November 25, 2022

H-1B Cap Alternatives: Visa Options for the Healthcare Industry and Biotechnology Companies

The H-1B visa is among the most popular working visas in the U.S. for individuals filling professional (degree-requiring) positions.  Most H-1B visas are subject to an annual quota or “cap.”  These are often referred to as H-1B cap visas.  Because demand exceeds the number of available visas, USCIS conducts a lottery to select which applicants can have their visa application processed.  As has been the case for numerous years running, this year’s H-1B cap has been filled, and new H-1B cap visas won’t be available until the start of the next fiscal year, October 1, 2023.  Employers who do not have the option of employing international talent in L-1 visa status (reserved for multinational companies) or in E-1/ E-2 visa status (reserved for certain foreign-owned companies seeking to employ international talent having the same country of citizenship as the company’s ownership), are left wondering – are we really out of options until October 1, 2023?

The good news is, employers in the healthcare industry and biotechnology industry have several alternatives to H-1B Cap visas.  Here are key visa sponsorship options to consider.

E-3 visa and H-1B1 visa
Available only to citizens of Australian (E-3 visa), Chile (H-1B1 visa), and Singapore (H-1B1 visa) by treaty, these visas have very similar education requirements to the H-1B visa and are reserved for professional positions. As many job candidates in the healthcare and biotechnology industries have a least a Bachelor’s level education, and many jobs in these industries require the same, the E-3 visa and H-1B1 visa are generally good alternatives for Australian, Chilean, and Singaporean nationals working in these industries.   Examples of eligible positions include physicians, IT professionals whose position requires a bachelor’s degree, engineers, pharmacologists, scientific researchers, postdoctoral fellows, registered nurses requiring a bachelor’s degree, therapists, and clinical lab scientists, among others.  While the E-3 and H-1B1 visa categories are also subject to an annual quota, the quota has never been reached.

TN visa
Available only to citizens of Canada or Mexico pursuant to the U.S. Mexico Canada Agreement (USMCA), these visas are available for a specific list of occupations, many of which include occupations in the healthcare and biotechnology industries. Most but not all of the designated occupations require a bachelor’s degree. Examples of eligible positions include registered nurses, computer scientists, mathematicians/Statisticians, Research Assistants, Scientific Technicians, Medical Lab Technologists, Occupational Therapists, Physical Therapists, Pharmacists, Pharmacologists, Teaching or Research Physicians, Psychologists, Biologists, Chemists, Biochemists, Epidemiologists, Geneticists, Dentists, Computer Systems Analysts, Engineers, and Teachers (college and university level), among others. The TN visa is not subject to an annual quota.

F-1 visa, STEM extension
The F-1 visa is a student visa. After students graduate from college or university, they are generally eligible for a 1-year work card to gain practical training in their field of study. Often, employers apply for an H-1B visa for F-1 students, but if the F-1 visa holder is not selected under the H-1B cap lottery before their 1-year work card expires, there may be more options for students with a U.S. degree in Science, Technology, Engineering, or Mathematics (STEM).

Specifically, these students may be eligible for a 2-year extension of their work card (for a total of 3 years of work authorization).  This allows employers in the healthcare industry and biotechnology industry to enter the employee in the H-1B cap lottery for three consecutive H-1B cap lottery seasons, thereby increasing their chance for selection.

Employers who wish to sponsor a STEM extension for an F-1 student must enroll in the online E-Verify employment verification system.  Examples of STEM eligible positions include IT professionals (such as computer programmers, computer scientists, network and system administrators, computer engineers, etc.), environmental scientists, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), postdoctoral fellows, pathologists, and clinical lab scientists, among others.  The STEM extension is not subject to an annual quota.

O-1 visa
This visa type is available to those who have reached a level of sustained acclaim and distinction in their field. Factors for O-1 consideration include original and significant contributions to their field; publication of scientific articles in peer-reviewed journals; media attention or work being highly cited; high salary or other compensation; manuscript review or other review of peers; national or international professional awards; memberships in selective professional organizations; and leading/critical roles for a distinguished organization.  This visa category is generally available to accomplished scientists (principal scientists and associate scientists, research scientists or research associates, postdoctoral fellows, biologists, biochemists, chemists, epidemiologists, etc.) as well as physician-scientists (including residents and fellows), though other professions can also qualify.  The O-1 visa is not subject to an annual quota.

