January 30, 2024

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

Ann Lee

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

Understanding the Background

Samantha Wolfe

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

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

January 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:

Camila Moreno

“The worker’s opportunity for profit or loss;”
“Investments by the worker and the potential employer;”
“The degree of permanence of the relationship;”
“The nature and degree of the potential employer’s control over the work;”
“The extent to which the work is “integral” to the potential employer’s business;” and
“The worker’s skill or initiative.”

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

The Factors, Explained

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

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

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

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

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 >>

November 14, 2023

Remote Work and Mass Layoffs: A Closer Look at the WARN Act

Leslie Perkins

by Leslie Perkins and Karina Sargsian

With the remote work model becoming increasingly prevalent and technology continuing to reshape the way people work, certain employment laws struggle to keep up with the evolving realities of the modern workforce.

One such law causing confusion as to the extent of its reach in the remote work era is the Worker Adjustment and Retraining Notification Act (“WARN Act”). At its basic core, the WARN Act requires covered employers to provide 60 days advance notice when, among other things, a mass layoff is on the horizon. (More on the specifics below).

Karina Sargsian

The WARN Act defines a mass layoff as an employment loss of a certain number of employees at a “single site of employment.” This raises the issue as to whether layoffs of remote employees trigger the WARN Act at all.

While the WARN Act does not specifically call out remote employees as part of its analysis, this does not mean that companies with remote employees are in the clear of the WARN Act’s reach.

Several courts have taken the position that remote workers are not an excepted class outside the purview of the WARN Act, rather the issue appears to be fact-specific and requires substantive analysis. Meaning, if a company gets sued for violating the WARN Act, it is not a defense to claim that the majority of its employees were remote employees and therefore they have not met the minimum number of employees required to trigger the WARN Act at a “single site of employment.” Read more >>

November 2, 2023

Water Sources and Compliance with the PUMP Act

Dana Dobbins

By Dana Dobbins

Question: To be compliant with the PUMP Act, it states there must be a water source. Must this water source be in the same room as the designated space, or is nearby acceptable? It is difficult to identify a space that can be locked, quiet, and private that is not a bathroom but also has a sink.

Answer: The federal Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law on December 29, 2022. The PUMP Act requires em-ployers to provide covered employees with “a place, other than a bathroom, that is shield-ed from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. 218d(a)(2). This law does not require that a water source be within the designated lactation space. Read more >>

October 31, 2023

Breastfeeding Accommodations in the Workplace

Dana Dobbins

By Dana Dobbins

The ability to pump breast milk in the workplace is protected by the FLSA. In 2010, the Break Time for Nursing Mother Act was passed as part of the Affordable Care Act (ACA) and amended the FLSA to include break time and space requirements for nursing to pump breast milk at work. The PUMP Act was signed into law on December 29, 2022, further amending the FLSA to extend the reasonable break time requirement and expand lactation space requirements. The PUMP Act also extended available remedies for violations. Employers should be cognizant of the PUMP Act requirements, as well as any further protections imposed by state and local law.

Break Time Requirements

The PUMP Act requires employers to allow covered employees, for one year after the child’s birth, to take reasonable break time each time such employee has need to express the milk. The PUMP Act is silent as to what is considered a reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent that these issues are to be determined on a case-by-case basis depending on the individual needs of the employee. The Department of Labor (DOL) has explained that the frequency and duration of breaks will depend on a variety of factors, including the location of the lactation space, and the steps reasonably necessary to express breast milk, such as pump setup. An employer cannot deny a break for a covered employee who needs to pump. Read more >>