On September 7, 2022, the Environmental Protection Agency (EPA) announced that it is adding the southern 19 miles of the Hackensack River in Bergen and Hudson counties to the Superfund National Priorities List (NPL). “Superfund” designation is reserved for the most heavily polluted sites across the country. 

EPA will now conduct additional testing to determine the extent of the contamination and will move forward to identify “potentially responsible parties” (PRPs) who contributed to the contamination of the river.  PRPs will include current owners and operators of a contributing facility, parties that owned or operated a contributing facility at the time hazardous substances were disposed of, persons who arranged for treatment or disposal of hazardous substances, and transporters of hazardous substances who brought hazardous substances to the site.

​Once PRPs are identified they will be held responsible for costs associated with the remediation of the contamination, which may total several hundred million dollars. Businesses and persons who may be encompassed within the PRP categories with respect to the lower Hackensack River should work now to fully understand the Superfund process, assess their potential liability, and prepare to communicate with EPA on a going forward basis.  

By ​Daniel T. McKillop [email protected]

​The food and drug industry in the United States is highly-competitive, housing talent from within the country and abroad. Businesses in these industries should be aware of the different visa options available for hiring foreign talent in order to stay on top in an otherwise highly competitive market. Thus, here’s an overview of potential visa options and immigration strategies for those in the food and drug industries.

Categories of Employment-Based Non-Immigrant (Temporary) Visas

H-1B Visa – Specialty Occupation

The H-1B visa classification is designated for what is considered specialty occupations. These occupations should, therefore, require the following:

● Theoretical and practical application of a range of highly-specialized knowledge

● A minimum requirement of a bachelor’s degree or higher in the respective specialty (or its equivalent in terms of work experience)

This visa classification is also the most common among businesses hiring foreign talent.
Employers for this category must also show that they are offering the prevailing wage for this specific occupation in their localized market.

Examples of positions that qualify for the H-1B visa classification are listed below.

● Engineers in a variety of fields
● Supply chain professionals
● Food and drug scientists and researchers
● Veterinarians

There is an annual limit for professionals entering the country with H-1B visas. The cap is at 65,000 visas for individual with a bachelors or its equivalent and 20,000 more visas for talent with a master’s degree or higher from a university in the United States. Thus, the total cap is 85,000.

Professionals working with an H-1B visa can switch employers while still in the US. For that, the new employer must file the H-1B petition on the employee’s behalf. Moreover, the employer must also update the petition with any changes in occupation, demonstrating that it is offering the prevailing wages for that occupation. The employer must make this amendment before the employee switches occupations.

H-1B1 – Category for Professionals from Chile and Singapore
Citizens from Singapore and Chile who otherwise qualify for an H-1B visa can seek H-1B1 status. Thus, this visa category is a specialty occupation category for candidates from Chile and Singapore.

E-3 – Category for Professionals from Australia
Australian citizens who otherwise qualify for an H-1B visa can seek E-3 status. Thus, this visa category is a specialty occupation category for candidates from Australia.

TN – Category for Professionals from Mexico and Canada
The TN is a visa category specifically for citizens of Mexico and Canada that currently work in specific professional occupational categories that allow for United States work authorization.

The most common examples of TN category occupations in the case of the food and drug industry include the following. Note that this is not an exhaustive list.

● Biologist
● Dairy scientist
● Veterinarian
● Animal breeder
● Poultry scientist
● Horticulturist
● Plant breeder
● Soil scientist
● Scientific technician/technologist
● Engineer

In addition to being a citizen of Mexico or Canada, applicants must also have the following qualifications to qualify for a TN work visa.

● Be offered a job from a US employer
● Hold a baccalaureate or licenciatura (bachelor’s) degree in the field relevant to the occupation. A state/provincial license, which is a document issued by a state, provincial or federal government that allows a professional to engage in a regulated profession or activity, is also acceptable. However, a license by a local government is not accepted.

L-1 Visa – Intracompany Transfer
This category is for individuals either in a managerial/executive or in a specialized knowledge capacity who have been working abroad for 12 months or more in the last three years to come to the United States to work for an affiliate, parent, subsidiary or branch office in the same capacity as mentioned above.

