July 2016 Visa Bulletin Released

july 2016 visa bulletinProjections include EB-1 Cutoff Date for China and India, Slow EB-2 and EB-3 Movement, EB-4 Backlogs for Latin America to ease, and EB-5 China to advance slightly.

 

This week, the Department of State (DOS) has released the July 2016 Visa Bulletin. We are three months from the end of the fiscal year and the dwindling visa numbers remaining are likely to bring about tepid advancement in many employment-based categories before October. This Bulletin brings several particular items of note relating to the anticipated movement of final action dates:

  • For the first time in recent collective memory, the State Department is predicting that EB-1 (which is usually “Current”) will have a cutoff date “no later than September” for China and India, but becoming current again in October 2016. Worldwide is expected to remain Current through all relevant times.

  • In the EB-2 category, a date for Worldwide chargeability is likely to be “imposed by September” with a return to “current” in October. The State Department predicts that there will be no forward movement for China EB-2, and India EB-2 will only move one week beyond India EB-3.

  • Limited movement is predicted in EB-3, with the exceptions of India reaching early 2005 and Philippines reaching late 2009 or early 2010.

  • Mexico, El Salvador, Guatemala, Honduras, and Mexico face an EB-4 priority date of Jan. 1, 2010. Although this 6.5 year backlog may appear daunting, the State Department does caution the following:

Readers should be aware that the establishment of the Employment Fourth preference Final Action date of January 1, 2010 does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries under the FY-2016 annual limit, not to indicate how long it will be before applicants will be eligible for final action.”

In October, Mexico EB-4 is projected to become current. El Salvador, Guatemala, and Honduras are anticipated to have a 2015 cutoff date.

  • In the EB-5 realm, China has not advanced from June 2016. The “best case” scenario is a March 1, 2014, cutoff date by September.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for filing Form I-485.

The July 2016 Final Action Dates for Employment-Based Applications are as follows:

July 2016 visa bulletin 1

Likewise, the July 2016 Dates for Filing are:

Jule 2016 visa bulletin 2

©2016 Greenberg Traurig, LLP. All rights reserved.

Lawmakers Continue Focus on TSA Wait Times, While House Spending Panel Approves TSA Funding for FY 2017; Government Officials React to Deadliest Shooting in US History, Worst Terror Attack Since 9/11

TSA wait linesLawmakers Continue Focus on TSA Wait Times, While House Spending Panel Approves TSA Funding for FY 2017

The House Appropriations Committee approved it draft FY 2017 homeland security appropriations measure on Thursday, June 9, including $7.6 billion for the Transportation Security Administration (TSA), $163 million more than in FY 2016 and $21.8 million greater than the Obama Administration’s FY 2017 budget request.  The House Appropriations Committee has yet to approve a request from the U.S. Department of Homeland Security (DHS) for an additional $28 million to help keep airport security lines under control during the ongoing summer travel season.  The Senate Appropriations Committee, which has already approved of its FY 2017 homeland security spending measure increasing funds for TSA, has also signed off on the reallocated funds, the second such request from DHS this year.

On June 7, the House of Representatives approved legislation, the Checkpoint Optimization and Efficiency Act of 2016 (H.R. 5338), aimed at shortening TSA wait times.  The measure would direct both the TSA Administrator and the Government Accountability Office (GAO) to review TSA’s staffing allocation model.  The Act also requires the TSA Administrator to take a number of actions related to the agency’s staffing and resource allocation.  Across the Capitol, TSA Administrator Peter Neffenger testified before a Senate Homeland Security and Governmental Affairs Committee hearing last week, where lawmakers encouraged the agency to increase access to PreCheck, an expedited security screening program.

This Week’s Hearings:

  • Tuesday, June 14: The House Homeland Security Committee Subcommittee on Border and Maritime Security will hold a hearing titled “Overstaying Their Welcome: National Security Risks Posed by Visa Overstays.”

  • Wednesday, June 15: The Senate Homeland Security Committee will hold a hearing titled “America’s Insatiable Demand for Drugs: Examining Alternative Approaches.”

