April 17, 2024

Navigating the National Interest Waiver (NIW) for Green Card Pursuit: A Comprehensive Guide

Samantha Wolfe

In the pursuit of U.S. permanent residency, employers often turn to the PERM labor certification process to sponsor employees. However, there exist alternative pathways to obtaining a green card, one of which is the National Interest Waiver (NIW). In this article, we’ll explore the NIW option in detail, highlighting its benefits, eligibility criteria, and the application process.

The National Interest Waiver (NIW) Option

The NIW offers qualified individuals a pathway to bypass the labor certification process typically required for employment-based green cards. The Biden administration’s commitment to bolstering America’s global competitiveness through the STEMM fields has further emphasized the importance of the NIW program, expanding opportunities for skilled professionals. Read more >>

April 10, 2024

USCIS Announces New Guidance on the Validity Period for Form I-693 Medical Examination and Vaccination Record

Ann Lee

by Ann Lee

The U.S. Citizenship and Immigration Services (USCIS) has recently announced a significant update regarding Form I-693, Report of Immigration Medical Examination and Vaccination Record. Effective immediately, any Form I-693 that has been properly completed and signed by a civil surgeon on or after November 1, 2023, will no longer have an expiration date. This means that such forms can now be used indefinitely as evidence to demonstrate that the applicant is not inadmissible on health-related grounds.

This decision by USCIS follows careful consultation with the Centers for Disease Control and Prevention (CDC) and takes into account advancements in public health electronic notification systems. However, USCIS officers have reserved discretion to request more evidence or a new or updated Form I-693 if they have reason to believe the applicant’s medical condition has changed since the civil surgeon signed the Form I-693, or that the Form I-693 submitted does not accurately reflect the applicant’s medical condition and the applicant may be inadmissible on health-related grounds. Read more >>

April 5, 2024

Pay Obligations During Doctor-Recommended Leave of Absence

Dana Dobbins

By Dana Dobbins

Question: We have an employee whose essential functions require the use of their hands. They have requested an accommodation, and their physician has recommended time off until specific medical restrictions can be determined. What is our obligation to pay this employee during this doctor-recommended leave of absence?

Answer: Depending on your policies, you may allow or require the employee to use accrued paid vacation or sick leave towards their absence. Beyond paying appropriate sick leave and perhaps applying paid vacation leave, an employer is not otherwise required to pay an employee’s regular wages while the employee is on an extended medical leave of absence. Read more >>

April 4, 2024

AI in the Workplace: Crafting Policies for Employees’ Use of Generative AI

Dana Dobbins

By Dana Dobbins

Artificial intelligence (AI) is becoming increasingly prevalent in workplaces, providing new opportunities as well as new challenges for employers and employees. While AI has the potential to improve efficiency and productivity, its use also raises important questions around issues like privacy, discrimination, and job displacement. Employers who choose to implement AI should consider including a provision in their employee handbook, or a separate policy, specifically addressing its use. Such a provision or policy can help mitigate risks, provide clarity for employees, and demonstrate an employer’s commitment to using AI ethically and responsibly.

Employers who incorporate AI into the workforce should develop policies governing appropriate use of generative AI, regularly update those policies as laws and technology continue to change, and enforce their policies. Employers should consider the following provisions in their AI use policies:

Specify Which Employees May Use AI and Require Prior Approval

For any number of reasons, employers may be willing to let some teams or groups, but not others, use generative AI technology, especially while the employer is still examining how AI can be incorporated in their company or industry. An AI policy should specify which departments, if any, are permitted to use AI. Read more >>

February 12, 2024

Beyond the Scales: Addressing Weight Bias in the Workplace

Leslie Perkins

by Leslie Perkins

When you think of protections against discrimination in the workplace, the first things that come to mind are traditional characteristics such as race, color, religion, sex, national origin, age, and disability. However, in the coming years we could see discrimination based on weight added to that list.

Current Measures Against Body Discrimination

Currently, there is no federal law protecting employees from discrimination based on weight. However, one state (and a handful of cities) have implemented statutes that ban discrimination based on weight to ensure that people of all sizes and heights are given equal access to employment and, in some instances, housing. Read more >>

February 7, 2024

February 2024 Visa Bulletin: Insights into Employer-Based Immigrant Petitions and Visa Backlogs

Sarah Bileti

By Sarah Bileti and Samantha Wolfe

As we delve into the February 2024 Visa Bulletin, it’s evident that the priority dates for employer-based immigrant petitions continue to face minimal advancement, contributing to prolonged wait times for immigrant visas throughout fiscal year 2024. Let’s examine the key highlights and implications of this latest update.

Key Highlights:

Samantha Wolfe

Limited Movement in EB-2 and EB-3 Categories: USCIS and the State Department have reported minimal progress in the EB-2 and EB-3 categories for various regions, with exceptions for India and China.
Use of Dates for Filing Chart: USCIS continues to utilize the Dates for Filing chart to determine eligibility for I-485 filings, reflecting priority dates expected to become current during the fiscal year.
Impact on India and China: The final action dates for China and India across all employment-based categories, except for the Other Workers category for India, show no significant advancement.
Continued EB-1 Category Retrogression: Despite hopes for advancement, the EB-1 category, particularly for China and India, has experienced little to no movement, impacting individuals seeking shorter green card wait times.

February 1, 2024

Immigration Alert: USCIS Announces H-1B Cap Registration Dates and Significant Fee Increases

Sarah Bileti

By Sarah Bileti and Samantha Wolfe

United States Citizenship and Immigration Services (USCIS) made several noteworthy announcements this week regarding H-1B cap registration timing, the expansion of online filings, and fee increases for immigration and naturalization benefit requests.

