Category: Labor & Employment

Department of State Releases July 2014 Visa Bulletin

Morgan Lewis logo

Bulletin shows nearly four years of advancement in the EB-2 category for applicants chargeable to India and minor advancement for applicants chargeable to China as well as significant advancement in the EB-3 category for applicants chargeable to the Philippines, minor advancement for applicants chargeable to India, and no change for applicants chargeable to China, Mexico, or the Rest of the World.

The U.S. Department of State (DOS) has released its July 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the July 2014 Visa Bulletin Say?

In July, the cutoff date for applicants in the EB-2 India category will advance by nearly four years, while the cutoff date for applicants in the EB-2 China category will advance by only 40 days. Meanwhile, the cutoff date in the EB-3 India category will advance by 17 days, while the cutoff date in the EB-3 China category will remain unchanged. The cutoff date in the F2A category for applicants from all countries will also remain unchanged.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will advance by nearly four years to September 1, 2008. The cutoff date for applicants in the EB-2 category chargeable to China will advance by 40 days to July 1, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by 17 days to November 1, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will remain unchanged at October 1, 2006. The cutoff date for applicants in the EB-3 category chargeable to the Philippines will advance by one year to January 1, 2009. The cutoff date for applicants chargeable to Mexico and all other countries will remain unchanged at April 1, 2011.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: October 1, 2006 (no movement)
India: November 1, 2003 (forward movement of 17 days)
Mexico: April 1, 2011 (no movement)
Philippines: January 1, 2009 (forward movement of 366 days)
Rest of the World: April 1, 2011 (no movement)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The July Visa Bulletin indicates no change, meaning that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through July 2014.

China

The June Visa Bulletin indicated a cutoff date of May 22, 2009 for EB-2 applicants chargeable to China. The July Visa Bulletin indicates a cutoff date of July 1, 2009, reflecting forward movement of 40 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to July 1, 2009 may file AOS applications or have applications approved in July 2014.

India

In December 2013, the cutoff date for EB-2 applicants chargeable to India retrogressed significantly to November 15, 2004 because of unprecedented demand in this category. This cutoff date remained constant through June. The July Visa Bulletin indicates a cutoff date of September 1, 2008, reflecting forward movement of nearly four years (1,386 days). This means that applicants in the EB-2 category chargeable to India with a priority date prior to September 1, 2008 may file AOS applications or have applications approved in July 2014.

Developments Affecting the EB-3 Employment-Based Category

China

In late 2013 and early 2014, the cutoff date for EB-3 applicants chargeable to China advanced significantly to generate demand in this category. In June, to regulate demand, this cutoff date retrogressed by six years to October 1, 2006. The July Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to China with a priority date prior to October 1, 2006 may continue to file AOS applications or have applications approved in July 2014.

India

The June Visa Bulletin indicated a cutoff date of October 15, 2003 for EB-3 applicants chargeable to India. The July Visa Bulletin indicates a cutoff date of November 1, 2003, reflecting forward movement of 17 days. This means that only EB-3 applicants chargeable to India with a priority date prior to November 1, 2003 may file AOS applications or have applications approved in July 2014.

Rest of the World

From September 2013 through April 2014, the cutoff date for EB-3 applicants in the worldwide category advanced by 3.75 years. In June, to regulate the high demand, the cutoff date in this category retrogressed by 549 days to April 1, 2011. The July Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to April 1, 2011 may file AOS applications or have applications approved in July 2014.

Developments Affecting the F2A Family-Sponsored Category

In March, as a result of heavy demand in the F2A category from applicants chargeable to Mexico, the cutoff date in this category retrogressed significantly to April 15, 2012. In June, this cutoff date retrogressed again to March 15, 2011. The July Visa Bulletin indicates no change to this cutoff date. This means that only those applicants from Mexico with a priority date prior to March 15, 2011 will be able to file AOS applications or have applications approved in July 2014.

During fiscal year 2013, in an effort to generate demand in the F2A category from applicants from all countries other than Mexico, the cutoff date in this category advanced significantly. This advance resulted in a dramatic increase in demand, followed in June by a further retrogression of the cutoff date to May 1, 2012. The July Visa Bulletin indicates no change to this cutoff date. This means that only those F2A applicants from countries other than Mexico with a priority date prior to May 1, 2012will be able to file AOS applications or have applications approved in July 2014. Further retrogression of the worldwide F2A category should not be ruled out.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the July 2014 VisaBulletin in its entirety, please visit the DOS website here.

