The National Law Forum

U.S. Union Numbers Continue Their Decline – Reach 100 Year Low

The U.S. Bureau of Labor Statistics has released its annual report on unionization data in the United States, and the numbers continue to be on the decline for unions as a whole. Membership in unions nationally dropped from 11.3 percent in 2013 to 11.1 percent in 2014. Other interesting data points in the report include:

Public-sector workers had a union membership rate of 35.7 percent, more than five times higher than that of private-sector workers (6.6 percent).
Workers in education, training, and library occupations and in protective service occupations had the highest unionization rate at 35.3 percent for each occupation group.
Men had a higher union membership rate (11.7 percent) than women (10.5 percent) in 2014.
Among states, New York continued to have the highest union membership rate (24.6 percent), and North Carolina again had the lowest rate (1.9 percent).

A link to the full report can be found here.

Additionally, one news outlet is reporting that these numbers show a “100 year low” in U.S. Union Membership, and that article can be found here.

As discussed previously on the BT Labor Relations Blog, however, union election rule changes recently issued by the NLRB will make it significantly easier for unions to organize employers in the coming years, so we could see an upswing in these numbers, at least in the private sector, in future editions of this report.

ARTICLE BY

David J. Pryzbylski

Barnes & Thornburg LLP

Whistleblower to Receive $23 Million in Office Depot Case

“Our actions speak louder than words. We are accountable: doing what we say we’re going to do efficiently and on time.” These words come directly from Office Depot’s vision statement, part of the company’s code of ethics. Last week, Office Depot agreed to pay $68,500,000.00 to settle charges that it defrauded California government customers.

Evidently, actions really do speak louder than words!

The suit against Office Depot was originally filed by a whistleblower on behalf of the State of California. By the time it was resolved, over 1000 California cities, counties, school districts and other agencies are eligible to share in the settlement money.

David Sherwin, a former account manager in the company’s business solutions division, originally filed the suit. Sherwin filed his complaint under the California False Claims Act, a law which allows a whistleblower with original knowledge of fraud against the state to file a complaint in the name of the state and keep a percentage of whatever the government collects.

Sherwin claimed that Office Depot was violating pricing agreements negotiated through the U.S. Communities Government Purchasing Alliance, a non-profit organization that helps government agencies get the lowest prices on goods and services. Under the agreement, Office Depot was required to give participating government agencies the same low prices that had been negotiated through the Alliance.

Instead of giving member agencies the lowest prices, Sherwin said that the company sometimes put customers into higher pricing plans without their knowledge and did not drop prices when a more favorable price had been worked out through the Alliance.

Although it agreed to pay over $68 million to settle the charges, Office Depot admitted no wrongdoing and said Sherwin’s claims had “no merit.”

The story has a bittesweet ending in that Sherwin is entitled to $23 million in whistleblower award monies but died only a month after testifying in the case. His estate will receive the award.

This isn’t Office Depot’s first brush with whistleblower suits and fraud allegations. In 2010, the company paid $4.5 million to settle overcharging claims brought by the State of Florida. The company is also reportedly being investigated in New York, Texas and Arizona.

California isn’t the only state with a whistleblower law on its books. A total of 29 states have similar laws, often called False Claims Acts, which allow a whistleblower to keep a portion of whatever monies are collected by the government. To qualify, you must have original source (inside) information about a fraud involving taxpayer funds or a taxpayer funded program. Many of the claims are associated with Medicare, Medicaid, procurement contracts and residential mortgage lending. The latter are eligible for whistleblower awards because the government backs most mortgages.

ARTICLE BY

Brian Mahany

Mahany & Ertl

The New Illinois Secure Choice Savings Program: Considerations for Employers

On January 4, 2015, the governor of Illinois signed into law the Illinois Secure Choice Savings Program Act (S.B. 2758). This law—first of its kind in the nation—requires certain employers to provide an automatic payroll deduction for savings in a Roth IRA for employees who are over age 18 and who do not opt out. Employers who are subject to this mandate are those who have 25 or more employees in Illinois, have been in business for at least two years, and have not offered their employees tax-favored retirement benefits in the preceding two years. “Small employers” not otherwise subject to the Act may participate in the Program on an elective basis. The Program will not be activated before 2017, and affected employers must establish a payroll deposit arrangement “at most nine months” after the Program opens for enrollment.