  • Thursday, June 16: The Senate Judiciary Committee will hold a meeting to consider pending legislation and nominations.

Executive Branch Activity

Government Officials React to Deadliest Shooting in US History, Worst Terror Attack Since 9/11

President Barack Obama, senior Administration officials, and lawmakers reacted to the shooting at a crowded Orlando nightclub filled with members of the lesbian, gay, bisexual and transgender community.  As of Sunday night, the shooting, which ended with police storming the club after a three-hour stand-off, had left 50 dead and at least 53 injured.  Reports indicated the alleged shooter had pledged allegiance to ISIS, making it the United States’ worst terror attack since September 11, 2001, and the deadliest mass shooting in the country’s history.

President Obama delivered remarks from the White House early in the day, confirming he had met with his homeland security and national security advisors and assuring Americans that he has “directed that the full resources of the federal government be made available for this investigation.”  Congressman Mike McCaul (R-TX), Chairman of the House Homeland Security Committee, offered thoughts and prayers for the victims and thanked local law enforcement for their efforts responding to the attack, calling it “a sobering reminder that radical Islamists are targeting our country and our way of life.” Senator Ron Johnson (R-WI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, echoed his House colleague, confirming that his committee “will work to support the federal role in investigating this terror attack and protecting against further threats.”  Secretary of Homeland Security Jeh Johnson stated that senior agency officials “are dedicated to investigating this tragedy, along with the FBI and our state and local partners, and supporting the Orlando community in the tragedy’s aftermath.”  Secretary Johnson canceled planned travel to Beijing in light of the attack.

© Copyright 2016 Squire Patton Boggs (US) LLP

Food Packaging: FSANZ Reports on Nanotechnology in Food Packaging Find No Health Risks

food packagingA review of scientific literature on exposure to nanoscale silicon dioxide, titanium dioxide, and silver in food, including from sources of food packaging, did not find any significant health risks, according to the results of a study which was recently commissioned by Food Standards Australia New Zealand (FSANZ).  The results of the study were published in two reports: Nanotechnologies in Food Packaging: an Exploratory Appraisal of Safety and Regulation and Potential Health Risks Associated with Nanotechnologies in Existing Food Additives.

The report on nanotechnologies in food packaging noted that current applications of nanomaterials in food packaging include:

  • Enhancement of barrier properties through the incorporation of nano-fillers (e.g., nano-clay)

  • “Active” food packaging, with controlled release of active substances such as antimicrobials to improve the shelf-life of food (e.g., nanosilver)

  • Improvement of physical characteristics to make the packaging more tensile, durable, or thermally stable (e.g., nano-titanium dioxide, titanium nitride)

The food packaging report states that no evidence was found in the literature review to indicate that nano-clay is likely to cause adverse effects on health when used in food packaging.  Further, the majority of migration studies on nanosilver have shown levels of migration of ionic silver into foods and food simulants below thresholds set by well-established scientific and regulatory bodies, such as the European Food Safety Authority’s (EFSA) specific migration limit (SML) of 0.05 mg Ag/kg food. Overall, the data reviewed for most of the studied nanomaterials in food packaging indicate that migration of intact nanoparticles from food packaging into food simulants is negligible, implying consumer exposure to these materials is likely to be low. The authors conclude that this suggests “there is low potential for safety issues related to the ‘nano-ness’ of the materials incorporated into food packaging.”

The report points out that the majority of the existing patents for nanomaterials originate in the United States.  No patents for nanomaterials in food packaging were identified in Australia and New Zealand, implying that domestically-sourced nanomaterials may not presently be used in food packaging applications in Australia or New Zealand; however, the report suggests that food and packaging materials incorporating imported nanomaterials may be used in Australia and New Zealand.

While neither report identified any health concerns from any of the nanotechnologies described, FSANZ did note that nanotechnology is a rapidly evolving field, and that the conclusions set forth in the reports may need to be revisited as the sophistication and application of nanotechnologies to food and food packaging continues to advance.