Article by:
Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
Of:
Morgan, Lewis & Bockius LLP

Wisconsin Federal Court Recognizes Same-Sex Marriage: How Does This Affect the Administration of an Employer’s Employee Benefits?

Michael Best Logo

On Friday, June 6, 2014, Judge Crabb of the U.S. District Court for the Western District of Wisconsin issued a decision finding that Wisconsin’s constitutional amendment recognizing marriages only between men and women violates the Equal Protection Clause of the U.S. Constitution.

Unlike several other federal judges who have considered the issue, Judge Crabb did not make her ruling immediately effective. Instead the Court asked the plaintiffs’ lawyers in the case to help her fashion an injunction to implement her ruling. The plaintiffs have until June 16, 2014, to submit this proposal. The State asked for clarification on the June 6, 2014 ruling and requested that the court stay its decision until it made a final decision on the scope of the injunctive relief. On June 9, 2014, the court denied the State’s motion. In response, the State appealed Judge Crabb’s decision to the U.S. Court of Appeals for the Seventh Circuit in Chicago and requested an immediate stay of Judge Crabb’s order. The Seventh Circuit has solicited arguments from the parties to determine whether it has jurisdiction of the matter.

In response to Judge Crabb’s decision, many of the State’s counties have begun issuing marriage licenses to same-sex couples in the state. Others have declined to do so and have, instead, sought guidance from counsel or the Attorney General.

Addressing the Change

Judge Crabb’s decision, and issuance of Wisconsin same-sex marriage licenses, has injected some uncertainty into benefit plan administration in Wisconsin. Based upon the state of the prior law, it is likely that a Wisconsin employer will have more employees with domestic partners than employees with same-sex spouses through legal marriages formed elsewhere. Nevertheless, same-sex benefits are certainly an evolving issue for employers.

Family and Medical Leave

Registered and unregistered domestic partners were already covered under the Wisconsin Family and Medical Leave Act. Because an unregistered domestic partnership does not require a formal filing with a county clerk, it appears that the state law in this context is relatively unaffected.

On the other hand, the federal FMLA is substantially affected. The definition of spouse under the federal regulations requires that the marriage must be recognized by the state of residence. Most FMLA policies do not distinguish between same-sex and opposite-sex partners. Consequently, if Judge Crabb’s decision stands, requests for FMLA leave relating to same-sex spouses must be recognized under both federal and Wisconsin law if the leave is otherwise appropriate under the law.

Until the ramifications of the injunctive language are known, employers should pay particular attention to the language of their FMLA policies before making any determination about FMLA requests. Depending on how the courts ultimately rule, an employer’s FMLA policy may or may not require amendment. Regardless, if an employee asks about leave for a same-sex spouse, legal counsel should be consulted.

Benefits

The status of the law will remain uncertain until Judge Crabb makes a decision regarding whether to issue an injunction and the form such an order would take. If an injunction is issued and then stands following the anticipated appeal, employers who employ employees who have a same-sex spouse would no longer impute Wisconsin income tax for health coverage, and would otherwise recognize such spouse for all legal purposes. Because of the uncertainty in the current climate, employers should consider whether to continue imputing income for benefits provided to same-sex spouses until such time as transitional guidance is issued by the Wisconsin Department of Revenue on this issue.

Nothing has changed as it relates to unmarried domestic partners—these individuals are still subject to imputed income where the individual obtains coverage on behalf of his or her domestic partner.

Because employee benefits rules are largely governed by federal law, many same-sex marriage changes in employee benefits have been observed already since the U.S. Supreme Court’s Windsor decision of last year. If the Judge Crabb ruling stands, the most significant change for Wisconsin employers will likely pertain to Wisconsin tax treatment of family health coverage.

What should employers do in response?