Several interest groups promoted this legislation, and several opposed this ambitious law.

Scope of Program

The Secure Choice Savings Program will require affected employers to automatically enroll eligible employees who do not opt out and to facilitate payroll deductions for those employees. The statute provides that employers will not be treated as fiduciaries “over the Program” or liable for Program investments, design, or benefits. No employer contributions are required.

Open enrollment will occur at least once a year. Affected employers will forward the payroll deductions to a system administered by a seven-member state board that will supervise the investment of the assets, engage investment managers, and perform similar supervisory functions. Employers’ activities will also include distributing materials provided by the state board. Penalties for an employer’s violation will be $250 per employee per year, with the amount increasing to $500 for violations with respect to employees who continue to be treated as unenrolled in years after the initial assessment.

Enrollees may contribute up to the IRA maximum, with a default level of 3% of wages for those who do not elect a different percentage or amount. Enrollees will have the investment options provided by the state board.

Employers must consider various federal tax obligations. For example, the Program’s treatment of contributions to a Roth IRA as a payroll deduction implicates federal income and payroll tax obligations with respect to those funds. Contributions to Program accounts, when combined with an employee’s IRA contributions outside of the Program, may not exceed the Tax Code’s annual limit. The extent of an employer’s responsibility, if any, in connection with an employee’s compliance in this context, remains to be developed.

In addition, when disputes arise with respect to an employer’s obligations under the Act—for example, Program penalty assessments—contested matters are ultimately appealed under the Illinois Administrative Review Law (ARL) in a 35-day window (like a statute of limitations, only stricter) for challenges to agency decisions (here, the Department of Revenue). As many practitioners know, the ARL process is one that is laden with procedural landmines for parties who challenge agency decisions in state court.

From a different perspective, the Act attempts to restrict the scope of fiduciary obligations—potentially good news for employers and others involved in the Program. However, drawing lessons from the ERISA experience, contributions to 401(k) plans have sometimes resulted in the delay or failure of contributions from financially distressed employers who must forward money deducted from employee paychecks. For ERISA plans, this can result in United States Department of Labor (USDOL) enforcement in court. However, from practical perspective, the Illinois Secure Choice Savings Program raises questions as to how such non-ERISA violations will be treated.

The law specifically requires the state board to request an opinion from the USDOL regarding ERISA’s applicability to the Program. Also, the state board may not implement the Program if the Program’s IRAs fail to qualify for favorable federal tax treatment normally accorded to IRAs, or if it is determined that the Program is an employee benefit plan, or if any “employer liability is established” under ERISA. In addition, the Program may not be implemented unless there is adequate funding for its operation. Delay in satisfying these various conditions could push the start date to a later time.

Although the Act strives to create a “non-ERISA environment” in which no Program activity will constitute an ERISA plan, the fact that 50 different states may create various programs with rules different from the Illinois rules suggests that the USDOL may scrutinize not only the definition of a “plan” but also theAct itself for adequate avoidance of the patchwork of rules from which ERISA was enacted to spare multi-state employers.

The recently inaugurated federal MyRA (my retirement account) program bears some analogy to the Illinois Program; for example, its reliance on Roth IRAs. However, there are several important differences in the two models. Although the USDOL recently gave assurance that MyRAs would not constitute ERISA plans, the specter of numerous state programs could well give federal regulators pause. ERISA preemption does not extend to federal laws, but many non-federal programs promoting retirement benefits could be viewed as requiring close and time-consuming review. Assuming federal authorities conclude that ERISA is not implicated by the Illinois Program, that conclusion may be slow in coming if DOL regulators see a need to deal comprehensively with future programs of other states. On the other hand, Illinois authorities may have already coordinated informally with the USDOL, and the Program’s clearance might be fast-tracked in Washington.

Start-up of the Program will also entail definitional clarifications of certain terms used in the Act, particularly those used to define the scope of the Program.

Much commentary on this law is possible—from regulatory, fiscal, procedural, and other perspectives. But given the two-year wait, the required clearances from federal agencies, the possibility that some changes in the law may occur, and the potential challenges in Illinois for funding the Program’s operations, we will defer detailed commentary to a later date.

What Should Employers in Illinois Do Now?

Given the long period of at least two years before the Act’s implementation, and given that the law directs Illinois regulators to deal with federal agencies and secure adequate funding for Program operations, employers should monitor developments relating to the Program.