© 2016 Keller and Heckman LLP

Lehman Brothers Wins Stock Drop Lawsuit

Lehman brothers stock dropA New York federal appeals court once again rejected a breach of fiduciary duty claim against the now bankrupt Lehman Brothers brought by its employee stock ownership plan (ESOP) participants. In In Re: Lehman Bros. Sec. and ERISA Litig., No. 15-2229 (2d Cir. 2016), the US Court of Appeals for the Second Circuit on March 18 ruled that participants “failed to allege sufficiently” that plan fiduciaries violated their duties under the Employee Retirement Income Security Act (ERISA). The appeals court upheld an earlier July 15, 2015 decision by a US district court in New York to dismiss the complaint.

Soon after Lehman Brothers declared bankruptcy in September 2008, the ESOP participants sued, claiming that ESOP fiduciaries breached their fiduciary duties under ERISA “by continuing to permit investment in Lehman stock in the face of circumstances arguably foreshadowing its eventual demise,” the Second Circuit said. The New York district court dismissed the complaint for the first time in 2011, and the Second Circuit court upheld the dismissal in 2013. Both courts cited a long-held legal principle applicable to ESOPs—the presumption of prudence—to support the defendants’ request for dismissal.

However, in June 2014, the US Supreme Court nullified this long-standing presumption of prudence principle in a unanimous decision inFifth Third Bancorp, et. al. v Dudenhoeffer, et. al. According to the Supreme Court in the Dudenhoeffer decision, fiduciaries that evaluate an investment in employer stock may rely on its market price unless there are “special circumstances.” Specifically, the court held that “where a stock is publicly traded, allegations that a fiduciary should have recognized, from publicly available information alone, that the market was over or undervaluing the stock are implausible as a general rule, at least in the absence of special circumstances.” This means that the stock market price is the best estimate of employee stock value. But the Supreme Court did not address what it means by “special circumstances,” so, as a result, lower courts will need to determine when a plan fiduciary should have considered the market price as questionable.

Following Dudenhoeffer, the Lehman employees tried to establish special circumstances by pointing to orders issued by the US Securities and Exchange Commission (SEC) in summer 2008 that prohibited the short-selling of Lehman securities. They argued both that the orders described market conditions that constituted special circumstances and that the orders themselves qualified as special circumstances. The Second Circuit rejected this argument, explaining that the SEC orders “speak only conditionally” about the market effects of short sales.

This Second Circuit ruling marks the first time that a circuit court has applied the Supreme Court’s recent decision reaffirming the high hurdle facing employees who challenge company stock losses under ERISA (SeeAmgen Inc. v. Harris 136 S. Ct. 758 (US 2016)). This special circumstances requirement has derailed several lawsuits in the last two years, with courts dismissing claims involving the company stock plans of various major companies.

Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

False Claims Act: DOJ Appealing AseraCare Loss

False Claims ActOn May 27, 2016, the US Department of Justice said it will appeal to the Eleventh Circuit its loss in the False Claims Act (FCA) case against hospice chain AseraCare Inc. The government’s decision to appeal comes as no surprise, and it means that the substantial attention this case has received will continue.

As a reminder, this case, U.S. ex rel. Paradies v. AseraCare, Inc., focused on whether AseraCare fraudulently billed Medicare for hospice services for patients who were not terminally ill. AseraCare argued (and the district court ultimately agreed) that physicians could disagree about a patient’s eligibility for end-of-life care and such differences in clinical judgment are not enough to establish FCA falsity.

The government appealed three orders issued by the US District Court for the Northern District of Alabama. We previously posted about each of these three orders.

The first order on appeal is the district court’s May 20, 2015 decision bifurcating the trial, with the element of falsity to be tried first and the element of scienter (and the other FCA elements) to be tried second. The government had unsuccessfully sought reconsideration of this decision.  This is the first instance in which a court ordered an FCA suit to be tried in two parts.

The second order on appeal is the district court’s October 26, 2015 decision ordering a new trial, explaining that the jury instructions contained the wrong legal standard on falsity. This order came after two months of trial on the element of falsity and after a jury verdict largely in favor of the government.

The third order on appeal is the district court’s March 31, 2016 decision, after sua sponte reopening summary judgment, granting summary judgment in favor of AseraCare. In dismissing the case, the court explained that mere differences in clinical judgment are not enough to establish FCA falsity, and the government had not produced evidence other than conflicting medical expert opinions.

