March 24, 2022

USCIS Expands Acceptable Evidence For EB-1 Extraordinary Ability and Outstanding Researcher/Professor Petitions

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual to expand acceptable evidence under the published material criteria for EB-1 Extraordinary Ability and Outstanding Researcher/Professor petitions, as well as acceptable evidence to meet the “leading or critical role” performed for a “distinguished” institution  criteria as applied to EB-1 Extraordinary Ability petitions.

HIGHLIGHTS

  • With respect to “published material” about the beneficiary as applied to EB-1 Extraordinary Ability and Outstanding Researcher/Professor petitions: such evidence need not be a printed article or book/chapter, and more varied evidence is acceptable, including a transcript of audio or video coverage of the beneficiary or the beneficiary’s work.
  • With respect to evidence to establish the beneficiary played a “leading or critical role” for a “distinguished” institution as applied to EB-1 Extraordinary Ability petitions: such evidence need not be limited to roles reflecting the beneficiary is (or was) a leader within the whole organization or establishment. The beneficiary may instead show they held a leading or critical role for a division or department thereof.

BACKGROUND

The expansion of acceptable evidence for these EB-1 petitions is a further step taken by the Biden-Harris Administration to recognize the diverse and dynamic ways that extraordinary ability professionals and outstanding researchers/professors distinguish themselves in their professional arenas.  While these policy updates are not limited to professionals in Science, Technology, Engineering, and Mathematics (STEM), they closely follow a recent policy update by the Biden-Harris administration to provide clarity and flexibility for EB-2 National Interest Waiver petitions related to STEM fields. Together, these policy updates provide greater access to EB-1 and EB-2 petition approvals and ultimately, towards obtaining a green card.

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

March 21, 2022

USCIS Updates  E and L Spousal Employment Authorization Guidelines

As previously reported, pursuant to a policy announced on November 12, 2022, USCIS will consider E and L nonimmigrant dependent spouses to be employment authorized incidental to their status.  On January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Form I-94 Arrival-Departure Records with new class of admission codes reflecting an “S” for the dependent E or L spouse. An unexpired Form I-94 issued with an E-1S, E-2S, E-3S, or L-2S classification code is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

On March 18, 2022, USCIS went one step further to provide relief for E and L spouses who were issued a Form I-94 by USCIS  prior to the January 30, 2022 implementation of the new classification codes. Starting April 1, 2022,  USCIS will begin mailing notices to E and L spouses who were issued a Form I-94 by USCIS without an “S” annotated I-94. This notice, together with an unexpired Form I-94 reflecting  E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization.   Note, however, that USCIS will only send such notices to individuals who were issued an I-94 on a Form I-797 approval notice  from USCIS pursuant to filing an I-539 application to change or extend nonimmigrant status.  USCIS will not send notices to spouses who were issued a Form I-94 by CBP at a port of entry into the U.S.   Eligible spouses who have not received a USCIS notice by April 30 may  email E-L-married-U21@uscis.dhs.gov to request a notice.

Work Authorization for H-4 Spouses

As a reminder, this benefit is only available for E and L spouses.  Nonimmigrant H-4 spouses are required to have a valid I-94 document showing H-4 status and an EAD for employment. According to the new policy, H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD. To do so, the H-4 spouse must file to renew prior to the EAD expiration date and must have unexpired I-94 showing valid H-4 status.

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

 

March 14, 2022

New Federal Law Ends Forced Arbitration of Sexual Assault and Sexual Harassment Claims: What Employers Should Know 

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”). Significantly, the Act amends the Federal Arbitration Act (FAA) which allowed employers to enforce mandatory predispute resolution through arbitration. The Act invalidates all predispute arbitration agreements and class or claim waivers to the extent they are sought to be applied to any claim of sexual assault or sexual harassment, and provides that victims of sexual assault and/or harassment in the workplace, are given the option of bringing their claims in court.

How the Act Compares to New York Law

In 2018, New York State enacted Section 7515 of the New York Civil Practice Law and Rules (CPLR 7515) which invalidated predispute agreements to arbitrate sexual harassment claims “except where inconsistent with federal law.” In 2019, New York expanded the mandatory arbitration prohibition in CPLR 7515 to all claims of discrimination.

New York Courts have been split on whether CPLR 7515 was preempted by Federal law. With the passage of the Act, it is now clear that in New York, and across the nation, predispute agreements requiring mandatory arbitration of claims of sexual assault or sexual harassment are now prohibited.