Employers who clearly or arguably employ 25 or more employees should determine whether any Illinois employees are not covered by a tax-favored retirement plan. Close questions will have to be reviewed in light of interpretations of the statute. A single eligible employee who does not opt out may require the employer’s compliance.

Effect on Employers Based in Other States

If the new law takes effect in Illinois as presently contemplated—and even if it doesn’t—other states may soon be seen enacting similar laws intended to mandate the enrollment of employees not covered by an employer’s retirement plan. Those jurisdictions should also be monitored for legislative moves like the Illinois Secure Choice Savings Program Act because the Illinois Act could be a harbinger of similar laws in other states.

Same Sex Marriage and Tax Law…A Rough Landscape

Another tax season is upon us, and the hardships of complying with another annual tax return filing requirement affects most of us. However, for same sex couples, the hardships are further exacerbated by the different tax laws at the state level. At the time this post is published, same-sex marriage bans remain in place in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas. These bans and various appeals cause uncertainty for some same sex couples with regard to their filing status. Fortunately, though, clarity (we hope) is just around the corner as the U.S. Supreme Court has finally agreed to take up the matter of same-sex marriage in April 2015.

ARTICLE BY

Joseph Tamburello

Horwood Marcus & Berk Chartered

Business Immigration: 2016 H-1B Cap, You’ve Been Warned, Now Here Are This Year’s Key Dates

Fiscal Year 2016 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) will start accepting new H-1B petitionsfor fiscal year 2016 on Wednesday, April 1, 2015. Employers must immediately start identifying current and future employees who will need to be sponsored for new H-1B petitions.

This chart identifies the absolute latest cut-off dates to file Labor Condition Applications (LCAs) and H-1B petitions for this year’s H-1B quota (H-1B cap).

It is extremely likely that this year’s H-1B quota (H-1B cap) will be met within five business days of it opening and USCIS will then stop accepting new petitions until next year’s H-1B cap, which will open on April 1, 2016. If USCIS receives more petitions than are available in the quota, then a lottery will be conducted to select the petitions that will be processed under the H-1B cap.

Please note that only new H-1B petitions are affected by the H-1B cap; H-1B petitions involving someone who has already been counted against the H-1B cap or who has previously held H-1B status are not affected by the H-1B cap.

H1-B Key Dates

By way of background, U.S. businesses use the H-1B program to employ foreign workers in specialty occupation positions that require theoretical or technical expertise in specialized fields, such as scientists, engineers or computer programmers. The number of initial H-1B visas available to U.S. employers (the H-1B cap) is 65,000, with an additional 20,000 numbers set aside for individuals who have obtained a U.S. master’s degree or higher.

The usage of the H-1B program is strongly connected to the health of the U.S. economy. The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased as the economy has improved. For example, last year USCIS received 172,500 H-1B petitions within the first week of filing, requiring a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master’s cap of 20,000. Business immigration practitioners are predicting that this year’s H-1B demand will be even greater than last year (perhaps 200,000 or more filings during the first week of the filing season, April 1, 2015, through April 7, 2015) and as a result more than half of all H-1B petitions filed by employers may be rejected by USCIS due to the randomized lottery system.

Petitions not selected in the H-1B lottery will be rejected. Should such a rejection occur, an affected foreign national seeking immigration and employment authorization sponsorship with an employer will be unable to obtain an H-1B visa until at least Oct. 1, 2016, (with the filing season beginning April 1, 2016). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States. In such cases employers will need to look at alternative visa options for employees unable to secure an H-1B visa.

Recommended Action

Based upon the above, Greenberg Traurig’s Business Immigration & Compliance group strongly urges employers to file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2016: mailing of H-1B cap-subject petitions to USCIS on March 31, 2015, for delivery to USCIS on Wednesday, April 1, 2015, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition.

It also is recommended that H-1B cases should be initiated immediately. It can take two to four weeks or more to gather all of the necessary information and documentation, and prepare the requisite forms and supporting documentation for filing of an H-1B petition. Required information from the employer will include: (1) job title; (2) job description; (3) job location; (4) minimum education and experience required for the position; and (5) offered wage/salary. Required information from the employee will include: (1) resume; (2) educational documents (diplomas and transcripts); and (3) any documents related to prior or current U.S. immigration status.

