Monthly Archives: January 2024

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 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:

“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 >>