New York’s CPLR 7515 is more restrictive than the Act since it prohibits predispute arbitration agreements for all claims of discrimination.  However, it remains to be seen whether New York Courts will interpret CPLR 7515 to invalidate mandatory arbitration provisions unrelated to sexual assault or sexual harassment claims, as New York’s broader arbitration prohibition may be ruled preempted by the FAA.

What Employers Need to Know:

  1. The Act applies to all claims of sexual assault or sexual harassment that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue.
  2. The Act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees who have signed arbitration agreements now have the option to choose to arbitrate these claims or pursue them in court regardless of their contractual agreements with their employers.
  3. The Act does not affect arbitration agreements with respect to claims unrelated to sexual assault or sexual harassment.

How Employers Can Prepare

Based upon the new law, employers should review the arbitration provisions in their agreements to ensure compliance with the Act.

February 4, 2022

E and L Spousal Employment Authorization Update:  CBP Implements Admission Classification System

As previously reported,  under a new policy, USCIS will consider E and L nonimmigrant dependent spouses to be employment authorized  incidental to their status. This means that upon admission and issuance of a valid I-94 document showing  E or L-2 spousal status,  E and L nonimmigrant spouses will automatically be authorized to work without the need to apply to USCIS for an Employment Authorization Document (EAD).

The L or E spouse who wishes to work without obtaining an EAD  must present an I-94 admission document with a spousal annotation for Form I-9 employment verification purposes.  U.S. Customs and Border Protection Headquarters (CBP HQ) has now confirmed that as of January 31, 2022,  it has implemented admission codes so that the E and L spouse’s I-94 issued at a Port of Entry to the U.S. will bear the required annotation. The I-94 will be annotated with an “S” next to the E or L-2 status designation, signaling to prospective employers that the individual is authorized to work during the validity period of the I-94. Spouses admitted in E or L-2 status should review their I-94 document immediately upon admission to ensure that it contains the appropriate annotation.

E and L Spouses without Annotated I-94s

E and L spouses who were admitted prior to January 31, 2022 and who possess an I-94  without the “S” annotation must still present an EAD for work authorization.  As USCIS may take several  months to process  the EAD application, these individuals may consider departing the U.S. and reentering at a Port of Entry to secure a new, “S”-annotated I-94 from CBP. However, individuals should confer with immigration counsel prior to international travel to confirm that they possess the appropriate documentation for readmission to the U.S. and that their travel will result in issuance of a new I-94.  For example, reentry to the U.S. after a brief trip to Mexico or Canada typically does not result in issuance of a new I-94.

There are anecdotal reports that some CBP Deferred Inspection offices may be willing to amend the I-94 record to include the “S” annotation without international travel. This is discretionary. The local CBP Deferred Inspection office with jurisdiction over the admission should be contacted  in advance to ascertain whether it will consider the request.

For those spouses who were admitted to the U.S. prior to January 31, 2022 and who have filed an application to extend their L or E status while in the U.S., USCIS is also expected to implement the “S” annotation on the I-94 issued with the Notice of Approval (I-797).

Work Authorization for H-4 Spouses

As a reminder, this benefit is only available for E and L spouses.  Nonimmigrant H-4 spouses are required to have a valid I-94 document showing H-4 status and an EAD for employment. However, pursuant to new USCIS policy, H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD provided:

  • The I-765 application to renew the EAD is timely filed prior to the EAD expiration date and
  • The H-4 spouse has an unexpired I-94 showing valid H-4 status.

If the spouse has filed an I-539 application to extend H-4 status, the H-4 spouse will not qualify for the auto-extension of the EAD until the underlying H-4 status is granted.

The automatic extension of the EAD will be valid until:

  • Expiration of the underlying I-94 showing H-4 status;
  • 180 days from the prior EAD expiration; or
  • Adjudication of the I-765 extension application, whichever comes first.

L-2 and E spouses who are relying on an EAD for employment may also benefit from  the automatic extension of the EAD under the same terms and conditions described above.

Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

February 2, 2022

New York City to Require Salary Ranges in Job Postings: How Employers Can Prepare

On January 15, 2022, New York City enacted a first-of-its-kind law requiring employers to include a maximum and minimum salary in all job postings for positions located in New York City. The requirement also applies to internal job postings as well as transfers within a company. The new law will go into effect on May 15, 2022. The law will apply to all employers with more than four employees but excludes temporary hiring firms. This means that virtually all employers with employees in New York City will need to comply.

The law amends the New York City Human Rights Law, the anti-discrimination law governing New York City employers.  The statute specifically states “It shall be an unlawful discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement.”

While the law does not require employers to publicly advertise or internally post its open positions, should the employer choose to advertise or post, it must include the salary information.

