February 12, 2024

Beyond the Scales: Addressing Weight Bias in the Workplace

Leslie Perkins

by Leslie Perkins

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

Current Measures Against Body Discrimination

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

February 7, 2024

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

Sarah Bileti

By Sarah Bileti and Samantha Wolfe

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

Key Highlights:

  • Samantha Wolfe

    Samantha Wolfe

    Limited Movement in EB-2 and EB-3 Categories: USCIS and the State Department have reported minimal progress in the EB-2 and EB-3 categories for various regions, with exceptions for India and China.

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

Read more >>

February 1, 2024

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

Sarah Bileti

By Sarah Bileti and Samantha Wolfe

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

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

Samantha Wolfe

Samantha Wolfe

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

USCIS Published a Final Rule Adjusting Fees

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

January 30, 2024

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

Ann Lee

Ann Lee

by Ann Lee and Samantha Wolfe

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

Understanding the Background

Samantha Wolfe

Samantha Wolfe

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

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

January 23, 2024

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

Sarah Bileti

By Sarah Bileti

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

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

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

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

January 16, 2024

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

Kody Condos

by Kody Condos, Camila Moreno, and Greg Saylin

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

Greg Saylin

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

  1. Camila Moreno

    “The worker’s opportunity for profit or loss;”

  2. “Investments by the worker and the potential employer;”
  3. “The degree of permanence of the relationship;”
  4. “The nature and degree of the potential employer’s control over the work;”
  5. “The extent to which the work is “integral” to the potential employer’s business;” and
  6. “The worker’s skill or initiative.”

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

The Factors, Explained

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

January 9, 2024

California’s New Right to Reproductive Loss Leave Effective January 1

Julie Hamilton

By Julie Hamilton

As we begin 2024, California has a new right for employees to take leave to grieve loss that went into effect with the new year.

Effective January 1, 2024, the state will require employers with five or more employees to provide eligible employees up to five days of leave following a reproductive loss, including failed adoption, surrogacy, or assisted reproduction. This comes one year exactly on the heels of a California law requiring employers to provide leave for employees to mourn the death of a family member.

If you have employees in California, you should prepare to comply with the new requirement and remain alert to the evolving bereavement-leave landscape. Read more >>

December 19, 2023

What Happens When ADA Accommodations Miss the Mark

Janae Ruppert

Janae Ruppert

by Janae Ruppert

As an employer, you exhaustingly hear the repeated recommendation to not only have detailed written policies, but to ensure those policies are followed. Company policies generally ensure compliance with laws and regulations, give guidance for decision-making, and streamline internal processes. Typically, employers can overcome significant consequences by consistently enforcing their policies and procedures.

However, when confronted with accommodation situations, sometimes employers need to step away from the policies and conduct a deeper factual analysis to support a decision. The 10th Circuit Court of Appeals recently provided useful guidance on how to properly address an accommodation request which may violate an internal policy. The court sent a case back for a trial after finding that just because a corrections officer’s requested accommodation violated the employer’s neutral policy, inconsistency with the policy by itself, did not render the request unreasonable. Read more >>

December 1, 2023

A Reminder for Employers: Review Your Separation Agreements

Mark Wiletsky

Mark Wiletsky

by Mark Wiletsky

Companies routinely use separation agreements with departing employees. Through those agreements, the employee receives some type of separation benefit (typically a payment or severance) in exchange for waiving and releasing any potential claims against the company.

The goal is to avoid an existing or potential dispute, claim, or lawsuit. But if companies don’t routinely review and update those agreements, they risk the agreement being challenged or invalidated. Even worse, companies are sometimes investigated and forced to pay fines or penalties for provisions in the agreements. A recent settlement announced by the Securities and Exchange Commission (SEC) provides a strong reminder to employers to regularly review and update agreements used with employees.

Facts

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

November 28, 2023

Accommodating a Request for Worship Space in the Workplace

Mark Wiletsky

Mark Wiletsky

by Mark Wiletsky

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

The short answer is: Maybe. You must reasonably accommodate em­ployees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship.

For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employ­er’s] particular business.” The Equal Employment Opportunity Com­mission (EEOC) has provided similar guidance, stating that employers shouldn’t try to suppress all religious expression in the workplace. Read more >>