F-1 – International Students
Individuals with F-1 student visas may work in limited capacities. Thus, they can work in Optional Practical Training (OPT) for a year after graduating from university. The work must be related closely to their field of study to qualify for OPT. However, STEM field students can extend this period by 24 months.

B-1 Visa – Business Visitors
The B-1 visa is for foreign professionals to visit the US just for temporary business within a specific, limited time frame. The maximum period is one year which may be extended depending upon the needs if the foreign business.

Process of Acquiring Permanent Residency (Green Card)
All visa categories above allow employers to hire foreign professionals for limited periods. However, employers that want to retain foreign employees for longer periods than available with the nonimmigrant visa categories above can sponsor individuals for permanent residency (LPR or green card). With a LPR status, foreign employees can stay and work in the US permanently.

Acquiring LPR takes years, and it is longer for Chinese and Indian citizens. In addition to this time frame, employers should also note that some visa categories (such as TN and H-1B1) are not easily transferred into cases for LPR. Thus, it’s better to switch the visa category to a better platform for this purpose. The H-1B visa category is the very best option.

Typically, the LPR process has 3 steps, which are listed below.

1. PERM labor certification with the U.S. Department of Labor (DOL)
2. Petition for I-140 immigrant visa with the U.S. Citizenship and Immigration Services (USCIS)
3. Application for I-485 adjustment of status with the USCIS or Consular Process with the Bureau of consular Affairs at a U.S. Consular Office Abroad.
Hiring, Work Authorization, and I-9 Compliance
According to the Immigrant and Employee Rights (IER) section of the Department of Justice (DOJ), employers are permitted to ask candidates only the two questions listed below during an interview or even during the job application.

● Are you legally permitted to work in the United States?
● Will you require sponsorship for employment visa status now or in the future (e.g., H-1B visa status)?

After hiring a foreign employee, the US employer must complete and retain a Form I-9 to confirm the identity of and work authorization of every employee that was hired after November 6, 1986. This was made part of the law under The Immigration Reform and Control Act of 1986.

There are 3 obligations that US employers have when completing Form I-9 all for its employees, irrespective of whether they are foreign or from the US:

● Confirming that the I-9 is completed thoroughly and accurately, with the employee adequately and timely completing Section 1.
● Ensure that all documents presented by the employee are related to that employee only.
● Ensure that every document looks reasonably genuine on its face.

If you have any questions about how the immigration and nationality laws in the United States may impact you or your family members or if you want to access additional information about the United States or Canadian immigration and nationality laws, please feel free to get in touch with the immigration and nationality lawyers at NPZ Law Group. You can send us an email at [email protected] or you can call us at 201-670-0006 extension 104. In addition, we invite you to find more information on our website at www.visaserve.com

FLEXIBLE PACKAGING HAS a target on its back. Shortsighted elimination policies for flexible packaging—and all packaging, in general—will not solve the problem and, in many cases, will result in more environmental harm. The Ellen MacArthur Foundation’s (EMF) report, “Flexible packaging: The urgent actions needed to deliver circular economy solutions,” has come to many of the same conclusions that the Flexible Packaging Association (FPA) has been touting for years. While some packaging—plastic or otherwise—can be eliminated or reduced, most packaging plays the vitally important role of protecting and preserving the efficacy of products and eliminating food waste. Thus, short-term solutions, such as bans, will not solve the problem. Only long-term investment in circular systems will. This means a commitment to circular design and a modern U.S. recycling and composting system.
​
In the EMF’s report, its first line of defense is directly eliminating single-use flexible packaging. However, it estimates that only 5% to 10% of flexible packaging’s portfolio can actually be considered necessary. And it states that “it is currently not possible to completely move away from single-use flexible packaging without negative unintended consequences.” FPA and its members know that this includes increased greenhouse gas (GHG) emissions from the manufacturing and transport of alternative packaging types, as well as increased food waste, and increased water and energy usage. It also increases waste of both the packaging and product through damage and loss. The Oregon Department of Environmental Quality reports that the average carbon footprint of food production alone is over 75% when compared with processing and packaging, which often has the smallest footprint. And if food aste was a country, it would be the third-largest contributor to GHG emissions after the U.S. and China.

