of the firm’s Retail Industry Group.

Jennifer L. Pacicco is an associate in Ogletree Deakins’ Philadelphia office.

Jake H. Weintraub, a law student currently participating in the summer associate program in the Philadelphia office of Ogletree Deakins, contributed to this article.

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Quick Hits

• On June 8, 2026, a Massachusetts federal district court vacated the Trump administration’s $100,000 H-1B fee requirement.
• On June 11, 2026, the administration filed an appeal of the district court’s decision and on June 12, 2026, asked the district court to stay its decision.
• With multiple pending challenges in different circuits, the Supreme Court will likely weigh in.

Background

On September 19, 2025, President Donald Trump issued Proclamation 10973 which imposed a $100,000 fee for new H-1B petitions filed for beneficiaries located outside of the United States. The administration stated that the fee was intended to address perceived abuse of the H-1B program, and protect U.S. workers, specifically focusing on science, technology, engineering, and mathematics (STEM) occupations. The fee became effective September 21, 2025, and applied to new H-1B petitions for beneficiaries subject to consular processing.

The fee was subsequently challenged in multiple federal courts.

Analysis and Impact

In State of California v. Noem, twenty Democratic state attorneys general challenged the fee proclamation, arguing that the proclamation exceeded the president’s statutory authority and that the agency guidance implementing the fee violated the Administrative Procedure Act (APA). On June 8, 2026, the U.S. District Court for the District of Massachusetts granted summary judgment in favor of the states on all claims (constitutional tax authority, APA violation, and statutory authority) and vacated the policy implementing the fee in its entirety.

The U.S. District Court for the District of Massachusetts found that the $100,000 fee proclamation was not an immigration restriction, but rather a tax, which the president lacked authority to impose. Additionally, the court determined that the fee proclamation violated the APA as the agency’s implementation of the fee failed to follow statutory procedures.

On June 11, 2026, the Trump administration filed a notice of appeal to the First Circuit Court of Appeals. Then, on June 12, 2026, the administration sought a stay of the district court’s order pending appeal which the court granted.

Notably, the U.S. District Court for the District of Massachusetts’s holding starkly contradicts a conclusion reached in the U.S. District Court for the District of Columbia, which upheld the fee proclamation in a lawsuit brought by the U.S. Chamber of Commerce and the Association of American Universities. The decision in that case is currently on appeal before the United States Court of Appeals for the D.C. Circuit, which held oral argument in March 2026. Meanwhile, a lawsuit challenging the fees was also brought by healthcare organizations, labor unions, and educational institutions remains pending in the U.S. District Court for the District of California. The government’s appeal of the U.S. District Court for the District of Massachusetts’s decision adds to a potential circuit split which could end up in the Supreme Court of the United States.

Key Takeaways

• The precise scope of the stay issued by the U.S. District Court for the District of Massachusetts is unclear and U.S. Citizenship and Immigration Services (USCIS) has not issued guidance about whether it intends to continue collecting the fee.
• As remaining lawsuits challenging the proclamation continue, the rules surrounding the fee proclamation are subject to change.
• The ultimate outcome of the rule will likely be decided in the U.S. Supreme Court.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will post updates on the Immigration blog as additional information becomes available.

For additional insights into this development, Ogletree Deakins’ Immigration Practice Group will hold a webinar entitled “Federal Court Blocks $100,000 H-1B Fee: Key Takeaways and Next Steps,” on June 17, 2026, from 2:00 p.m. – 2:30 EDT. Register here.

For more insight into this development and other critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

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