  • Account for those same-sex couples who may have been married in a state that permitted same-sex marriage or who are newly married in Wisconsin following Judge Crabb’s decision;
  • Examine if modification of FMLA policy/forms is warranted based upon the changes; and
  • Examine if modification to benefit plan materials may be necessary.
Article By:

Charles P. Stevens
Kirk A. Pelikan
Of:
Michael Best & Friedrich LLP

The Affordable Care Act—Countdown to Compliance for Employers, Week 29: Wellness Programs, Smoking Cessation and e-Cigarettes

MintzLogo2010_Black

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) generally prohibits discrimination in eligibility, benefits, or premiums based on a health factor, except in the case of certain wellness programs. Final regulations issued in 2006 established rules implementing these nondiscrimination and wellness provisions. TheAffordable Care Act largely incorporates the provisions of the 2006 final regulations (with a few clarifications), and it changes the maximum reward that can be provided under a “health-contingent” wellness program from 20 percent to 30 percent. But in the case of smoking cessation programs, the maximum reward is increased to 50 percent. Comprehensive final regulations issued in June 2013 fleshed out the particulars of the new wellness program regime.

Health-contingent wellness programs require an individual to satisfy a standard related to a health factor to obtain a reward. The final rules divide health-contingent wellness programs into the following two categories: activity-only programs, and outcome-based programs. As applied to smoking cessation, an “activity-only program” might require an individual to attend a class to obtain the reward. In contrast, an outcome-based program would require an individual to quit smoking, or least take steps to do so under complex rules governing alternative standards.

Nowhere do the final regulations address the role of electronic cigarettes (or “e-cigarettes”). Simply put, the issue is whether an e-cigarette user is a smoker or a nonsmoker? (According to Wikipedia, an electronic cigarette (e-cig or e-cigarette), “is a battery-powered vaporizer which simulates tobacco smoking by producing a vapor that resembles smoke. It generally uses a heating element known as an atomizer that vaporizes a liquid solution.”) But questions relating to e-cigarettes are starting to surface in the context of wellness program administration. Specifically:

  1. Is an individual who uses e-cigarettes a “smoker” for purposes of qualifying, or not qualifying, for a wellness program reward, and
  2. May a wellness program offer e-cigarettes as an alternative standard, i.e., one that if satisfied would qualify an individual as a non-smoker?

Is an individual who uses e-cigarettes a “smoker” for purposes of qualifying, or not qualifying, for a wellness program reward?

While the final rules don’t mention or otherwise refer to e-cigarettes, they do provide ample clues to support the proposition that smoking cessation involves tobacco use. Here is the opening paragraph of the preamble:

SUMMARY: This document contains final regulations, consistent with the Affordable Care Act, regarding nondiscriminatory wellness programs in group health coverage. Specifically, these final regulations increase the maximum permissible reward under a health-contingent wellness program offered in connection with a group health plan (and any related health insurance coverage) from 20 percent to 30 percent of the cost of coverage. The final regulations further increase the maximum permissible reward to 50 percent for wellness programs designed to prevent or reduce tobacco use. (Emphasis added.)

There is also a discussion in the preamble about alternative standards (79 Fed Reg. p. 33,164 (middle column)), which reads in relevant part:

The Departments continue to maintain that, with respect to tobacco cessation, ‘‘overcoming an addiction sometimes requires a cycle of failure and renewed effort,’’ as stated in the preamble to the proposed regulations. For plans with an initial outcome-based standard that an individual not use tobacco, a reasonable alternative standard in Year 1 may be to try an educational seminar. (Footnotes omitted.)

In addition, the final regulations’ Economic Impact and Paperwork Burden section is replete with references to tobacco use, as are the examples (see Treas. Reg. § 54.9802-1(f)(4)(vi), examples 6 and 7).

On the other hand, the definition of what constitutes a participatory wellness program refers simply to “smoking cessation” (Treas. Reg. § 54.9802-1(f)(1)(ii)(D)), and the definition of an outcome-based wellness program (Treas. Reg. § 54.9802-1(f)(1)(v)) simply refers to “not smoking.” In neither case is there any reference to tobacco.

The Affordable Care Act’s rules governing wellness programs are included in the Act’s insurance market reforms, which take the form of amendments to the Public Health Service Act that are also incorporated by reference in the Internal Revenue Code and the Employee Retirement Income Security Act (ERISA). By virtue of being included in ERISA, participants have a private right of action to enforce these rules. So an employer that wanted to treat the use of e-cigarettes as smoking in order to deny access to a wellness reward would likely confront arguments similar to those set out above in the event of a challenge.