ARTICLE BY

Scott T. Decker

Ian R. Macdonald

Greenberg Traurig, LLP

Mergers and Acquisitions and the Affordable Care Act

As most employers already know, the Affordable Care Act (a/k/a ObamaCare or the ACA) now imposes health care insurance coverage requirements upon certain employers which have a certain number of full time and full time equivalent employees (“FTEs”). Therefore, it is imperative that consideration be given to whether parties involved in any merger or other acquisition transaction are currently subject to the requirements of the ACA (and if so, whether they are in compliance with such requirements), or will otherwise be subject to the requirements of the ACA following the consummation of the transaction.

If the buyer or seller company is a “small business,” meaning the company has less than 50 FTEs, it should not be subject to the ACA. However, a determination has to be made as to whether or not individuals who are treated as independent contractors are, for the purposes of the ACA, truly independent contractors, or rather are deemed to be employees. While the ACA makes reference to certain federal statutes with respect to this determination, it is clear that the Obama administration has uniquely and aggressively interpreted the ACA to accomplish its objectives. In those circumstances where the seller or buyer company is below 100 FTEs for the year 2015, the company will be exempt from the requirements of the ACA for the year 2015, but subject to the ACA thereafter. Even in those circumstances where companies clearly are subject to the ACA, the question then becomes whether or not all of the individuals who provide services to that company are classified appropriately (employees v. independent contractors), and whether the requirements of the ACA have been complied with regarding those individuals.

A new level of complexity has been added in this area by a relatively recent interpretation of the National Labor Relations Board (NLRB) in a franchise case dealing with the classification issue, in which the NLRB found that the various employees of the franchisees were also employees of the franchisor. This could automatically create, for any national franchise, a situation where the local franchisee meets the large employer threshold of the ACA, and therefore would be liable to comply with the requirements of the ACA. Obviously, the position taken by the NLRB will be contested and is a long way off from being established as binding law upon all employers. Notably, this very issue has already been addressed in various state courts. For instance, in contrast to the NLRB decision, the California State Supreme Court recently determined in a 4 to 3 decision that the employees of a franchisee are also not employees of the franchisor.

While the ACA references certain federal statutes for determining whether or not an individual is an employee, in the recent case of Sam Hargrove, et al. v. Sleepy’s, LLC , the New Jersey Supreme Court has advised the Third Circuit that for the purposes of the wage and hour laws, the interpretation should follow New Jersey case law, which provides a much stricter definition for independent contractors than the federal law. Only time and litigation will tell what interpretation will be made under the ACA for the purposes of determining whether an individual is an employee or an independent contractor with respect to the determination as to whether the employer is a small business subject to the ACA and whether or not an individual is entitled to health care coverage.

In summary, careful consideration must be made in any merger or acquisition transaction as to whether the seller company in an asset purchase or equity purchase is, or the combined company in any merger, consolidation or similar combination will be, subject to the onerous requirements of the ACA based on the number of FTEs of the company. In order to make such a determination, further consideration will need to be made into applicable case law as to whether or not individuals who are designated as independent contractors of the company are truly independent contractors, or rather should be deemed to be employees of the company for purposes of the ACA. However, because the law in this area is not entirely settled and continues to evolve, companies involved in merger or acquisition transactions and companies contemplating merger or acquisition transactions will need to stay informed on these issues.

ARTICLE BY

Ari G. Burd

Patrick S. Convery

Giordano, Halleran & Ciesla, P.C.

Marketing: How to Identify Your Ideal Target Market

When it comes to marketing your law firm, identifying your target market is job #1. If you don’t do that, nothing else you do will matter.

Many attorneys may struggle with developing a concise, detailed description of their target market, but it is vital that you do this or your marketing efforts will fall flat.

Ask yourself these 10 questions when trying to determine your target market:

1. Who would pay for my service? People that have legal issues need attorneys, so what specific problems do you solve and who is willing and able to pay for that solution?

2. Who has already purchased my legal services? Take a look at your current client base and search for commonalities.

3. What is the extent of my reach? What geographic area can you realistically serve? Based on the type of law you practice, you may need to restrict or expand your area of service. For example, a divorce attorney will probably have a smaller geographic area than an IP attorney.

4. Am I making the right assumptions? As I have said many times, you are not your client. You need to talk to your existing clients or prospects to see what resonates.