Employers Can Expect More Guidance

  • New York City is expected to issue guidance on compliance with the law.  It is expected that more information will be provided as to what constitutes “salary” and whether the advertisement must state whether the position is exempt or non-exempt from overtime pay.
  • For employers considering the minimum and maximum salary for a particular role, the law provides only that “the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job (internal and external listings), promotion or transfer opportunity.”  We can expect additional guidance on minimums and maximums as well.
  • Specific penalties against employers have not been detailed as of yet. However, employers who fail to include the minimum and maximum salary offered for any position located within New York City may be subject to penalties including damages, attorneys’ fees, and fines.

How Employers Can Prepare Now to Ensure Compliance

All New York City employers should take steps to ensure compliance with these new pay transparency requirements by May 15, 2022. To prepare, employers are recommended to:

  • Begin to assess existing policies for determining salaries and make adjustments where appropriate
  • Develop a process by which employers will ensure that published information in connection with internal and external job postings includes required salary information; and
  • Consider an internal audit of current salaries by position as well as exempt/non-exempt classifications.

Gibney will continue to monitor this for guidance updates. For questions, please contact Robert J. Tracy at rjtracy@gibney.com or email info@gibney.com.

January 28, 2022

USCIS to Continue Electronic Registration for FY 2023 H-1B Cap Season from March 1 – 18

USCIS formally confirmed that it will continue using its electronic registration process for fiscal year (FY) 2023 H-1B cap season. The registration period will run from March 1 through March 18, 2022.

H-1B CAP FY ‘23 REGISTRATION DETAILS

  • Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
  • There is a $10 fee for each registrant.
  • If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2023 H-1B cap.
  • The Department of Homeland Security recently withdrew a final rule that would have made the registration selection wage-based. Thus, as in previous years, there will be a random selection process once the initial registration period closes on March 18.
  • After the first round of selection, Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start no later than April 1, 2022.
  • Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.
  • If by the end of the first filing window USCIS has not received enough petitions to reach the annual quota, they may designate subsequent filing windows until all the visa numbers are allocated.

REGISTRATION HIGHLIGHTS

  • In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
  • Employers may register multiple individuals at once, using a single online “batch” submission.
  • An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
  • The registration may be prepared and submitted by the employer’s authorized representative.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:

  • New hires from overseas.
  • F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training.
  • Some L-1 visa holders.
  • TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year.
  • H-4 dependent EAD holders.

BACKGROUND

H-1B Categories and Annual Quotas

H-1B petitions generally fall within two categories:

  • “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
  • Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

H-1B CAP FY ’22 Numbers

  • USCIS received 308,613 H-1B CAP registrations.
  • Approximately 48% of registrations were submitted under the advanced degree cap.
  • Over 37,000 U.S. employers submitted an H-1B CAP Registration on behalf of their employees.
  • USCIS conducted three round of selections (in April, August and November) in an effort to reach the annual quota.

H-1B PETITIONS NOT SUBJECT TO THE CAP

As a reminder, certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.

USCIS will publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available.

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

January 26, 2022

Automated IP Enforcement: Moving Towards Better Results

Last year in our article “What Will Post Pandemic IP Enforcement Look Like,” we looked at the future of enforcement and what strategies may emerge and take root post-pandemic. As it appears we are moving to an endemic stage, it may be a good time to revisit some key ideas.

Over the course of the last two decades, online brand protection has changed tremendously. I recall the days when we received monthly reports of violative goods on a single platform on which we then took action. Today, we monitor a multitude of platforms on a daily basis for a variety of clients. At various times, our clients have asked us to utilize specialized software or services to assist in the effort. We have had the opportunity to sample the full gamut of providers.

As these monitoring services have improved over the years, they have performed better. However, even with various iterations and implementations of artificial intelligence, none we have utilized are able to fully meet the enforcement challenge. Absent the presence of human intervention, the net cast is often too broad and cannot fully discern the subtleties of identification. Previously, we discussed the importance of data. However, if the volume or content of that data impedes the enforcement process, additional steps must be taken.

I am all for automating as much of the process as possible with the caveat that the results are able to be acted upon immediately and not encumber the takedowns. Unfortunately, a fully automated process seems to routinely produce many false positives. Our experience is that trained personnel are needed to cull the results and better identify actionable content. This is done to avoid possibly costly mistakes by removing genuine or even unrelated product.  While technology and the data it can produce represent a significant step forward in the battle against counterfeit goods, do not underestimate the need for a review process that ultimately helps the software perform better. That review process may also help a brand better define the scope of the problem. If initial results appear to indicate 10,000 violative items on a platform, further review may reveal the number is actually in the low hundreds.

