Written By:
Kenneth L. Moskowitz, Esq.
Co-Founder and Partner
Brown Moskowitz & Kallen, P.C. 

While the pressure to make deals or “book” work is certainly understandable, especially in the wake of the Covid-19 crisis and the on-going recovery, business owners and senior managers would be wise to resist the temptation to complete potentially problematic deals and, instead, should remain faithful to fundamental contracting principles.
 
As a threshold matter, contracting parties must be careful to complete all of the diligence necessary to ensure that the proposed “business deal” makes economic sense.  As every business owner well knows, there simply is no substitute for such investigations, and shortcuts often lead to poor and regrettable deals or contracts.  
 
Once being satisfied that a deal makes economic sense, contracting parties should take the time and maintain the discipline necessary to ensure that the deal made in principle is documented accurately, and that all of the material terms and conditions are clearly stated in the contract.  Among other things, the contract must include a precise description of the subject goods, services and/or deliverables, as well as the schedule for such performance and for receipt of the required payments.  Depending on the circumstances, the inclusion of an attorneys’ fee/cost of collection term, arbitration and/or choice of forum provisions may be prudent, if not necessary.  Again, as business owners and their contract agents know, even what may appear to be a “good deal,” if not properly documented, can lead to a disastrous result.
 
Further, contracting parties should not be satisfied that the written agreement “more or less” memorializes the parties’ agreement, or take for granted that the other party to the contract has the same understanding and/or will faithfully discharge its contract responsibilities unless those duties are clearly and plainly recited.  The hope or notion that once an ambiguous contract is signed the other party will perform as you expect, and/or that the other party can be counted on later to resolve contract ambiguities in good faith and on a fair and equitable terms consistent with your intent at the time of contracting, may not be realistic.  The assumption of such risk -- risk that may have been avoidable -- would be regrettable and certainly could be costly.
 
Finally, while each potential contract negotiation has its own dynamics, fair and equitable contract terms should be negotiated, not dictated by one party.  Even where one party to the contract is recognized to enjoy a superior bargaining position, the other party should resist a “take it or leave it” ultimatum that may leave it exposed.  In that circumstance, the party in the inferior bargaining position should carefully consider pressing for the negotiation of those essential terms that are necessary to make the deal fair to both parties or, at the very least, “chipping away” to make the agreement more palatable.
 
Contract litigation is often the result of some failure in the negotiation and/or documentation of a business deal.  Business litigation is time consuming, expensive and can have the detrimental effect of diverting the parties’ attention from the management and operation of their businesses.  While the potential for litigation cannot be eliminated, completing the requisite diligence and exercising the needed discipline in the negotiation and documentation of the business deal or contract should reduce that risk.
 
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©Copyright 2024, Brown Moskowitz & Kallen, P.C.  All rights reserved.  This article is for informational purposes only and is not intended to constitute, and does not constitute, legal advice.
 
Mr. Moskowitz is a former prosecutor and is a founding partner of Brown Moskowitz & Kallen, P.C., in Chatham, New Jersey.  He represents clients in diverse business disputes, commercial litigation, internal investigations, “corporate divorce” matters, insurance coverage litigation and other business-related disputes. 
 
For further information, please feel free to contact Mr. Moskowitz by email at [email protected], or call him at 973-376-0909.

Written By:
Margarita Echevarria 
Executive Vice President
NJAPM

Access any business report in New Jersey and you will confirm that the engine for productivity, the sale of goods, and employment in the state is small business. However, one of the potential lags on small business productivity is litigation.

At any point in the productive life of a small business, litigation involving a product, an employment situation, or a consumer conflict can arise. Litigation can be costly, not only related to how long it takes the parties to be “trial ready,” but also due to the potential loss of reputation related to publicity of the matters, the loss of business management time while engaged in court proceedings, and finally, the loss of business relationships depending on how caustic the dispute becomes.

One of the ways big businesses insulate themselves from these potentially expensive “drawbacks,” i.e., the publicity, distraction, and cost of legal disputes, is by planning ahead and ensuring that their employment agreements, B2B, and even terms of service agreements with their consumers include arbitration or mediation clauses, or both. The speed, efficiency, confidentiality, cost effectiveness and finality offered by these alternatives to litigation have become a normal facet of doing business today. You may already have legal counsel that helped you set up your business that you can tap to draft the appropriate clause for your contracts or invoices. And you can review, in advance, sample clauses on service provider websites so you may have an informed conversation with your legal counsel.