May a wellness program offer e-cigarettes as an alternative standard, i.e., one that if satisfied would qualify an individual as a non-smoker?

This is perhaps a more difficult question. May an employer designate e-cigarette use as an alternative standard? Anecdotal evidence suggests that employers are not doing so, at least not yet. But could they do so? And would it make a difference whether the e-cigarette in question used a nicotine-based solution as opposed to some other chemical? (According to Wikipedia, “solutions usually contain a mixture of propylene glycol, vegetable glycerin, nicotine, and flavorings, while others release a flavored vapor without nicotine.”) The answer in each case is, it’s too soon to tell.

The benefits and risks of electronic cigarette use are uncertain, with evidence going both ways. Better evidence would certainly give the regulators the basis for further rulemaking in the area. In the meantime, the final regulations’ multiple references to tobacco, and by implication, nicotine, seem to furnish as good a starting point as any. This approach would require a wellness plan sponsor to distinguish between nicotine-based and non-nicotine-based solutions, which may prove administratively burdensome.

The larger question, which may take some time to settle, is whether e-cigarettes advance or retard the cause of wellness. Absent reliable clinical evidence, regulators and wellness plan sponsors have little to guide their efforts or inform their decisions as to how to integrate e-cigarettes into responsible wellness plan designs. Complicating matters, the market for e-cigarettes is potentially large, which means that reliable (read: unbiased) clinical evidence may be hard to come by. For now, all plan sponsors can do is to answer the questions set out above in good faith and in accordance with their best understanding of the final regulations.

Article By:

Alden J. Bianchi
Of:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

 

Settlement Between U.S. Department of Labor and Oregon Blueberry Growers Vacated

Varnum LLP

In 2012, the Department of Labor accused Oregon blueberry growers of employing “ghost workers” resulting in minimum wage violations. The DOL then issued what is known as a “hot goods order” to block shipment of their product to market until the violations were remedied.  This, of course, created an untenable situation for the blueberry producers as their products were highly perishable. With no real alternative, the blueberry growers signed consent agreements with the DOL, in which they agreed to substantial fines and waived their rights to contest the allegations.

The blueberry growers later challenged the consent judgment and in January a federal magistrate judge agreed with the growers finding that “the tactic of putting millions of dollars of perishable goods in lock up was unlawfully coercive.” That decision was upheld just last week by the United States district judge. Invaliding consent judgments, particularly those with the federal government, is extremely difficult and rarely happens. But in this case, the combination of over-the-top, coercive of tactics by the DOL, as well as the court’s view that there was little or no evidence of underlying labor violations to begin with, paved the way for the growers in this case.

Article By:

Aaron M. Phelps
Of:
Varnum LLP

Rights of Job Applicants in Germany

McDermottLogo_2c_rgb

The German Federal Labor Court made a very clear ruling regarding job applicants in Germany who are not offered the position for which such applicants applied.  In the Federal Labor Court’s view, a rejected applicant has no right to know whether another applicant was offered or accepted the position.  (Federal Labor Court, verdict dated April 25, 2013, case number 8 AZR 287/08)

This case concerned a plaintiff who was born in the former Soviet Union in 1961.  She applied for a position that was advertised by a German company, the defendant in this case.  Even though the plaintiff fulfilled all required qualifications, she was rejected and did not receive a job offer.  The plaintiff presumed that this decision was based on discrimination for her gender, age and origin.  The Federal Labor Court submitted the case to the European Court of Justice to determine whether the job applicant had a right to information regarding why she was not selected, or if another applicant was selected for the position.  The European Court of Justice rendered its verdict on April 19, 2012 (case number C415/10), and stated that rejected job applicants had no right to this information under European law.

The German Federal Labor Court dismissed the case because it could not detect any evidence of discrimination.  The mere refusal of the defendant to disclose any information related to the application process and/or the hiring could not establish the presumption of an inadmissible discrimination, according to Section 7 of the German General Equal Treatment Act.