The government must file its opening brief 40 days after the record is filed with the Eleventh Circuit. We will be watching this case throughout the appellate process.

© 2016 McDermott Will & Emery

Short Samplings of Songs May Not Be Considered Copyright Infringement After All

song samplingThe Ninth Circuit Court of Appeals just decided that song sampling without permission does not necessarily infringe the copyright. Many artists have built careers by sampling an old song to create a new work. Until now, courts have told the artist to “get a license or do not sample.”

The Sixth Circuit Court of Appeals decided in 2005 that there is no de minimus exception to sampling. The de minimus exception, which applies to the copyright law generally, states that if an artist borrowed an insignificant portion of an existing work, the artist did not infringe. The Sixth Circuit held that this exception did not apply to sampling. This meant that if an artist sampled a portion of a song that lasted a fraction of a second, the artist nonetheless infringed.

Now, the Ninth Circuit in VMG Salsoul, LLC v Madonna Ciccone (“Salsoul”)took “the unusual step of creating a circuit split” and decided that thede minimus exception does apply to sampling. In Salsoul, Madonna sampled a 0.23-second “horn blast” from a disco song and incorporated the blast into her 1990 song “Vogue.” The Ninth Circuit explained that Madonna did not infringe because “a reasonable juror could not conclude that the average audience would recognize the appropriation of the horn sound.” Therefore, her sampling was de minimus and did not infringe.

This Ninth Circuit decision will impact the music world and likely lead to a U.S. Supreme Court decision that clarifies the legal limits of unauthorized sampling.

ARTICLE BY Todd A. Davidovits of Polsinelli PC
© Polsinelli PC, Polsinelli LLP in California

Washington, D.C. Prepares to Increase Minimum Wage to $15

dc minimum wage increase

— and Tipped Minimum Wage to $5.00 — by July 1, 2020

Washington, D.C. is poised to join California and New York by raising its minimum wage to $15.00 per hour.

On June 7, 2016, the D.C. Council, with support of Mayor Muriel Bowser, unanimously passed on first reading the Fair Shot Minimum Wage Amendment Act of 2016 . The bill will continue to raise the District of Columbia minimum wage – currently $10.50, but previously set to increase to $11.50 on July 1, 2016 – in additional annual increments until it reaches $15.00 by July 1, 2020. Beginning on July 1, 2021, the minimum wage will increase further based on the increase in the Consumer Price Index for All Urban Consumers for the Washington Metropolitan Statistical Area.

Notably, the bill will also increase the tipped minimum wage from the existing $2.77 per hour, where it has been since 2005, in annual increments of 56 cents (55 cents in 2020) to $5.00 on July 1, 2020, again with annual indexing in successive years. This increase in the tipped minimum wage represents a compromise between advocates who sought to eliminate any lower minimum wage for tipped employees, or to at least set a higher rate of half the minimum wage as Mayor Bowser originally proposed, and significant portions of the restaurant industry that resisted any increase at all.

The law also contains special provisions for government contractors that currently are covered by D.C.’s Living Wage Act, which generally require them to pay the minimum wage if it becomes higher that the living wage (currently $13.85, but also subject to annual adjustment). In addition, for the first time, District employees are covered by the D.C. minimum wage law.

The bill still faces a second vote, likely either on June 21 or 28, 2016, at which time it is possible there may be some amendments. After Mayor Bowser signs the bill, it is subject to a Congressional review period, but is expected to take full effect well in advance of the 2017 increases.

©2016 Epstein Becker & Green, P.C. All rights reserved.

Employee Error Accounts for Most Security Breaches

security breachesA recent study by a well-known information security company captures one of the most common information security fallacies: that information security is a technology problem. Most businesses view mitigating information security risks as falling squarely in the purview of their information technology department. However, this study reports that human error actually accounted for nearly two-thirds of security compromises, far exceeding causes like insecure websites and hacking.1 While technological measures (e.g., anti-virus software, access controls, firewalls, and intrusion detection systems) are clearly important, their effectiveness pales in comparison to the benefits gained by effective security awareness training.