J-1 visa
This visa type has several sub-categories and is available for temporary/term employment to those individuals who are early in their careers and who require training or practical experience (such as interns or postdoctoral fellows), or to those more established in their careers visiting for a finite period (such as professors, visiting scholars, or visiting fellows).  In addition, certain J-1 students enrolled in a U.S. college or university are also eligible for work authorization (academic training) for up to 18 months after graduation, with STEM degree holders eligible for a total of up to 36 months of academic training.  Examples of J-1 student STEM positions include IT professionals (such as computer programmers, computer scientists, network and system administrators, computer engineers, etc.), environmental scientists, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), and postdoctoral fellows, among others.  Notably, physicians in medical training (such as medical residents and fellows) may also be sponsored under the J-1 visa category.  Depending on the specific type of J-1 visa, the educational requirements differ (J-1 intern/trainee visas often require a foreign degree or enrollment in a foreign college/university) and the period of allowable maximum stay differs as well (ranging from 12 months to seven years).  The J-1 visa is not subject to an annual quota.

Cap-exempt H-1B visa
Not all H-1B visas are subject to an annual quota – these are called cap-exempt H-1Bs. In general, an employer is exempt from the quota if they are an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization.  Organizations such as non-profit teaching hospitals (affiliated with a college or university) can thus sponsor professionals without the visa being subject to the H-1B cap.  Importantly, for-profit institutions that will physically employ a professional at a cap-exempt institution (such as a non-profit teaching hospital) can sponsor the professional without the visa being subject to the H-1B cap.  This can benefit private practice physicians, who often physically perform their work at non-profit teaching hospitals.  Physicians serving in a health professional shortage area (HPSA) may also be eligible for a cap-exempt H-1B visa.  In addition, if a cap-subject employer wishes to concurrently hire a professional who is working pursuant to a cap-exempt H-1B visa, it may do so without the visa being subject to the cap, as long as the professional also maintains the cap-exempt employment in H-1B status. (A common scenario is when a visa candidate has a part-time job in H-1B status with a cap-exempt employer and another part-time or full-time job in H-1B status with a cap-subject employer).  Examples of eligible positions include physicians, IT professionals whose position requires a bachelor’s degree, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), postdoctoral fellows, registered nurses whose position requires a bachelor’s degree (very limited), physical therapists, speech therapists, occupational therapists, and clinical lab scientists, among others.  While cap-exempt H-1B visas are not subject to an annual quota, they are subject to the general H-1B maximum work period of six years (some exceptions apply).

Schedule A immigrant petition
While this is not a temporary work visa, and is instead a green card-based petition, it can provide an option for employers seeking to hire nurses who are not eligible for the TN visa (because they are not Canadian or Mexican citizens), and whose position is not eligible for H-1B sponsorship due to the position not requiring a bachelor’s degree. Due to a national shortage of nurses, the government allows for an expedited green card process (Schedule A process) that allows the employer to bypass the typical labor market test required for many green card-based petitions.  Schedule A petitions do not provide an immediate hire date as temporary visas often allow, but these applications can facilitate hiring within a one-to-two-year period for nurses waiting outside the U.S. for employment. Physical therapists are also eligible for a green card process through Schedule A but may have an immediate hire option of an H-1B if the employer qualifies for a cap-exemption listed above.

U.S. immigration benefits available under our current statutory scheme often fall short of meeting the needs of U.S. employers.  Fortunately treaties granting special visa options for citizens of Canada, Mexico, Australia, Singapore, and Chile, along with a domestic policy focused on retaining STEM professionals, has created a wide variety of visa options for professionals in the healthcare and biotechnology industries.  Given these alternatives to the H-1B cap visa, employers in these industries are better-positioned to hire, or continue to employ, international talent.