However, this ruling has to be viewed with great caution.  The German decision is not in line with the aforementioned ruling in the same matter of the European Court of Justice.  The European judges, in contrast to the German Court, stressed that the complete refusal to give out any information regarding the hiring could actually be evaluated as a presumption of possible discrimination.  This remarkable difference in the two verdicts was not explained by the German judges and as long as their reasoning remains unclear, German employers should provide a short explanation to rejected applicants when they ask the reason why they have been rejected for an open position (e.g., the other candidate better satisfies the qualification profile, made a better impression at the job interview, seems to be a more motivated and energetic person, etc.).

Article By:

Dr. Sandra Urban-Crell
Gudrun Germakowski
Of:
McDermott Will & Emery

 

Working Through Lunch: An Update on the Legal Risks

Barnes Burgandy Logo

Regular readers of this blog know that we’ve previously alerted you to the risks of using timekeeping software that automatically deducts the lunch hour from employees’ paychecks.  As we’ve explained before, such software can expose employers to liability under the Fair Labor Standards Act because, for one reason or another, employees sometimes work through lunch. And, even if an employer has a system in place for employees to request pay for lunchtime work, that is no “get out of jail free card,” because employees who bring FLSA lawsuits commonly argue that they did not use – or were discouraged from using – the system.

A lawsuit that was filed earlier this month in Texas federal court gives us another reason to sound the alert.  In Corcione v. Houston Methodist, the plaintiff alleges that she – and a class of some 5,000 nurses, nurses assistants, patient care assistants and other employees at seven different medical facilities – were required to keep their cellphones on hand during their meal breaks in case they were needed to respond to emergencies. And, even though the employers had systems in place for requesting pay for lunchtime work, the plaintiff claims that managers discouraged employees from making such requests. The plaintiff seeks to recover the unpaid wages (for the time claimed to have been worked, including overtime pay), liquidated damages, and legal fees.  In other words, the plaintiff wants tens of millions of dollars.

A policy requiring nurses (and similar employees) to be available so that they can respond to emergencies probably seems reasonable to you, and we feel the same way. Work “emergencies” aren’t limited to the medical field, of course, and many other types of employers have similar policies – written or unwritten. If you’re one of them, just remember that the ramifications of such policies can land you on the wrong side of the FLSA if you’re not careful. We’ve said it before, and we’ll say it again:  Work time must be compensated.  Even if that “work time” comes during what – on a normal day – would have been “lunch time.”

Article By:

James F. Ehrenberg
Of:
Barnes & Thornburg LLP

School is Almost Out and Summer Interns are (Still) In

MintzLogo2010_Black

With the Memorial Day weekend approaching, many people are looking forward to hitting the beach, firing up the grill and polishing off their golf clubs, which are, for many Northeasterners, covered in cobwebs after this long winter. For employers, summer often means the arrival of (potentially unpaid) interns.

We have written before about the recent wave of high-profile wage and hour class actions lawsuits from interns. Last week, just in time for the arrival of the newest batch of summer interns, a New York federal judge conditionally certified an FLSA class of approximately 3,000 interns of Warner Music Group who were allegedly misclassified as exempt from minimum wage and overtime requirements. The recent litigation has also prompted new legislation to protect interns, including a New York City law aimed at ensuring that unpaid interns will have the right to sue if they are harassed or discriminated against by an employer.

Still, many companies cannot resist the temptation of free or relatively cheap temporary labor, and, in a still-rebounding economy, job-seekers continue to look to internships to build their resumes and gain experience. So, what can a company do in order to ensure a smooth, issue-free summer with its interns?

  • The first and most obvious answer is to treat interns as temporary employees. Have interns track time like any other non-exempt employees. Pay them at least minimum wage for all hours worked and overtime for any hours worked over 40 per week (assuming they do not meet some exemption from the minimum wage and overtime laws). Comply with all state laws regarding working and meal breaks. This approach will alleviate the vast majority of legal issues with respect to employing summer interns.
  • Require interns to attend the same non-discrimination, non-harassment trainings as other employees. Draft job descriptions for interns and set appropriate expectations for the program. Have clear policies, including a policy regarding expected conduct at work-related social events, which interns are required to review and acknowledge in writing.
  • If you decide against paying interns, you should carefully review intern program to ensure that it is legally compliant with appropriate wage and hour laws. In order for an intern to be legally unpaid under federal law:
  1. The intern experience must be similar to training given in an educational environment;
  2. The internship must be for the benefit of the intern (meaning they gain tangible training, experience, etc.);
  3. Interns may not displace or supplant regular employees, or perform duties traditionally rendered by regular employees;
  4. The company must not get any immediate advantage from the intern’s activities;
  5. The intern must not be entitled to a job at the end of the internship; and
  6. The company and the intern should have a written agreement (or an understanding at the absolute minimum) that the intern is not entitled to receive remuneration for his/her work.

