June 13, 2022

U.S. Lifts Covid Testing Requirement for International Travelers

International travelers to the U.S. are no longer required to provide proof of a negative COVID-19 test prior to boarding a flight to the U.S. The change took effect at 12:01 AM ET on Sunday, June 12, 2022. The Centers for Disease Control and Prevention (CDC) will reassess the decision to eliminate the testing requirement in 90 days and may reinstate a testing requirement if a new variant of concern emerges. Non-U.S. citizens are still required to be vaccinated against COVID-19 to enter the country, with limited exceptions.

Under the prior policy, all international air travelers were required to take a COVID-19 test, regardless of vaccination status or citizenship, no more than 1 day before travel into the U.S. and show a negative result to the airline before boarding their flight or proof of recovery from the virus within the last 90 days. Individuals entering the U.S. from Canada or Mexico  through land border crossings were not subject to the testing requirement.

Elimination of the testing requirement is a welcome development for the tourism industry as well as  business travelers who may now travel without the suspense of being stranded abroad due to testing availability and outcomes.

Further details regarding CDC travel guidance and testing requirements are available here. Due to frequently changing country conditions and global entry requirements, all travelers should check with airlines and  investigate restrictions imposed by their destination country when making travel plans and immediately prior to departure.

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

June 1, 2022

USCIS Expands Premium Processing Services

U.S. Citizenship and Immigration Services (USCIS) has started to offer premium processing service for certain long-pending, employment-based permanent resident petitions. Consistent with its previous announcement, USCIS is taking an incremental approach to expanding premium processing service, as follows:

  • Effective June 1, 2022, premium processing service is 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, 2021.
  • Effective July 1, 2022, premium processing service will be available for I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification) with receipt dates on or before June 1, 2021.
  • Effective July 1, 2022, premium processing service will be available for I-140 petitions for multinational managers and executives (EB-1(3)) with receipt dates on or before March 1, 2021.

Petitioners may interfile a request for premium processing service for covered petitions by filing Form I-907, Request for Premium Processing Service in accordance with the timelines above, and paying a supplemental fee of $2,500.00 . USCIS will have 45 days from receipt of the premium processing request and fee to adjudicate the petition.

USCIS will continue to expand premium processing service to other benefits in the months and years ahead. As previously reported, USCIS is expected to introduce premium processing service for Form I-539, Applications to Extend/Change Nonimmigrant status for F, J and M nonimmigrants and I-765, Applications for Employment Authorization Documents, for F-1 Optional Practical Training and Exchange Visitors before September 30, 2022.

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.

May 11, 2022

USCIS Extends EAD Auto-Extension Period

USCIS has implemented a temporary final rule to automatically extend the validity of certain expired or expiring Employment Authorization Documents (EADs) for up to 540 days. Previously USCIS permitted a 180-day auto-extension for certain EAD renewals.

The temporary policy is effective May 4, 2022 to October 26, 2023, after which USCIS expects to revert back to the 180-day period.  The measure comes as USCIS struggles to eliminate its historic case backlogs and processing delays.

Who Benefits?

The rule permits applicants who have a pending I-765 EAD renewal application in a category that is eligible for automatic extension to have their EAD validity period extended for up to 540 days beyond the current EAD expiration date.

Key Considerations

  • The automatic extension will end 540 days after the current EAD expiry date, or when USCIS issues a decision on the EAD renewal application, whichever is sooner.
  • If the initial 180-day auto-extension period has lapsed, but less than 540 days have passed since the EAD expiration date, applicants in the eligible categories may resume working while the renewal application remains pending for up to 540 days from the EAD expiry date.
  • The 540-day extension period applies to EAD renewal applications filed before and after enactment of the May 4, 2022 rule.
    • I-797C Receipt Notices for EAD renewal applications issued after May 4, 2022 will reference the 540-day automatic extension and may be presented together with a valid Form I-94 and expired EAD as proof of employment eligibility.
    • I-797C Receipt Notices issued prior to May 4, 2022 reference a 180-day automatic extension but nonetheless may be used as evidence of employment authorization for the 540-day period, together with an unexpired I-94 and expired EAD.
    • Individuals relying on the auto-extension period for continued employment authorization should refer to USCIS’s Automatic EAD Extension page to review the documents that should be presented for employment eligibility verification.
  • Reminder: Spouses of E, H, and L nonimmigrants relying on the EAD renewal auto-extension provisions MUST have an unexpired I-94 document to benefit from the auto-extension provision. Spouses of E and L nonimmigrants who have an I-94 with the “S” annotation on the admission classification (E-1S, E-2S, E-3S and L-2S) do not require an EAD for employment authorization during the I-94 validity period.