Working with your software provider and highlighting the issues you may be having certainly does have an impact.  Algorithms can be changed and parameters altered to create a better and more refined user experience. Many of the software vendors will work closely with you to understand the issues and implement necessary changes. Again, it is up to the brand representative to monitor and provide ongoing feedback. Each brand has different needs and strategies that cannot be accommodated by one size fits all products. Luckily, we have reached a point where suggestions and considerations can be incorporated quickly in pulling actionable results.

In the end, the data and utility of the correct (for your brand) enforcement platform can act as force multipliers for your efforts which may have been impacted by headcount or budget reductions. However, be an active user, willing to review and push for the best results. Technology is only as good as your knowledge and insight can push it to be.

January 24, 2022

Biden Administration Announces Expansion of Immigration Policies to Benefit STEM Students, Scholars and Researchers

The Biden-Harris Administration announced an expansion of immigration policies to benefit Science, Technology, Engineering, and Mathematics (STEM) degree students and graduates, in a stated effort to strengthen the U.S. economy and competitiveness. The new policies affect the F-1 student, J-1 exchange visitor, and O-1 extraordinary ability nonimmigrant visa categories, as well as the EB-2 National Interest Waiver immigrant visa category.

F-1 STUDENTS

F-1 students are typically eligible for up to one year of post-graduate Optional Practical Training (OPT), which allows the F-1 student to gain practical work experience related to their degree.  F-1 students who graduate with a STEM degree are eligible for an additional two years of OPT (STEM OPT). The Biden-Harris Administration has now expanded the list of academic fields that qualify as STEM degrees with 22 new fields of study added, and thus, a greater number of F-1 students will be eligible for STEM OPT.

J-1 EXCHANGE VISITORS

  • New initiative for J-1 scholars, specialists, students, interns, trainees, teachers, and professors: The Biden-Harris Administration announced its Early Career STEM Research Initiative, in partnership with BridgeUSA to facilitate the matching of organizations with STEM Exchange Visitors. The initiative aims to increase the number of STEM-focused educational and cultural exchanges.
  • Extension of academic training for J-1 students: J-1 undergraduate and pre-doctoral students are a typically eligible for up to 18 months of post-graduate academic training, which allows the J-1 student to gain practical experience related to their degree.  The Biden-Harris Administration announced it will now allow academic sponsors to request STEM-related academic training for up to 36 months for college and university students pursuing STEM undergraduate or pre-doctoral degrees and recent graduates who seek to commence academic training no later than 30 days after completion of their STEM-related studies. The extension of academic training applies to the current (2021-22) and subsequent (2022-23) academic years.

O-1 EXTRAORDINARY ABILITY

USCIS updated its Policy Manual to clarify eligibility determinations and provide examples of evidence that petitioners may submit on behalf of foreign nationals seeking O-1 extraordinary ability visa classification.  The policy update:

  • Expands the circumstances in which petitioners may submit comparable evidence to the listed regulatory criteria, and allows adjudicating officers to consider any potentially relevant evidence in making the final adjudication. Examples include: journal impact factors, total rate of citations relative to others in the field, research experience with leading institutions, and unsolicited invitations for the beneficiary to present at nationally or internationally recognized conferences.
  • Provides for a broader interpretation of the field of expertise and area of extraordinary ability, allowing adjudicating officers to consider accomplishments in related occupations involving shared knowledge and skillsets.

EB-2 NATIONAL INTEREST WAIVER

In an update to its Policy Manual, USCIS:

  • Provides an overview of the three-prong analysis used to adjudicate requests for a national interest waiver of the job offer and the permanent labor certification requirement – and accompanying test of the labor market.  Although the policy does not change the analysis prongs used in prior adjudications, the expanded overview addresses how officers should review evidence under each prong.
  • Elaborates on specific evidentiary considerations for STEM fields.  Of note, USCIS will consider an advanced degree in a related STEM field, particularly Ph.D., as an “especially positive factor”.
  • Directs officers to recognize the importance of critical and emerging technology fields, including those published by the National Science and Technology Council or the National Security Council.
  • Provides that officers should consider letters from interested US government agencies or federally funded research centers of particular weight for substantiating benefit to the national interest.

WHAT EMPLOYERS AND FOREIGN NATIONALS SHOULD KNOW

The expansion of STEM initiatives across the F-1, J-1, and O-1 visa categories, as well as National Interest Waiver petitions, is a welcome development that provides additional pathways for STEM students and researchers to continue ongoing research efforts in the U.S. As emphasized by the White House, the revisions to the policy manual relating to O-1 and National Interest Waiver petitions are expected to facilitate clarity and predictability in adjudications.