According to the Department of Labor, if any one of these criteria is not met the company must pay the intern for all time worked. Some states have their own laws regarding interns, so make sure you are in compliance with those laws as well.

If your summer intern program begins soon after Memorial Day, now is the time to review you policies. A little bit of preparation can ensure a sunny summer for all.

Article By:

Jillian M. Collins
Of:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

June 2014 Visa Bulletin Released, Shows Significant Retrogression for EB-3 Worldwide, China and Mexico

GT Law

Below is a summary of the U.S. State Department June 2014 Visa Bulletin:

  • EB-1 remains current across all filing categories;
  • EB-2 for Worldwide, Mexico and Philippines all remain current. The EB-2 India cut-off remains at November 15, 2004 (this has remained stagnant since the December 2013 Visa Bulletin). EB-2 China moves forward to May 22, 2009; and
  • EB-3 Worldwide, China and Mexico retrogress significantly (see below). EB-3 Worldwide and EB-3 Mexico move back to April 1, 2011 and EB-3 China moves back by 6 years to October 1, 2006. EB-3 Philippines moves forward by 2 months to January 1, 2008, while EB-3 India moves forward by only 2 weeks to October 15, 2003.

Dramatic Retrogression for EB-3 China

The Department of State stated in the Visa Bulletin that the “unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China and Mexico cut-off dates for the month of June.”

Beginning with the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in the People’s Republic of China (China) had a more recent cut-off date than the second preference employment-based category (EB-2). Accordingly, many foreign nationals chose to “downgrade” their case from EB-2 to EB-3 to shorten their wait time. However, this has had a negative impact on the EB-3 category and has resulted in the severe retrogression (six years) as reported above. Applicants who are still preparing their I-485 Adjustment Applications for this filing category should file before the end of the month, before the retrogression occurs on June 1, 2014.

Employment-Based Projections

The American Immigration Lawyers Association (AILA) reported that on Monday April 21, 2014, Mr. Charlie Oppenheim of the Department of State’s Visa Office (VO) spoke to AILA regarding what his office is currently seeing with regard to visa demand and what might be expected in terms of Visa Bulletin movement at this time. While these “projections” can (and often do) change based on usage and/or new developments, below is a summary of the outlook based on AILA’s conversation with Mr. Oppenheim (note: Mr. Oppenheimer discussed both Family-Based and Employment-Based projections; however, we only report the employment-based projections here):

Employment Based 5th Preference China (EB-5)

  • China EB-5 could retrogress later this year, possibly August or September.
  • Retrogression for China EB-5 in the 2015 fiscal year seems almost inevitable, as there are more than 7,000 I-526 applications pending and 80% are from China.

Employment Based 1st Preference (EB-1)

  • It is still a little early in the fiscal year to know how many unused cases will drop down into EB-2. EB-1 usage is heavier this year than last year.

Employment Based 2nd Preference India (EB-2)

  • It is possible in August, but more likely in September, that India EB-2 will open at 1/1/2008 or perhaps later in 2008, in order to utilize the rest of the EB-2 visa numbers that were unused by the Worldwide categories.
  • How many numbers will be utilized depends on EB-1 and EB-2 usage in the Worldwide categories for the rest of the fiscal year (it could be 5,000 or more). This would be less than what was available in fiscal year 2013.
  • No expected changes for Worldwide EB-2.

Employment Based 3rd Preference Worldwide (EB-3)

  • The VO has limited knowledge as to the number of eligible applicants, and USCIS has encouraged DOS to “move the category forward” over the last five months. Demand appears to be increasing, thus, it is unlikely in the short run that the category will move forward. In fact, if current demand continues, something may have to be done as early as May 2014 to slow the demand in this category.
  • The last quarter of the fiscal year for 2014 does not look good, and no movement, or retrogression, is possible.