 

November 18, 2022

Planning Ahead For Holiday Travel: Immigration Checklist

The holiday season is here and travel is reaching pre-pandemic levels.  International travelers should expect busy consulates and U.S. Ports of Entry.   Although U.S. Consulates have committed additional resources to address backlogs, foreign nationals may still encounter long wait times when applying for a visa.  We encourage all travelers to plan ahead to minimize delays when traveling abroad and entering the U.S.

Our holiday travel checklist is designed to help foreign national employees and employers schedule appointments and gather required documentation in advance.

REQUIRMENTS FOR INTERNATIONAL TRAVELERS

Generally, vaccination requirements have replaced COVID-19 testing and travel bans. Noncitizens seeking to enter the U.S. in a temporary status (nonimmigrants) who travel by airline are required to show proof of  full vaccination against COVID-19 before boarding a flight to the  U.S. from a foreign country. Check the Centers for Disease Control (CDC) website for detailed information and exceptions.

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

  • Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
  • Carry all documents required for admission to the U.S. Upon entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or endorsed Form I-20.
  • Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record. At many Ports of Entry, CBP has stopped issuing a passport stamp. If a stamp is issued, ensure that the classification is correct and immediately alert CBP to any errors.
  • Review your I-94 record.After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. This is more important than ever, as CBP moves away from stamping passports at entry.   Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa in the passport or on the passport stamp, if issued. Send Immigration Counsel a copy of your I-94.

CHECKLIST FOR FOREIGN NATIONAL EMPLOYEES (AND EMPLOYERS) WHO DO NOT HAVE A VALID VISA IN THEIR CURRENT PASSPORT

  • Consult with Immigration Counsel in advance. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
  • Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
  • Complete Form DS-160.This form is required for all visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
  • Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with visa applications.
  • Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
  • Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
  • Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment.
  • Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
  • Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
  • Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.

*TIP for visa appointments:  If the consulate has long wait times, book an appointment at the earliest date possible and check the website regularly for newly released appointment times that are more desirable.

TRAVEL DOCUMENTS IF YOU DON’T NEED A VISA FROM THE CONSULATE

  • Visa Waiver Program travelers must have a valid ESTA approval.The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel, which may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes his/her name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
  • Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without an Advance Parole may result in denial of the I-485 application. Note that the Advance Parole document must be valid when you depart the U.S. and valid when you return.

HELPFUL LINKS

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com.

 

October 25, 2022

New York City Salary Range Transparency Law Takes Effect November 1

This is a reminder that the New York City Salary Range Transparency Law, originally scheduled to go into effect on May 15, 2022, will become effective on November 1, 2022.

By way of background, the new law amends the New York City Human Rights Law to require covered employers (those with 4 or more employees) who post a job, promotion, or transfer opportunity for a position that can or will be performed, at least in part, in New York City to disclose the minimum and maximum annual salary or hourly wage that the employer in good faith believes it would pay for the position.

What this Means for Employers

In preparation, it is recommended NYC employers review job descriptions for the jobs that will be advertised and include a good faith salary range with the position’s description.

Employers will need to include a salary range for any positions you anticipate advertising (or continuing to advertise) after November 1, for all covered job listings under the new law. Covered job listings are defined broadly to include any advertisement that includes a “written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants” (which may include existing employees) and includes advertisements “on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements.”

While not a technical requirement, you also may wish to consider internally documenting the factors used to determine the salary range for a given position and/or provide information in the job posting itself about the factors that may impact what salary within the stated range may be offered to any particular candidate (e.g., years of experience, level of education obtained, etc.).

Please note that under the new law, salary includes only the base annual or hourly wage or rate of pay and does not include other forms of compensation or benefits offered in connection with the advertised position. Thus, an advertisement does not have to include health insurance, time off, severance pay, overtime pay, commissions, tips, bonuses, stock, or 401(k) plans.

New York State

On June 3, 2022, the New York State Legislature passed a similar bill that would require private-sector employers to disclose the range of compensation in all advertisements for jobs, including remote positions, that can or will be performed, at least in part, in New York State. Employers will also be required to maintain all necessary records, including the history of compensation ranges and job description for each job, to comply with the new law. The New York State law is expected to take effect in March 2023, 270 days after it was passed, as long as it is not vetoed by the Governor.