5. What do people who know me think? Check in with your network peers to get feedback on who they think is your ideal client. They may give you some ideas you might never have considered.

6. How am I going to make money? Are you charging by the hour or by the case? This can determine who will be best able to afford your services.

7. How am I going to sell my services? Different marketing methods appeal to different demographics. If your target skews young, social media will probably be a top priority for you.

8. What are my competitors doing? Looking at what your competitors are doing can help you define your target market – and then you can develop strategies for differentiating yourself.

9. How will I find clients? Once you have started identifying your target market, you will need to determine how you can market to them efficiently. If you plan to use a website and social media as a key strategy, you will need to understand their online behavior patterns. If you plan to get referrals, you will need a strategy to build a good referral partner base.

10. Are there options to expand my target market? This will largely depend on your practice area, but one way to expand your target market is by creating a niche within your practice area. For example, if you are an estate planning attorney, you may want to develop a sub-specialty in asset protection for wealthy professionals.

ARTICLE BY

Stephen Fairley

The Rainmaker Institute

Winter Weather: OSHA Updates on Cold Weather Hazards

Stepping outside this week is a biting reminder that winter has arrived. OSHA has updated its website with information about winter hazards and the steps that can be taken to protect employees. Although there is no specific standard covering winter weather, employees are protected by the Occupational Safety and Health Act (1970) General Duty Clause or Section 5(a)(1), which requires employers to provide employees a workplace free from recognized hazards. This is a good time for employers to review their cold weather work practices.

In order to plan accordingly, it is essential that employers understand the potential dangers posed by the weather and familiarize themselves with the terminology used by meteorologists and the medical community. Icy conditions or heavy snow can lead to slick or blocked roads and downed power lines. Although people may be advised to stay off the roads in these conditions, such advice is impracticable for workers such as EMTs, snow plough operators, and power company employees. According to OSHA, environmental cold exposes workers to the risk of cold stress. Any worker exposed to cold temperatures is susceptible to cold stress but extra attention should be paid to workers whose work necessitates them being outside, employees with health conditions such as heart disease or high blood pressure, new employees who may not be accustomed to the conditions, and workers who are returning to work after an absence.

In addition to OSHA’s webpage on “Winter Weather” there are other tools available to help an employer assess the situation and take the necessary precautions to protect their workers. The American Conference of Governmental Industrial Hygienists (ACGIH) has published a chart entitled “Work/Warm-up Schedule for a 4-Hour Shift” which provides a clear model for employers to determine the length of time someone can work under decreasing weather conditions. https://www.osha.gov/dts/weather/winter_weather/windchill_table.pdf

According to OSHA, employers can help alleviate the risks of cold stress by adapting work schedules to the weather conditions: implementing safe practices such as limiting the amount of time workers are outside, scheduling frequent breaks, providing hot, sweet drinks (e.g. tea but NOT alcohol); providing engineering controls, including providing radiant heat and protecting workers from drafts. Additionally, employers should monitor workers for signs of cold stress, especially those employees previously mentioned.

Environmental cold can lead to cold stress which occurs when lower skin temperature gives way to a lower core temperature. A person’s body temperature will cool down faster when there is a wind chill. The most common types of cold stress include: frostbite (freezing, usually of the extremities, e.g. fingers and toes, which can lead to amputation of the affected area); hypothermia (characterized by a core body temperature falling below 95° F, can be fatal); chilblains (ulcers caused by repeated exposure of skin to cold temperatures); and trench foot (result of extended periods of cold, wet feet). See NIOSH’s Fast Facts sheet –http://www.cdc.gov/niosh/docs/2010-115/pdfs/2010-115.pdf

According to OSHA employers should train employees about these hazards. Well-educated employees can contribute to a safer working environment. Training should at a minimum cover the following areas:

What are the dangers?
How to recognize the symptoms associated with Cold Stress related conditions
Monitoring oneself and co-workers for signs of cold stress
How to dress appropriately for the weather (i.e. layers of loose clothing)
First Aid in the case of emergency.