Gibney will continue to provide updates on these new changes. For questions, please contact your Gibney representative, or email info@gibney.com.

January 18, 2022

Plan Now for H-1B Cap Registration FY 2023

USCIS is expected to continue using its electronic registration process for fiscal year (FY) 2023 H-1B cap season. The registration period will run in March 2022 for a minimum of 14 calendar days.

H-1B CAP FY ‘23 Registration Overview

  • Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
  • There is a $10 fee for each registrant.
  • If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2023 H-1B cap.
  • The Department of Homeland Security recently withdrew a final rule that would have made the registration selection wage-based. Thus, as in previous years, there will be a random selection process once the initial registration period closes in March.
  • After the first round of selection, Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start no later than April 1, 2022.
  • Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.
  • If by the end of the first filing window USCIS has not received enough petitions to reach the annual quota, they may designate subsequent filing windows until all the visa numbers are allocated.

Registration Highlights

  • In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
  • Employers may register multiple individuals at once, using a single online “batch” submission.
  • An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
  • The registration may be prepared and submitted by the employer’s authorized representative.

What Should Employers Do Now?

Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:

  • New hires from overseas.
  • F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training.
  • Some L-1 visa holders.
  • TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year.
  • H-4 dependent EAD holders.

Background

H-1B Categories and Annual Quotas

H-1B petitions generally fall within two categories:

  • “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
  • Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

H-1B CAP FY ’22 – Numbers

  • USCIS received 308,613 H-1B CAP registrations.
  • Approximately 48% of registrations were submitted under the advanced degree cap.
  • Over 37,000 U.S. employers submitted an H-1B CAP Registration on behalf of their employees.
  • USCIS conducted three round of selections (in April, August and November) in an effort to reach the annual quota.

H-1B Petitions Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.

USCIS will publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available. For questions, please reach out to your Gibney representative or email info@gibney.com.

January 14, 2022

Supreme Court Strikes Down OSHA’s Covid-19 Vaccination and Testing ETS: What This Means for Employers

On January 13th, the Supreme Court in National Federation of Independent Business v. Department of Labor, invalidated the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-test Emergency Temporary Standard (ETS) for large private employers (employers with 100 or more employees). The January 13 decision throws out the ETS issued by OSHA in November to require large employers to develop, implement, and enforce a COVID-19 vaccination-or-testing policy.

The Decision

In a 6-3 decision, the Supreme Court held that the Occupational Safety and Health Administration overstepped its authority by seeking to impose the vaccine-or-test rule on all U.S. businesses with at least 100 employees. “OSHA has never before imposed such a mandate,” the Court noted. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

The Court ruled that OSHA lacked the authority to impose a vaccine mandate on private employers because the law that created OSHA “empowers the Secretary (of Labor) to set workplace safety standards, not broad public health measures.” The Court refused to uphold the mandate which effectively ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. The Supreme Court held that upholding the OSHA ETS “would significantly expand” OSHA’s authority beyond the limits Congress set.

What this Means for Private Employers

  • While the Supreme Court’s decision invalidated the ETS and narrowed OSHA’s authority, the decision does not limit the right of employers, states, or municipalities, if they so choose, to require employees to be vaccinated against COVID-19 (while giving consideration for proper religious and medical exemptions) or require the unvaccinated to be tested regularly.
  • Employers will now be subject to state and local guidelines and restrictions with respect to COVID-19 protocols in the workplace. Employers with multiple locations may be faced with inconsistent, and potentially contradictory, standards governing worksites in different states and localities.
  • Employers are advised to review their Covid policies in light of the now invalidated OSHA standards to ensure that they are compliant with state and local laws applicable to the locations where they operate.

What this Means for Health Care Employers

  • On the same day that the Supreme Court struck down the OSHA ETS applicable to all large employers, it upheld the vaccine mandate applicable to health care employers who receive federal payments from either Medicare or Medicaid.
  • In a 5-4 decision, the Court in Biden v. Missouri held that the vaccine mandate for health care workers was justified by the spending clause of the Constitution, which allows the federal government to impose conditions when it provides funding for programs like Medicaid and Medicare.
  • Health care provider employers that receive any Medicare or Medicaid payments will need to comply with the federal vaccine mandate for health care workers.
As always, we encourage employers to consult with counsel with their specific questions and concerns related to compliance with federal, state and local statutes and regulations related to Covid-19. For employment-related questions, please contact Robert J. Tracy, contact your Gibney representative or email info@gibn