Just as troubling, another recent study found a 789% increase in e-mail phishing attacks containing malicious code, including ransomware, in the first quarter of 2016 over the final quarter of 2015.2 Phishing, which is an attempt to obtain confidential information or access by fraudulently posing as a legitimate company seeking information via e-mail, instant message or other electronic communication, specifically preys on employees who have not been trained to recognize the scam. A successful phishing expedition can result in the loss of confidential and financial information, system disruption and consumer litigation exposure. Every industry is impacted and at risk.

The results of these studies should serve as a clarion call to businesses. While we have long known that the human component is the key to improved security,3 it is also one of the most neglected areas in many business’ information security programs. Security awareness training for employees is one of the most important and effective means of reducing the potential for costly errors in handling sensitive information and protecting company information systems. Regardless of how much money and effort a business spends on its technological security measures, it cannot achieve an adequate level of security without addressing the human component.

Awareness training can ensure employees have a solid understanding of employer security practices and policies, as well as the tell-tale signs of an attempt to gain improper access to computer systems and confidential information. In contrast, uninformed employees are susceptible to mistakes, malware, phishing attacks, and other forms of social engineering. They can do substantial harm to a company’s systems and place its data at risk. The recent spate of ransomware attacks highlight just how critical the human element really is, as almost every one of those attacks resulted from human error.

First and foremost, it is critical that training programs have the participation of and include input from all relevant stakeholders at the company, including Human Resources, IT, Information Security, Legal, and Compliance.

Key aspects of any successful training program should also include the following:

  • Train on an ongoing basis. Avoid limiting training to when an employee is first hired or assigned to a new role in the organization

  • Train creatively, not just in a non-interactive classroom setting

  • Look for means to introduce interactivity into the training process

  • Have a means of measuring progress

To be truly effective, a security awareness program must provide “multiple methods of communicating awareness and educating employees as well (for example, posters, letters, memos, web based training, meetings, and promotions).”[1]

Training can be conducted through a number of means:

  • Classroom sessions

  • Webinars

  • Security posters and other materials in common areas

  • Brown bag lunches

  • Helpful hints distributed to employees via e-mail or corporate intranet posts

  • Simulated phishing attacks (e.g., systems that will periodically send phishinge-mail to employees attempting to lure them into clicking on an attachment or a hyperlink and then alerting the employee that they have engaged in an insecure activity)

Additionally, having comprehensive and understandable employee policies is critical to a company’s information security safeguards. Readable and effective policies can be used in conjunction with effective employee training to reduce data security incidents caused by human error.

Finally, one of the most effective ways to increase employee security awareness is to help employees understand that good security practices can also benefit them personally. Being security-aware not only serves to protect their employer’s systems, but also helps in better securing the employee’s own personal data and computers. For example, by being more vigilant in identifying potential phishing attacks at work, the employee will become more vigilant in using home e-mail accounts and thereby protect their own data, photographs, financial accounts, etc.


1https://www.egress.com/news/egress-ico-foi-2016
2http://phishme.com/phishme-q1-2016-malware-review/
3 See, e.g., Common Sense Guide to Mitigating Insider Threats, 4th Edition.http://www.sei.cmu.edu/reports/12tr012.pdf.

FAA Rules for Drones: The Waiting is the Hardest Part

drone operations

The May edition of “Unmanned Systems” magazine printed interviews with Earl Lawrence and Marke Gibson, two administrators at the Federal Aviation Administration who are focused on drone integration.  While the FAA currently authorizes commercial drone operations on a case-by-case basis, it is anticipated that a new rule will be finalized this year and will be comprehensive enough to fulfill the public desire for commercial drone operations.

Lawrence predicted that performance-based standards, rather than weight and speed classifications, may be used in the new rule because they provide a more effective response to safety risks posed by drones. Lawrence also believed the new drone rule will require a certification for commercial drone operators.

Gibson noted that testing has revealed drone pilots are able to see other aircraft approaching at a distance of two and one half miles in daylight hours, more than the one mile estimated for operations within visual line-of-sight.  Gibson found this, and other testing data, valuable as the FAA continues its rulemaking for drones.