OSHA’s Quick Card “Protecting Workers from Cold Stress” is a concise, easy to read reference sheet identifying the most common cold stress health hazards, how to recognize them, and the emergency measures to be taken if you suspect someone is suffering from cold stress. See https://www.osha.gov/Publications/OSHA3156.pdf

Employers whose employees use company vehicles or who work around vehicles, it is also essential for vehicles to be properly maintained and equipped for severe driving conditions. Depending on the work environment, additional training of employees may be advisable. Suggested topics of training might include:

Work zone traffic safety
What to do if you are stranded in a vehicle
How to safely shovel snow
The use of equipment such as snow blowers
Working at heights
Walking safely to prevent slips, trips, and falls
Repairing downed or damaged power lines or being in the vicinity of downed or damaged power lines

See https://www.osha.gov/dts/weather/winter_weather/hazards_precautions.html.

OSHA has published comprehensive materials about winter weather. These may be viewed at https://www.osha.gov/dts/weather/winter_weather/index.html

ARTICLE BY

Tressi L. Cordaro

Jackson Lewis P.C.

US Supreme Court Holds that Juries Should Decide the Issue of Trademark Tacking

In the first substantive trademark decision it has issued in a decade, the US Supreme Court, in Hana Financial, Inc. v. Hana Bank, case number 13-1211 (January 21, 2015), affirmed the Ninth Circuit by holding that whether two marks may be tacked for purposes of determining priority is a question for the jury.

The case involved two organizations providing financial services to individuals in the United States. The Respondent Hana Bank had been operating under that name in Korea since 1991, and first began to advertise its services to Korean expatriates in the US in 1994. Advertisements for those services in the US first appeared in Korean and in English under the name “Hana Overseas Korean Club,” and included the name “Hana Bank” in Korean. In 2000, it changed the name of “Hana Overseas Korean Club” to “Hana World Center,” and in 2002 began operating a bank in the United States under the name “Hana Bank.” This latter enterprise was its first physical presence in the United States.

Petitioner Hana Financial was established in 1994 as a California corporation and began using that name and an associated trademark in 1995. In 1996, it obtained a federal trademark registration for a logo design incorporating the name “Hana Financial” for use in connection with financial services.

In 2007, Hana Financial sued Hana Bank alleging trademark infringement. Hana Bank denied infringement by claiming that under the tacking doctrine it had priority of use of the mark “Hana” for financial services in the United States. The trial jury found in favor of Hana Bank and the Ninth Circuit affirmed that decision on appeal. Since there was a split among the federal circuit courts as to whether tacking should be decided by juries or judges, the Supreme Court granted Hana Financial’s writ of certiorari.

So what is “tacking”? The general rule is that use of two marks may be “tacked together” for purposes of establishing priority of use when the original mark and the revised mark are “legal equivalents.” Marks are “legal equivalents” when they “create the same, continuing commercial impression” so that consumers “consider both as the same mark.” There is no dispute that the commercial impression that a mark conveys must be viewed through the eyes of the consumer. Thus, Justice Sotomayor, writing for a unanimous Court, stated that pursuant to long recognized doctrine, “when the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer.” Accordingly, the Court held that when the facts do not warrant entry of summary judgment or judgment as a matter of law on the question of tacking, the question of whether tacking is warranted must be decided by a jury.

The lesson here for trademark owners is to ensure that archival records of your use of your marks over time are diligently maintained. This will help ensure that in the event the mark is changed in any way for purposes of modernization or otherwise, you have sufficient evidence to prove your earliest date of first use of the “legally equivalent” mark to defend against claims of infringement.

ARTICLE BY

Susan Neuberger Weller

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Department of State Releases February 2015 Visa Bulletin

Cutoff dates in the EB-2 India category advance by six and a half months, cutoff dates in EB-3 for the Rest of the World advance by five months, cutoff dates for China advance by six months, and EB-3 China is still ahead of EB-2 China.

The U.S. Department of State (DOS) has released its February 2015 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 February 2015 Visa Bulletin Say?

The February 2015 Visa Bulletin shows an advance of six and a half months for the EB-2 India category. EB-3 cutoff dates for the worldwide category will advance by five months, and the EB-3 cutoff dates for China will advance by six months.

The cutoff date for F2A applicants from all countries will advance slightly in February.

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 to September 1, 2005. The cutoff date for applicants in the EB-2 category chargeable to China will advance toMarch 15, 2010. The EB-2 category for all other countries will remaincurrent.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to December 22, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by six months to September 1, 2011, which remains ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by seven months to January 1, 2014.