California

California also has passed a wage transparency law scheduled to go into effect on January 1, 2023. Employers with 15 or more employees will need to include salary ranges on job postings, among other requirements. It is anticipated that California will issue updated guidance in the coming months on complying with the new law.

Gibney will continue to monitor the salary transparency trend for guidance updates. For employment-related questions, please contact Robert J. Tracy.

October 18, 2022

Diversity Visa Lottery for FY 2024 Now Open

WHAT IS THE DIVERSITY VISA LOTTERY?

The Fiscal Year (“FY”) 2024 Diversity Immigrant Visa Program (“DV Program” or “DV-2024 Program”) provides up to 55,000 immigrant visas (aka permanent residence or green cards) for issuance in FY 2024 to persons from countries with low immigration rates to the U.S. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (“LPR”) status under this program on the basis of a lottery. The DV Program is administered by the U.S. Department of State, and there is no cost to register.

WHEN CAN I APPLY?

The online registration period for the DV-2024 Program is from 12:00PM EDT (GMT -4) on October 5, 2022 to 12:00PM EST (GMT -5) on November 8, 2022. The entry form will only be available for submission during this time.

WHO IS ELIGIBLE?

  • An individual must have been born in an eligible country and must meet minimum education/work requirements.
  • For DV-2024, natives of the following countries/areas are not eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), United Kingdom (except Northern Ireland) and its dependent territories, Venezuela, and Vietnam.
  • Natives of Macau SAR and Taiwan are eligible.
  • Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible, may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.
  • A foreign national must also have either a high school education or its equivalent or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

HOW DO I APPLY?

  • Submit the Electronic Diversity Visa Entry Form online at state.gov during the entry period indicated above. Entries will NOT be accepted through the U.S. Postal Service.
  • In years past, the last week of the registration period saw heavy demand on the application website, causing website delays. Therefore, submitting an application as early as possible during the entry period is encouraged.
  • An applicant may only submit ONE lottery entry; individuals who attempt to submit more than one entry will be disqualified.
  • The application must be accompanied by digital photographs of the applicant as well as their spouse and/or dependent children, taken in accordance with requirements. Note: Each individual may submit his/her own application if he/she otherwise qualifies.
  • The applicant must also enter valid international travel passport information unless they meet the requirements for an exemption. An exemption may apply if an applicant is stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State.

HOW DOES THE SELECTION PROCESS WORK?

  • DV Program winners are selected via an electronic lottery. After entering, it is critical that the applicant safeguard the confirmation page as it contains the information needed to check the application status.
  • All DV-2024 entrants must go to the Entrant Status Check website using the unique confirmation number from the online registration to find out whether their entry has been selected in the DV Program
  • Entrant Status Check will be available at state.gov starting at noon (EDT) on May 6, 2023 through at least September 30, 2023. Lottery winners will not receive correspondence in the mail.
  • Selection in the DV Program does not automatically confer U.S. LPR status – only the opportunity to apply for it.

HOW DO I APPLY FOR PERMANENT RESIDENCE IF I AM ELIGIBLE?

Applications for permanent resident status can be completed by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. If an applicant is selected in the DV-2024 Program, the actual application for permanent resident status must be filed and approved by September 30, 2024; if an application is not approved by that date, the application is invalidated.

Note: more individuals are selected in the DV Program than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Program may ultimately be unable to become U.S. LPRs if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the DV-2024 Program may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2024 Program Instructions.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

October 8, 2022

H-1B Cap Petitions Effective October 1, 2022

Petitions filed as Change of Status

Fiscal year 2023 H-1B cap petitions filed as “change of status” and approved by USCIS automatically took effect on October 1, 2022 if the beneficiary:

  • was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved; and,
  • was physically present in the U.S. on October 1, 2022 for the change of status to take effect.

With the exception of Canadian citizens, beneficiaries of approved H-1B cap petitions who depart the U.S. will need a valid H-1B visa to return to the U.S. in H-1B status. Many consulates have a wait period of several months to schedule a visa appointment. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and the visa application process.