FY 2025 H-1B Cap Initial Registration Period & Online Filing

Samantha Wolfe

USCIS confirmed that the initial H-1B cap registration period for the FY 2025 cap will open at noon Eastern on March 6, 2024, and run through noon Eastern on March 22, 2024. In addition, on February 28, 2024, USCIS will launch new organization accounts in the USCIS online portal. This enhancement will allow collaboration between multiple employer representatives and their external legal teams in preparing and submitting H-1B cap registrations and H-1B petitions and associated requests for premium processing. USCIS will begin accepting electronically filed non-cap H-1B petitions and associated requests for premium processing on February 28, 2024, and cap subject H-1B petitions for beneficiaries selected in this year’s cap lottery on April 1, 2024. While electronic filing will become available as of these dates, petitioners will continue to have the option to file paper H-1B petitions if they prefer. Dependent applications will not be eligible for electronic filing.

USCIS Published a Final Rule Adjusting Fees

For the first time since 2016, USCIS published a final rule on January 30, 2024, adjusting certain immigration related fees, stating that these increases will cover a greater share of the agency’s operating costs and support more efficient processing of applications. According to the final regulation, the “fee rule is not intended to reduce or limit immigration. These fee adjustments reflect DHS’s best effort to balance access, affordability, equity, and benefits to the national interest while providing USCIS with the funding necessary to maintain adequate services.” The new fees, some of which are highlighted in the chart below, will go into effect on April 1, 2024. Read more >>

January 30, 2024

Navigating USCIS Policy Updates on Extensions of Stay and Change of Status Requests

Ann Lee

by Ann Lee and Samantha Wolfe

On January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) introduced significant changes regarding untimely filed requests for change of status or extension of stay for nonimmigrants, particularly under exceptional circumstances. This updated guidance, effective immediately, empowers USCIS with the discretion to excuse delays in these filing processes.

Understanding the Background

Samantha Wolfe

Nonimmigrants admitted to the United States for specific periods often seek extensions to continue activities permitted under their nonimmigrant status. Similarly, some individuals may aspire to change their status to another nonimmigrant classification, subject to meeting specific requirements. The extension and change of status applications or petitions are required to be filed within a certain time period of an event, such as a status expiration.

While USCIS typically maintains a stance against approving untimely filed requests, this policy revision now allows for discretion in cases where individuals face obstacles in filing within the prescribed timeframe and clarifies examples of extraordinary circumstances. Given the discretionary nature of the policy update, it remains imperative for individuals to uphold their status and adhere to filing deadlines for change of status or extension of stay requests. Read more >>

January 23, 2024

Business Immigration – Looking Ahead to the 2024 H-1B Cap Lottery and Other Developments Employers Should Watch For

Sarah Bileti

By Sarah Bileti

Over the past year the immigration landscape has been shaped by a myriad of factors including mass tech layoffs, the easing of COVID related travel restrictions, and changing employer attitudes regarding remote work. As we move into the new year there are several issues and trends employers should be aware of.

Changes to the H-1B Cap Lottery Registration System.

The H-1B visa is the most used and sought after nonimmigrant employment visa for foreign professional workers with a congressionally mandated annual quota of 65,000 and an additional 20,000 for foreign nationals holding a U.S. master’s or advanced degree.

Given the limited number of H-1B visas available annually, the demand far surpasses the supply. As a result, United States Citizenship and Immigrations Services (USCIS) utilizes an annual lottery system that requires employers to submit an electronic registration form for each foreign worker they wish to employ in H-1B status. The lottery registration period generally runs for the first two weeks of March each year, with results emailed to employers on or before April 1st. USCIS received 483,927 registrations in 2022 and 780,884 registrations in 2023, representing an unprecedented increase of over 60% year on year. Read more >>

January 16, 2024

Does Your Business Properly Classify Independent Contractors? DOL Publishes Final Rule on Worker Classification

Kody Condos

by Kody Condos, Camila Moreno, and Greg Saylin

On January 9, 2024, the U.S. Department of Labor (“DOL”) published its final rule defining the term “independent contractor” and setting forth the new test for determining independent contractor / employee status (the “Rule”). The DOL estimates that “there are 6.5 million small establishments or governments” relying on independent contractors that “could be affected by “ the new Rule.[1]

Greg Saylin

The Rule, effective March 11, 2024, differentiates an independent contractor from an employee if the worker is “as a matter of economic reality, in business for themselves,” meaning, the worker cannot be economically dependent on the potential employer for work.[2] The “economic reality” does not focus on the amount of income earned by the worker, or whether the worker has other sources of income. Rather, the Rule applies the following six factors to determine economic independence:

Camila Moreno

“The worker’s opportunity for profit or loss;”
“Investments by the worker and the potential employer;”
“The degree of permanence of the relationship;”
“The nature and degree of the potential employer’s control over the work;”
“The extent to which the work is “integral” to the potential employer’s business;” and
“The worker’s skill or initiative.”

The DOL and courts are to utilize a “totality of the circumstances” approach in applying the test. And, while the DOL articulates only six factors, the Rule provides that other (unnamed) factors may also be relevant in any given case.[3]

The Factors, Explained

While some of the factors are reminiscent of prior guidance and other tests, the Rule deviates from precedent and provides important clarification on the factors to be applied.[4] It also deviates from its predecessor in some very important ways. Read more >>