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

China: September 1, 2011 (forward movement of 184 days)
India: December 22, 2003 (forward movement of 7 days)
Mexico: January 1, 2014 (forward movement of 214 days)
Philippines: January 1, 2014 (forward movement of 214 days)
Rest of the World: January 1, 2014 (forward movement of 214 days)

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 February Visa Bulletin indicates no change to this trend. This means 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 February 2015.

China

The January Visa Bulletin indicated a cutoff date of February 1, 2010 for EB-2 applicants chargeable to China. The February Visa Bulletin indicates a cutoff date of March 15, 2010, reflecting forward movement of 45 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to March 15, 2010 may file AOS applications or have applications approved in February 2015.

India

The cutoff date for EB-2 applicants chargeable to India advances by six and a half months to September 1, 2005. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to September 1, 2005 may file AOS applications or have applications approved in February 2015.

Developments Affecting the EB-3 Employment-Based Category

China

The January Visa Bulletin indicated a cutoff date of March 1, 2011. The February Visa Bulletin shows a cutoff date of September 1, 2011, an advancement of six months. This means that applicants in the EB-3 category chargeable to China with a priority date prior to September 1, 2011 may file AOS applications or have applications approved in February 2015.

India

The January Visa Bulletin indicated a cutoff date of December 15, 2003. The February Visa Bulletin will advance slightly, with a cutoff date ofDecember 22, 2003. This means that EB-3 applicants chargeable to India with a priority date prior to December 22, 2003 may file AOS applications or have applications approved in February 2015.

Rest of the World

The January Visa Bulletin indicated a cutoff date of June 1, 2013 for EB-3 applicants chargeable to the worldwide category. The February Visa Bulletin indicates a cutoff date of January 1, 2014, reflecting forward movement of 214 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to January 1, 2014 may file AOS applications or have applications approved in February 2015.

Developments Affecting the F2A Family-Sponsored Category

The January Visa Bulletin indicated a cutoff date of February 22, 2013 for F2A applicants from Mexico. The February Visa Bulletin indicates a cutoff date of April 22, 2013, reflecting forward movement of 59 days. This means that applicants from Mexico with a priority date prior to April 22, 2013 will be able to file AOS applications or have applications approved in February 2015.

The January Visa Bulletin indicated a cutoff date of April 15, 2013 for F2A applicants from all other countries. The February Visa Bulletin indicates a cutoff date of May 8, 2013, reflecting forward movement of 23 days. This means that F2A applicants from all other countries with a priority date prior to May 8, 2013 will be able to file AOS applications or have applications approved in February 2015.

Developments in the Coming Months

As noted in last month’s alert, the DOS Visa Office predicts the following movement in the next three months:

F2A Family-Sponsored Category

The cutoff date in the F2A category will likely advance by three to four weeks per month.

Employment-Based Second Preference Category

The worldwide category will likely remain current.
The cutoff date in the EB-2 China category will likely advance by three to six weeks per month.
The cutoff date in the EB-2 India category will likely advance by four to six months.

Employment-Based Third Preference Category

The cutoff date in the EB-3 worldwide category will continue to advance rapidly for the next several months. Demand is expected to increase significantly, at which point, the cutoff dates will be adjusted accordingly.
The cutoff date in the EB-3 China category is expected to advance rapidly in the next few months. Demand is expected to increase and may result in adjustments to the cutoff date within the next six months.
The cutoff date in the EB-3 India category will advance up to two weeks.
The cutoff date in the EB-3 Mexico category will remain at the worldwide date.
The cutoff date in the EB-3 Philippines category will remain at the worldwide date. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

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 February 2015 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord

Lisa Stephanian Burton

Tracy Evlogidis

Eleanor Pelta

A. James Vázquez-Azpiri

Roland C. Lechner

Morgan, Lewis & Bockius LLP

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Department of State Releases February 2015 Visa Bulletin

Cutoff dates in the EB-2 India category advance by six and a half months, cutoff dates in EB-3 for the Rest of the World advance by five months, cutoff dates for China advance by six months, and EB-3 China is still ahead of EB-2 China.

What Does the February 2015 Visa Bulletin Say?

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

China

India

Developments Affecting the EB-3 Employment-Based Category

China

India

Rest of the World

Developments Affecting the F2A Family-Sponsored Category

Developments in the Coming Months

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