Petitions filed for Consular Notification

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps for Employers

  • Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9for H-1B cap beneficiaries whose I-9 documents are expiring.
  • Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
  • Pending H-1B Petitions: For H-1B cap petitions still pending, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2022.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

October 6, 2022

USCIS Offers Premium Processing for More Permanent Resident Petitions

U.S. Citizenship and Immigration Services (USCIS) has further expanded  premium processing eligibility to include more Form I-140, Immigrant Petitions for Alien Workers, under the EB-1 and EB-2 classifications, consistent with its initiative to expand premium processing service for certain long-pending, employment-based permanent resident petitions.

As of September15, 2022, premium processing service is now available for:

  • I-140 petitions filed on behalf of multinational executives and managers (EB-1(3) classification) with receipt dates on or before January 1, 2022.
  • I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification) with receipt dates on or before February 1, 2022.

How to Apply
Petitioners who wish to request a premium processing upgrade must file the new Form I-907, Request for Premium Processing Service and pay a supplemental fee of $2,500. USCIS will have 45 days from receipt of the premium processing request and fee to adjudicate the petition.

USCIS will reject premium processing requests if the initial petition receipt date is after the eligibility date, nor will USCIS accept  premium processing requests for newly filed I-140 petitions in the above-referenced categories  at this time.

What’s Next?

USCIS intends  to expand premium processing to additional form types in the months ahead including additional Form I-140 petitions, Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization as part of its mission to improve efficiencies and reduce burdens in accessing immigration benefits.

Gibney will continue to monitor these developments and provide updates as they become available. If you have questions, please contact your designated Gibney representative or email info@gibney.com.

October 4, 2022

Athlete Opportunity and Taxpayer Integrity Act: New NIL Legislation Seeks to Protect Student Athletes

U.S. Senators Ben Cardin (D-Md.) and John Thune (R-S.D) recently introduced the Athlete Opportunity and Taxpayer Integrity Act. The goal of the bipartisan legislation is to protect student athletes by preventing individuals and organizations from using the charitable tax deduction for contributions that compensate them for the use of their name, image, and likeness (NIL).

Nonprofits and NIL Collectives

Now that student athletes can monetize their name image and likeness, there has been an increase in sports endorsements in the non-profit sector whether it is the nonprofits themselves looking to partner with athletes to promote charities for a fee, or promotion partnerships through NIL Collectives. NIL Collectives are groups forming such as alumni or boosters, whose goal is to provide athletes with NIL opportunities, such as partnering with local businesses and charities. The athletes are compensated by the collective.

What is the Proposed Legislation?

Since the recent adoption of the NCAA’s NIL rules, some organizations have made payments to college athletes while also claiming 501(c)(3) charitable status, making their athlete contributions tax deductible. Senators proposing the legislation note that this is inconsistent with the intended purpose of the charitable tax deduction, and that it forces taxpayers to then subsidize athletes’ recruitment and payments. The legislation sets up taxpayer guardrails that prohibit any entities from inappropriately using NIL agreements to reduce their own tax obligations. The goal to ensure that the opportunities available for student athletes to benefit from their own name, image and likeness are protected, while protecting taxpayer funds.

Who Would the Legislation Apply To?

The Act would apply to individuals, organizations and collectives, however educational institutions would be exempt.

What Happens Next?

This can have major tax implications for both the sponsors and the athletes. Gibney is closely monitoring the legislation and will continue to provide updates. For questions, please contact info@gibney.com.

October 3, 2022

Immigrant Visa Availability in FY 2023 and the October 2022 Visa Bulletin

October 1, 2022 marked the start of the federal government’s fiscal year 2023 (FY 2023), with the Department of State (DOS) October Visa Bulletin taking effect the same day.

What is sure to be disappointing to many is the significant retrogression in the availability of immigrant visas (“green cards”) for Indian nationals in the employment-based second preference (EB-2) category.  Moreover, the availability of immigrant visas for all employment-based applicants will be fewer this fiscal year than last.

Annual Immigrant Visa Quotas and Retrogression – Some Background

Each year, by statute, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants, plus any unused visas from the family-based categories in the preceding year. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The employment-based preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable employment-based preference category.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on their priority date, preference category, and country of birth.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, their priority date must be available or “current” on the monthly Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable preference category and country of birth.