Simply put, while other packaging types may be more readily accepted at recycling centers, they offer fewer protections for consumer products, especially food, while ultimately being more expensive and less sustainable to produce. For example, the recycling rate for a steel coffee can would need to increase from 71%—one of the highest packaging recycling rates—to 93%, and the plastic lid recycling rate needs to increase from 21% to 75% before the coffee packaging would have less landfilled material as a stand-up flexible coffee pouch. This is in addition to the increase in water usage to manufacture a steel can (16 times as much), fossil fuel usage (453%), and GHG emission increases (7 times as much). Simply eliminating flexible packaging in favor of other packaging formats not only doesn’t solve the packaging pollution problem, it actually creates others.

Flexible packaging creates “less waste in the first place®”, uses fewer virgin resources, and creates less GHG emissions. Even the EMF agrees that much of it can’t and shouldn’t be eliminated. So, what do we do with the rest?

Again, FPA agrees with the EMF—the answer is unprecedented eff orts to scale recycling systems. Recycling does work, but in the U.S., our system is decades old, and for far too long it relied solely on a failed policy of exports, particularly plastic exports, instead of investment in domestic infrastructure. FPA supports well-crafted extended producer responsibility (EPR), as does the EMF, to subsidize that investment and create sustainable funding for a dynamic recycling system that includes advanced recycling technologies for both mechanical and chemical.

Let’s admit what the EMF report states for the U.S.: While we have low levels of mismanaged waste in comparison with other geographies, we also have a less advanced waste management system overall.

FPA members invested millions in transitioning to mono-material and other readily recyclable flexibles, as well as compostable structures. And, even where flexible plastic has been substituted with flexible paper, the EMF correctly points out that unprecedented efforts are still needed for paper recycling systems. Thus, mere substitution to paper or compostable structures is not the answer.

The current U.S. recycling and composting systems today will not support flexibles, regardless of the makeup. We need to continue to move toward improvements in packaging design and better barrier protection to create more readily recyclable flexible packaging without increasing product loss and food waste. But we need to do so in tandem with collection and circularity systems, or these eff orts will be stranded. 

Oregon, one of the first states to pass an EPR bill in the U.S., is currently in the regulatory phase of implementation. One of the first things the state is attempting to do is bring some harmonization to the myriad of local recycling programs it has in the state.
Oregon’s preliminary recommendations would be to include mono-material flexible plastic packaging on its statewide recycling list. This is a good start, as it will mandate that EPR funding goes toward establishing a robust collection system for all Oregon residents, processing, and viable end markets for a large segment of flexible packaging.

It is this type of policy that FPA and the EMF can agree will trigger the right approach to creating circularity for flexibles. If this is done in other states, it can create the market dynamic necessary to mitigate packaging pollution, spur investment in recycling and composting systems, and create the supply demand for post-consumer recycled material in this sector.
Other states off er clear examples of poor policy that will not advance either access to or add more packaging materials to circularity. That would include Maine, where the EPR program is simply a tax that will merely pay for the status quo, and California’s proposed ban on plastic e-commerce packaging, the majority of which is recyclable today.

Instead, more packaging will continue to go to landfills and is more likely to leak into the environment. FPA may not always agree with the EMF, but in this case, let’s agree that where we can use more sustainable packaging types, we do so. But for the 90% of flexible packaging that cannot be eliminated without unintended consequences, investment in recycling and composting infrastructure is the key to eliminating packaging pollution.
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Note: This article was originally published in the September/October 2022 issue of the packaging industry publication Flex Packaging VOICE.  Alison Keane, Esq., IOM, CAE, is president and CEO of the Flexible Packaging Association. Special thanks to CIANJ member Madeleine Robinson, CEO, LPS Industries, for supplying us with this information.