Employment Based 3rd Preference China (EB-3)

  • Many Chinese nationals who were waiting in the EB-2 category have been filing to “downgrade” from EB-2 to EB-3, and the result of these requests will be reflected in the coming months.
  • High demand is expected to continue in this category and a correction may be reflected as early as the May or June Visa Bulletin, depending on demand.

Why Are Priority Dates Important Anyway?

The issue of a visa number’s “availability” is tied to the U.S. preference system for permanent residence. The U.S. maintains limits on those who can apply to enter as permanent residents; these limits apply by type of immigrant visa sought for permanent resident as well as country of origin. From time to time, backlogs occur in certain categories of employment-based visas, for all persons or for persons from certain countries (backlogs are almost always present for family-based visas) as there are more people applying in those categories from those countries than there are visa numbers available. The setting of the preference is based upon the position’s minimum requirements, not the qualifications of the employee. The net result is that persons who have applications from those countries in the third preference are not able to move on to the final step of the permanent residence process until their “priority date” (or “place in line”) moves to the front of the line for immigrant visas. The line is set by the Department of State and is reviewed monthly. In many cases, this step can take eight years or more depending on the filing category.

The VO’s projections can give hope to some applicants, who in the coming months, may be eligible to move to the final step of the permanent residence process, after waiting for years on hold. But for others, the outlook is not very promising. While the future movement of the immigrant visa availability remains hazy, one thing is clear. Immigration Reform is needed to help eradicate these extreme and unnecessary delays for individuals who continue to contribute to the U.S. economy; and for employers, who are forced to continue filing multiple temporary work extensions in order to retain valuable employees. We will continue to watch the movement in the Visa Bulletin and provide updates.

Article By:

Patricia A. Elmas
Of: 
Greenberg Traurig, LLP

Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization

MintzLogo2010_Black

This advisory summarizes key travel and employment issues if you are an F-1 studentwith Optional Practical Training (OPT) employment eligibility and an H-1B filing on your behalf has been accepted by US Citizenship and Immigration Services (USCIS).USCIS will adjudicate these visa petitions over the next few months and approved petitions will have an October 1, 2014 start date. The good news is that your OPT employment card is automatically extended, by operation of law, with validity to September 30, 2014 under the “cap-gap” OPT extension rule. This means you can continue working legally even after the expiration of your OPT employment card. We recommend that you alert your school’s international student office by providing that office with a copy of the H-1B receipt notice. The international student office will use this receipt information to update your I-20 to show the extension of your OPT.

International travel between now and October 1 is complicated, and whether you can travel and return to work before October 1 depends on your specific situation. As a general rule, it is safest not to travel during the cap-gap period. In all cases, travel as an F-1 student with OPT requires a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US (employer letter and/or recent pay slips).

Please note that any international travel carries risks. If your F-1 visa has expired and you need to apply for a new one, you may face delays for extra security clearances (221(g) administrative processing), or you may not be able to prove you have nonimmigrant intent, which is required for F-1 visa applications. Furthermore, even with a valid F-1 visa, admission to the US is up to the discretion of the US Customs and Border Protection (CBP) officer at the port of entry. We therefore caution you to carefully consider the need to travel as an F-1 student with OPT and list below some of the common scenarios and our recommendations.

1. My OPT employment card has not expired and my H-1B petition has been accepted, but not yet approved.

If you travel outside the US in this situation, the change of status part of your H-1B petition will be abandoned. This means that even when the H-1B is approved, your status will not change to H-1B because you departed the US while the H-1B “change of status” petition was pending. Your employment eligibility will end on September 30, 2014 with expiration of the cap-gap extension, and you will need to depart the US, apply for an H-1B visa stamp based on the petition approval, and reenter after October 1, 2014 to activate your status as an H-1B worker.

2. My OPT employment card has not expired and my H-1B has been approved.

In this situation, according to guidance from USCIS, it is possible to travel and not abandon the change of status because it has already been approved and is for a date in the future. Since there is no abandonment, once you return to the US on your F-1 visa, your change of status will be effective on October 1. However, there is a very real risk in traveling in this scenario as upon approval by USCIS of your H-1B petition, the Student and Exchange Visitor Information System (SEVIS) may no longer reflect that you are an F-1 student and you may have difficulties entering the US in F-1 status.