The expansion of the auto-extension period from 180 to 540 days is welcome news to noncitizens who have lost work authorization due to egregious USCIS processing delays and the U.S. employers who have experienced workforce and business disruption as a consequence.   We  look forward to other USCIS initiatives to improve access to immigration benefits by  reducing case processing times, expanding electronic filing to additional applications, and promoting the fair and efficient adjudication of all applications.

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

 

 

 

 

 

May 5, 2022

New York Salary Transparency Law Amended and Delayed Until November 2022

On April 28, 2022, the New York City Council amended the New York City Salary Range Transparency Act. As a result of the amendment, the effective date will be moved from May 15, 2022 to November 1, 2022. The amendment is expected to be signed into law by Mayor Adams.

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 posted transfers within a company. The new law was set to go into effect on May 15, 2022. However, following the City Council’s passage of an amendment to the law, the effective date will now be November 1, 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 amendment revises the salary transparency law in the following ways:

  • Reinforces a limited exception to the requirements for positions that cannot or will not be performed, at least in part, in New York City. In other words, the requirement does not apply to locations outside of New York City including fully remote positions.
  • Clarifies that the language of the provision, specifically that the “minimum and maximum salary” in all job postings is the minimum and maximum annual salary or hourly wage for the advertised position, clarifying that the law covers hourly workers as well as salaried workers.
  • Creates a limited private right of action for an employee. The amendment states: “[E]mployee may bring such an action against their current employer for an alleged violation of this subdivision in relation to an advertisement by their employer for a job, promotion or transfer opportunity with such employer.”

Finally, under the amendment, monetary penalties will not be issued for an initial violation if the violation is cured (with proof that the violation was cured) within 30 days of service of the complaint.

What this Means for Employers

All New York City employers now have until November 1, 2022 to ensure compliance with the new pay transparency requirements. To prepare, employers are recommend to:

  • Begin to assess existing policies for determining salaries and make adjustments where appropriate
  • Develop a process to 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.

It is anticipated that the New York City Commission on Human Rights will issued updated guidance in the coming months. Gibney will continue to monitor this for guidance updates.

April 21, 2022

New Electronic Monitoring Requirements for New York Employers Starting May 7

Effective May 7, 2022, employers in New York State will need to provide written notice to new hires where the employer “monitors or otherwise intercepts [employee] telephone conversations or transmissions, electronic mail or transmissions, or internet” using “any electronic device or system.” The new state law applies to any private individual or entity with a place of business in the State of New York.

Any employer that electronically monitors telephones, emails, and/or internet usage must give prior written notice of that monitoring to all new employees and obtain a written acknowledgment in writing (which may be in electronic form). The notice must advise the employees that all telephone calls, emails, or internet access or usage may be subject to monitoring at any and all times and by any lawful means. With respect to existing employees, employers do not have to provide individual written notices or obtain written acknowledgments of the notices. However, New York employers must post such a notice in a “conspicuous place” readily available for viewing by employees subject to electronic monitoring.

The new law does not apply to processes designated to manage the volume or type of transmissions or performed solely for purposes of system maintenance or cybersecurity protection.

The New York State Office of the Attorney General has the authority to enforce the law. The law provides for the imposition of civil penalties, for violations of its requirements. Employers found to be in violation of the law are subject to civil penalties ranging from up to $500 for a first offense, $1,000 for a second offense, $3,000 for a third offense and for each subsequent offense. Significantly, there is no private right of action for affected individuals.

