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February 1, 2024

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

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

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 16, 2024

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

Kody Condos

by Kody Condos 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:

“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 >>

October 2, 2023

SEC Settlement A Reminder for Employers: Review Your Separation Agreements

by Mark Wiletsky

Mark Wiletsky

Companies routinely use separation agreements with departing employees. Through those agreements, the employee receives some type of separation benefit (typically a payment or severance), and in exchange the employee waives and releases any potential claims against the company. The goal is to avoid an existing or potential dispute, claim, or lawsuit. But if companies do not routinely review and update those agreements, they risk the agreement being challenged or invalidated. Even worse, companies are sometimes investigated and forced to pay fines or penalties for provisions in these agreements. A recent settlement announced by the Securities and Exchange Commission (SEC) provides a strong reminder to employees to regularly review and update agreements used with employees.

The Facts

On September 19, 2023, the SEC announced a settlement with a real estate services firm. According to the announcement, the company violated the SEC’s whistleblower protection rule with separation agreements it used between 2011 and 2022. The agreements contained a common provision: employees had to affirm that they had not filed a complaint about the company with any state or federal court or local, state, or federal agency. These types of representations are typically included in separation or settlement agreements to ensure that any pending complaint or charge is resolved in conjunction with the separation or settlement agreement. Read more >>

September 28, 2023

Worship in the Workplace and Reasonable Accommodations

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

Answer: The short answer is: Maybe. Employers must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship. For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Supreme Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers should not try to suppress all religious expression in the workplace. Read more >>

September 27, 2023

What Can Employers Do When Employee Threats Are Related To a Disability?

Jordan Walsh

By Jordan Walsh

The Americans with Disabilities Act (the “ADA”) generally prohibits employers from taking adverse employment actions against an employee because of the employee’s disability. To challenge an employment action under the ADA, a plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) she is qualified for her position, even with her disability, with or without a reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015). If this showing is made, the burden shifts to the employer to present a legitimate, nondiscriminatory reason for the employment action. See Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). If the burden is met the plaintiff must establish that the employer’s reason for the adverse employment action was pretextual. See id. Read more >>

February 23, 2023

NLRB Changes the Game for Confidentiality Provisions in Severance Agreements

By Greg Saylin, Steven Suflas, Tyson Horrocks, Brit Merrill, and Kody Condos

This week, the National Labor Relations Board (NLRB or “Board”) issued a decision that could significantly shape the terms of severance agreements with departing employees. Under this decision, all employers are prohibited from including provisions that prohibit disparagement of the employer or prevent the employee from discussing the terms of the agreement. However, the opinion is certain to be challenged in the federal appellate courts.

Often, non-unionized employers do not think the National Labor Relations Act (NLRA or “the Act”) applies to them. However, that is not true. Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Read more >>

December 5, 2022

Can An Employee Be Required to Sign a Noncompete Agreement Before They Receive Their Final Paycheck?

Juan Obregon

By Juan Obregon

Question: Can we require an employee to sign a noncompete agreement before they receive their final paycheck?

Answer: In short: no, employers cannot withhold an employee’s final paycheck until they sign a non-compete. Doing so likely violates Colorado’s restrictive covenant statute (Colo. Rev. Stat. 8-2-113) and the Colorado Wage Claim Act (Colo. Rev. Stat. 8-4-101, et seq).

Under Section 8-4-109 of the Colorado Wage Claim Act, when the employer terminates an employee, “wages or compensation for labor or service earned, vested, determinable, and unpaid at the time of such discharge is due and payable immediately.” When an employee quits “the wages or compensation shall become due and payable upon the next regular payday.” Either way, if the employee performed the labor to earn those wages, they are due and failing to pay it timely could subject the employer to significant penalties. Read more >>

December 1, 2022

New Guidance on Bonuses and Commissions May Cause Headaches for Employers

Juan Obregon

By Juan Obregon

Organizations commonly require employees to be employed on the date a commission or bonus is paid to receive the commission or bonus. The Colorado Department of Labor and Employment (CDLE), which interprets and administers Colorado’s Wage Act, recently indicated that practice is not permissible, which means employers will need to revisit their bonus agreements and commission plans sooner rather than later. The failure to heed the CDLE’s guidance may result in costly wage claims.

Overview

The Colorado Wage Act requires employers to pay employees the wages and other compensation they earn. Non-discretionary bonuses and commissions are considered wages. Under the Colorado Wage Act, an employee is not entitled to wages or compensation unless such amounts are “earned, vested, and determinable.” The question, of course, is: when are bonuses or commissions earned, vested, and determinable? Read more >>

November 28, 2022

Ballot Question 2’s Passing Negates Nevada’s Two-Tier Minimum Wage

By Dora Lane

Dora Lane

Effective July 1, 2024, Nevada’s two-tier minimum wage will no longer exist as a result of Ballot Question 2’s passing on November 8, 2022.

By way of background, in 2006, Nevada voters approved a two-tier minimum wage system applicable to employees subject to minimum wage requirements. Since then, Nevada’s minimum wage has increased over time. As of July 1, 2022, the minimum wage is $9.50/hour for employees who are provided qualifying health benefits and $10.50/hour for employees who are not provided qualifying health benefits. Nevada Assembly Bill 456, which passed in 2019, mandated that the applicable minimum wage rates rise gradually until 2024 when they would reach $11/hour and $12/hour for the respective employee tiers. Read more >>