Historically visa retrogression has been most severe for foreign nationals born in India and to a lesser extent, China, as the demand from nationals from these countries often exceeds statutory quotas. The result has been a multi-year wait for green card issuance for these individuals.

Immigrant Visa Availability in FY 2023 v. FY 2022

Retrogression for Indian nationals in the EB-2 category in October comes on the heels of a record numbers of immigrant visas being issued in FY 2022.  In FY 2022, DOS was able to allocate 281,507 immigrant visas for the employment-based categories, more than twice the annual statutory quota of 140,000, due to unused visas in the family-based categories from the prior year spilling over to the employment-based categories.  Family-based visas went unused largely due to the pandemic and the Trump administration bans on the issuance of immigrant visas abroad during the pandemic.

According to USCIS FAQs, the employment-based annual limit for FY 2023 will be higher than it was pre-pandemic, but lower than it was in FY 2021 and FY 2022.  DOS estimates that the FY 2023 employment-based annual limit will be approximately 200,000 immigrant visas, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

With the projected reduction in the number of employment-based immigrant visas available in FY 2023, USCIS and DOS collaborate to control the allocation on a monthly basis through the Visa Bulletin, taking into consideration numerous factors including, but not limited to, the inventory of adjustment of status applications already pending with USCIS and whether they can be advanced to approval in the fiscal year, the projected percentage of applications that will not be approved, and the number of applications for the same individual but in different categories, with the stated aim of issuing as many of the available visas as possible within the fiscal year.

With these factors in mind, DOS sets cut-off dates for each preference category as needed, and USCIS determines whether applicants must follow the monthly “Dates for Filing” chart or the “Final Action Date” chart on the Visa Bulletin.

October 2022 Visa Bulletin Dates

With the publication of the October 2022 Visa Bulletin, USCIS determined that applicants may use the “Dates for Filing” chart to determine eligibility to file adjustment of status applications.  The “Dates for Filing” chart allows applicants to file their green card applications, but the applications cannot be approved until an immigrant visa is available based on the “Final Action Date” chart.

The October “Dates for Filing” for the most commonly used employment-based categories are:

EB-1 Priority Workers: 

All countries are “current.”  Individuals from all countries seeking an immigrant visa pursuant to a permanent resident petition (I-140) filed in the EB-1 category may apply.

EB-2 Members of the Professions Holding Advanced Degrees/Persons of Exceptional Ability:  

All countries except China and India are current.

China’s cut-off date is July 8, 2019.

India retrogresses by more than two years, to May 1, 2012.

EB-3 Professional and Skilled Workers:

All countries except China and India are current.

China advances to July 15, 2018.

India advances to July 1, 2012.

The UPSOT

According to DOS, the forward movement of the India priority dates experienced during FY 2022 was due to the unprecedented high number of immigrant visas available in FY 2022.  With the advancement of priority dates in FY 2022, a heavy applicant demand ensued.  This persistent demand (in the form of pending applications – those that were not approved before the annual quota was reached) coupled with significantly lower visa number availability forecasted for  FY 2023 as compared to FY 2022, required DOS to take corrective action to keep  immigrant visa issuance within the maximum allowed under the FY 2023 annual limits.  The retrogression of priority dates is the “corrective action.”

Unfortunately, this means that many Indian nationals who were able to apply for adjustment of status in FY 2021 and FY 2022 now find themselves with pending applications that cannot be approved for the foreseeable future.  While these individuals and their dependent family members (spouse and children under age 21) are eligible for work and travel authorization while their adjustment of status applications are pending, and in some instances have flexibility to change jobs,  they remain in a status limbo, and may face the prospect of their dependent children turning 21 and “aging out” of eligibility for a green card.

Looking Ahead

DOS will soon release the November Visa Bulletin. Dramatic changes from October’s Visa Bulletin are not expected. DOS will continue to monitor the inventory of pending green card applications with USCIS and  the number of immigrant visas issued  to date, and will adjust the Visa Bulletin cut-off dates as appropriate in the months ahead.