At least until the new rule is passed, however, commercial operators must still follow the Section 333 exemption process.  Those that wish to operate drones for business purposes must convince the FAA to issue an exemption.  The FAA requires information like the intended use of the drone; its design and operational characteristics; and how its operation will be done safely.

Neither Lawrence nor Gibson told the magazine when the new rule would actually be rolled out by the FAA.  Last Friday at a drone seminar though, Gibson hinted that the new rule may be announced this summer.  Hopefully, the waiting, not the rule itself, is the hardest part.

ARTICLE BY Jeffrey K. Phillips
© Steptoe & Johnson PLLC. All Rights Reserved.

Key Implications of Fourth Circuit’s Denial of En Banc Review of Pro-Transgender Ruling

On May 31, 2016, the Fourth Circuit Court of Appeals denied en banc review of an April decision permitting transgender students to use sex-segregated facilities that are consistent with their gender identity.  The Fourth Circuit encompasses North Carolina; thus, the case G.G. v. Gloucester County Public School Board (“Gloucester County”), although it arose in Virginia, creates a conflict between federal law and North Carolina’s House Bill 2 (“HB2”), which requires transgender individuals to use public bathrooms that match the gender listed on their birth certificates.  Although Gloucester County applies on its face to students and public schools, the decision impacts retailers who provide bathroom facilities to employees and customers and who must navigate conflicting laws regarding transgender protections.  Of additional importance, plaintiffs in sex discrimination lawsuits will likely use the decision as support for the view that a person’s “sex” includes “gender identity.”North Carolina Transgender students

In Gloucester County, a sixteen-year-old transgender high school student who was born a biological female filed suit to use the boys’ restroom at school.  G.G. and his mother contended that the school’s policy of providing separate restrooms and locker rooms based upon a student’s biological sex constituted sex discrimination under Title IX—the federal law that prohibits sex-based discrimination in federally funded educational programs and activities.  On April 19, G.G. prevailed in a two-to-one decision of a three member panel of the Fourth Circuit, which deferred to the U.S. Department of Education’s interpretation that the reference to “sex” in Title IX includes “gender identity.”

Following the panel’s ruling, the school board asked the Fourth Circuit to rehear the case with the full panel of 15 active judges.  On May 31, the en banc panel denied the school board’s request.  Circuit Judge Paul V. Niemeyer, widely considered the most conservative member of the Fourth Circuit, filed the lone dissent, stating the issue “deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application.”

Regardless whether the case proceeds to the Supreme Court, the decision signifies the first time a federal appeals court has found that federal law protects the rights of transgender persons to use sex-segregated facilities that are consistent with their gender identity.  Although decided under Title IX with regard to student rights, the decision may have ramifications in the area of employment law, inasmuch as Title VII, like Title IX, prohibits discrimination based on “sex.”  Retailers and other employers should be alert to the issue and may expect that future litigants will seek to expand the Gloucester County ruling to Title VII and other sex discrimination claims.

Given the political and legal climate surrounding HB2 and related laws that affect the rights of transgender persons, we recommend that retailers proactively accommodate the needs of transgender workers rather than reactively respond to potential claims of discrimination.  Retailers, particularly those operating in states with anti-discrimination laws that cover sexual orientation and gender identity, should implement a policy designed to foster workplace inclusion.  In particular, retailers are encouraged to provide transgender employees access to bathrooms that correspond to their gender identity and, where possible, provide employees with additional options, including single-occupancy gender-neutral (unisex) facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.  Furthermore, retailers in the clothing industry with dressing/fitting rooms should accommodate their employees and patrons alike by permitting them to use the dressing/fitting room that corresponds to their gender identity.  These recommendations apply equally to those retailers in North Carolina because, although HB2 remains in effect in that state, the law applies only to places of public accommodation, and, in any event, the Fourth Circuit’s recent decision signals that the controversial law may not withstand judicial scrutiny.  In general, retailers should beware that engaging in discriminatory practices may have negative business as well as legal ramifications.

©2016 Epstein Becker & Green, P.C. All rights reserved.