3. My OPT employment card has expired.

In this situation, you are eligible to remain in the US and continue working under the cap-gap extension rule discussed above. However, there is no provision or guidance from USCIS that allows for reentry during this cap-gap period once your EAD has expired. Therefore, if you must depart the US during this period, you will not be able to return to the US until you obtain an H-1B visa stamp based on approval of the H-1B petition. Initial entry into the US on an H-1B visa is allowed up to 10 days in advance of the start date of the petition approval. So, for an October 1 start date, this entry date can be as early as September 21. However, you will not be able to resume employment until October 1, 2014. Unless there is an emergent need to travel and arrangements can be made for remote work outside the US, you should make no plans to travel after expiration of your OPT employment card.

4. I need to depart the US and will not return until October 1 or later and will apply for the H-1B visa.

You can apply for the H-1B visa stamp any time after approval of the H-1B petition as soon as you can schedule an appointment at the US Embassy or Consulate. The visa will not be effective until October 1, 2014, but you can, and are encouraged to, apply for it as soon as possible to avoid the rush in September. Please note H-1B nonimmigrants are allowed to enter the US up to 10 days in advance of the petition validity. However, you cannot start employment in H-1B status until October 1. This 10-day time period is intended to allow you to get settled in the US before starting employment.

5. My H-1B petition was denied by USCIS.

If your H-1B petition is denied and your OPT EAD is still valid, you are authorized for ongoing employment in the US until your EAD expires. However, cap-gap employment eligibility after expiration of the EAD is only valid while the H-1B petition is pending with USCIS. Therefore, you are no longer eligible to continue working in the US if your H-1B petition is denied and your OPT EAD has expired.

The examples above all deal with the situation where the H-1B filing has been accepted by USCIS out of the quota. If the H-1B petition filed on your behalf was rejected, you may choose to travel if you have a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US in the form of an employer letter and/or recent pay slips. You may also stay in the US for 60 days after the expiration of your F-1 OPT status, but only for purposes of settling your personal affairs and domestic travel within the US. You are not allowed to work during this 60-day grace period. If you travel outside the US during the 60-day grace period, even if you do not plan to work upon your return, you will not likely be readmitted because you will be deemed to have departed the US at the conclusion of your F-1 program, thus fulfilling the need for the 60-grace period. The 60-day grace period is not meant to facilitate international travel and reentry — it is designed to allow F-1 students to remain in the US at the end of the F-1 program to settle their affairs until they are ready to depart the US.

Article By:

Susan J. Cohen
William L. Coffman
Of: 
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Flextime Consideration Is Now Law In Some Places

Barnes Burgandy Logo

The pros and cons of implementing “flextime” policies have long been debated. Two laws – one state and one municipal – went into effect at the beginning of this year, however, that made it mandatory for some employers in those jurisdictions to consider flexible working arrangements for their eligible employees.

Vermont passed a “flexible working arrangements” law, which grants employees the right to request a flexible working arrangement for any reason and requires employers to discuss and consider such requests at least twice per calendar year. “Flexible working arrangement” is defined to including changes in the number of days or hours worked, changes in the employee’s start or stop time, work from home, or job-sharing. The law identifies several factors the employer may consider in choosing to grant or deny the request, including costs, effect on employee morale, ability to meet demand, and effect on schedules and staff.

San Francisco passed the “Family Friendly Workplace Ordinance,” which applies to employers with 20 or more employees. It grants certain employees with caregiving responsibilities the right to request  a schedule, location, or assignment change in order to care for children, persons with a serious health condition with whom the employee is in a family relationship, or parents who are 65 or older. Employers must meet with the employee within 21 days of the request and provide a written response. In the case of a denial, the employer must set out a bona fide business reason for the denial.

These laws require conversations that many companies have already been having with their employees. If flextime arrangements are something your company is considering, it is important to remember that such policies require very careful drafting and execution. For example, policies should explain the jobs for which flextime arrangements are and are not possible to avoid potential discrimination claims. Further, FLSA considerations such as overtime and exempt/non-exempt distinctions must be kept in mind when rearranging schedules and tracking hours. Workers’ compensation claims from telecommuting employees injured at home will also require special attention.

Vermont’s law can be found here. More information and a link to the San Francisco ordinance is here.

Article By:

Kaitlyn N. Jakubowski
Of:
Barnes & Thornburg LLP