Gibney will continue to watch these developments and will provide updates as they become available.  For additional information, please contact your designated Gibney representative, or email info@gibney.com.

The author wishes to thank Law Clerk Jesse Wang for his contributions to this alert.

October 1, 2022

The Three Things Student Athletes Should Consider for Every NIL Contract

With student athletes now able to profit from their name, image and likeness (NIL), athletes are taking advantage of opportunities to partner with brand sponsors. When entering into contracts, athletes need to review carefully the terms of the agreement to protect their personal brand. Here are three key considerations to keep in mind when considering any contract:

  1. Keep the contract terms and duration short.
    Any contract and associated fees remain binding for the full duration of the contract. It is important for student athletes signing an agreement to keep in mind that the fee is not going to change. A fee should be commensurate with an athlete’s experience but every athlete’s experience level and value is going to change over time. Therefore, student athletes should avoid long agreement terms until the full value of your endorsement is known. This is typically further into a professional career and even then, long-term licenses should be considered carefully, as entering into a long-term agreement puts you at risk of having to honor an agreement that does not reflect your current value.Keep your contract term short. The duration of the contract should never extend beyond the length of your remaining time participating in the athletic program at your current institution.

     

  2. Narrow the scope of rights.It is also important to understand the scope of rights that your contract will cover. When entering a license agreement as an athlete, it’s best to keep the scope of rights as narrow as possible to increase your opportunities for economic benefit.

    Avoid contracts that give the other party the exclusive right to use your NIL in a broadly defined (or vaguely defined) group of products.  And never grant NIL rights for products that the other party does not actually sell.

    For example, when partnering with an energy drink company, you don’t want to grant that company exclusive rights for all drinks. If you narrow the focus, such as NIL exclusivity for energy drinks, it allows you to work with other beverage brands in the industry that are not direct competitors. (Don’t lock yourself out of the soda category by giving exclusive rights to a company that does not sell soda.)

    Avoid licensing agreements that give the brand owner exclusive NIL access in a broad category. By narrowing the scope, athletes can work with multiple brands within the same industry and increase their endorsement opportunities.

     

  3. Limit your time commitment.As part of endorsement agreements, it is standard for brands to use athletes in marketing campaigns and ads. This may require time commitments for photoshoots or fittings that are needed. But as part of the contract, athletes may also be asked to do in-person events or a meet and greet. These additional obligations should always be clearly defined, and an appropriate per diem payment agreed to, before signing any agreement to avoid open-ended requests.

    Make sure that all additional conditions are clearly outlined, including payment terns. Protect your time and prioritize your school obligations by requesting that they take place in the off season.

Keeping these tips in mind will help to protect your personal brand. As part of all contract review, it is also important to be in compliance with state and NCAA rules. Different states have their own NIL guidelines so it is important to understand the guidelines based on where the athlete is attending school. Athletes under the age of 18 must also comply with other state laws. Student athletes should always consult with an attorney to make sure that they are compliant with all applicable regulations and guidance, and to set up the best contracts possible for long-term success.

August 24, 2022

FY 2023 H-1B Cap Reached

United States Citizenship and Immigration Services (USCIS) confirmed that the Fiscal Year (FY) 2023 H-1B cap has been reached.

USCIS conducted its initial  H-1B cap lottery  in March 2022, and employers with selected registrations had a 90-day window during which to file H-1B cap petitions for designated beneficiaries.  This year, the number of H-1B petitions submitted by employers during the initial 90-day filing window was sufficient to meet the FY 2023 statutory cap of 20,000 visas for U.S. advanced degree holders, and 65,000 visas for  “regular” cap beneficiaries.  Last year, USCIS conducted additional lotteries in August and November from reserve registrations because the number of H-1B petitions ultimately submitted and  approved during the initial 90-day filing period running from April 1, 2021 to June 30, 2021 was not sufficient to meet the annual statutory H-1B cap.

This year, there will be no additional lotteries.  USCIS has updated registrants’ online accounts to change the status of pending FY 2023 registrations from “Submitted”  to “Not Selected.”

PETITIONS NOT SUBJECT TO THE H-1B CAP

USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.