How Employers Can Prepare

To avoid civil penalties, New York employers should prepare for the law by taking the following steps:

  1. Review their electronic monitoring practices and update their employee handbooks and employee-facing website portals to ensure that they are providing adequate notice of such monitoring under the new law.
  2. Prepare an employee acknowledgment of electronic monitoring form to be included in onboarding documents for new employees.
  3. Prepare a notice and post it in a conspicuous place readily available for viewing by employees. Employers may elect to post the notice on their intranet site, employee handbook, and/or physically post it in the workplace. Employers also may wish to place the notice on the login page of the employer’s computer network.
April 6, 2022

USCIS to Expand Premium Processing Offerings

The Department of Homeland Security has published a final rule to expand premium processing service to expand premium processing service for certain immigration benefit requests.  The rule takes effect May 31, 2022.

What is Premium Processing?

Premium processing service currently allows employers to request expedited processing for certain immigration petitions if the employer pays a premium fee in addition to the base petition filing fee.  Premium processing is currently available for employers requesting a limited number of designated classifications when filing Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker.

What does the New Rule Do?

Pursuant to the rule, USCIS intends to make premium processing available for additional benefits as part of a 10-year phased-in implementation strategy.

According to the rule’s preamble, USCIS expects to implement premium processing for the following categories in FY 2022 (i.e., before September 30, 2022):

USCIS Form Classification/
Category		 Expected Premium Processing Fee Expected Processing
Time
I-140,
Immigrant
Petition
for
Immigrant
Worker		 Expands eligibility
to preference classifications for Multinational Executives and Managers (EB-1)
and National Interest Waivers (EB-2).		 $2,500.00 45 days
I-539,
Application to Extend/Change Nonimmigrant
Status		 Individuals requesting
F-1, F-2, J-1, J-2,
M-1, and M-2 classification. Expansion to additional categories of E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 expected by FY 2025.		 $1,750.00 30 days
I-765
Application for Employment Authorization Document (EAD)		 Requests for EADs for F-1, Optional Practical Training, and Exchange Visitors. Expansion to additional categories expected by FY 2025. $1,500.00 30 days

USCIS will announce on its website which applications and petitions are eligible for premium processing, and the conditions that will apply.  Fees may be adjusted on a biennial basis without notice and comment rulemaking.

Background

Publication of this rule comes at a time when USCIS is under growing criticism for its untenable adjudication delays. The agency has millions of applications pending in processing backlogs, many stemming from Trump-era policies designed to stymie immigration.

Before USCIS can further expand premium processing, it must raise sufficient funds to ensure that it has the staffing and IT resources to avoid increasing non-premium processing related processing times.  Hence the phase-in approach to premium processing expansion.  At the same time, expanding premium processing, even on an incremental basis, will serve as an additional revenue stream for the agency, helping it to add resources and implement efficiencies to eliminate backlogs.

USCIS also announced other initiatives aimed at providing relief, including setting revised processing timelines (essentially aspirational targets) for certain benefits and expanding automatic extensions for EADs when a renewal application is filed.

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.

March 29, 2022

FY 2023 H-1B Initial Selection Process Completed

Today USCIS announced that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2023 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 1, 2022 through March 18, 2022 . H-1B petitions may be filed for selected registrations starting April 1, 2022.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

  • Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If petitions are not filed for selected beneficiaries with the designated 90-day filing window, USCIS may conduct another lottery from the reserve “submitted’ registrations until the FY 2023 cap is reached. This was the case last year, when numerous “submitted” registrations were later selected for a second and third round of filings, after the initial 90-day filing period concluded.
  • Selected: Indicates that the employer may file an FY 2023 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
  • Denied: A duplicate registration was submitted by the same registrant for the same beneficiary; all registrations submitted for this beneficiary for FY 2023 are invalid. There are reports that USCIS has erroneously denied some registrations as duplicate submissions. If you receive such a denial, closely check your submission records to verify whether there were, in fact, duplicate submissions.
  • Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2023 and only for the beneficiary in the applicable selected registration notice. Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2022. All petitions must be filed with the correct USCIS service center and within the filing period indicated on the selection notice.

Gibney will continue to monitor the FY 2023 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information, please contact your Gibney representative or email info@gibney.com.

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.