An important resource to businesses within the state is the NJ Association of Professional Mediators (NJAPM). For the past 30 years, NJAPM has provided the public with information on mediation. NJAPM is also a member of the New Jersey Business & Industry Association. It stands ready to provide webinars with advice on how businesses can protect themselves by adopting alternative dispute resolution (ADR) provisions in contracts and provide a directory of professional mediators, all of whom have met the rigorous credential qualifications of the state to become court approved mediators.
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By anticipating, through mediation, how you will manage the inevitable disputes that will arise in the conduct of your business, you will be able to:

• Select a professional mediator with the experience and expertise needed to assist in the resolution of your dispute.
• Engage in a confidential process that avoids unwanted publicity for your business.
• Avoid the filing of legal documents that are public records to initiate resolution of your dispute.
• Schedule resolution of your dispute, taking into consideration only the calendars of the parties and the mediator in setting your mediation date. (Avoiding court calendar delays).
• Better control your costs, as some will be limited to a mediation process (prep and mediation date).
• Finalize resolution with an enforceable agreement between the parties. 

​
About the Author: Margarita Echevarria, Esq., executive vice president of NJAPM, is an independent arbitrator and mediator in private practice with memberships on the American Arbitration Association: Commercial (LCC) & Insurance panels, ARIAS-US Certified Arbitrator, Resolute Systems, ACAN panel, FINRA and NY & NJ Federal and State Courts Arbitration and Mediation panels.

Written By:
David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Snehal Batra, Esq.
Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

In the intricate world of healthcare, where patient care is paramount, administrative compliance is essential. Among these responsibilities, Form I-9 compliance is critical, ensuring that employees are eligible to work in the United States and supporting the operational integrity of healthcare facilities.

The Critical Nature of I-9 Compliance in Healthcare

Healthcare facilities are under constant pressure to maintain seamless operations, and ensuring Form I-9 compliance is a cornerstone of their legal and operational obligations. Compliance not only prevents legal repercussions but also safeguards the facility from potential staffing disruptions that could affect patient care.

Understanding the Essentials of Form I-9

Form I-9, Employment Eligibility Verification, is a mandatory process for all U.S. employers, and in the context of healthcare, it becomes even more significant due to the high stakes involved. Ensuring that every employee is legally permitted to work is not just about following the law—it’s about protecting patients and maintaining a reliable workforce.

Challenges in Maintaining I-9 Compliance

Healthcare facilities often face unique challenges in maintaining Form I-9 compliance:

• High Turnover Rates: Frequent staffing changes can lead to oversights and inconsistencies.
• Complex Documentation: The nuances of immigration statuses and the verification of documents can be daunting.
• Cyclical Hiring Spurts: The episodic nature of healthcare hiring intensifies the pressure on HR departments to stay compliant amidst a flurry of onboarding activities.

Strategies to Enhance I-9 Compliance

• Implement Robust Training Programs: Equip your HR team with the knowledge and tools they need through ongoing training on the latest I-9 compliance requirements.
• Adopt Electronic I-9 Solutions: Utilize technology to reduce errors and streamline the verification process. Electronic systems offer built-in checks that help ensure forms are completed correctly and stored securely.
• Regular Internal Audits: Conduct periodic reviews of your I-9 processes to catch and correct errors proactively. This preventive measure can save healthcare facilities from costly penalties and legal challenges.

The Role of Technology in Ensuring Compliance

In today’s digital age, leveraging technology such as I-9 compliance software can dramatically simplify the compliance process. These tools assist in managing and verifying large volumes of documents efficiently, ensuring that every employee’s eligibility is accurately recorded and easily accessible for audits.

Conclusion

For healthcare facilities, the stakes of non-compliance with Form I-9 regulations are high, ranging from legal penalties to impacts on patient care. By prioritizing comprehensive compliance strategies and utilizing the right tools, healthcare employers can ensure a compliant, stable workforce dedicated to the highest standards of patient care.

Call to Action

Stay ahead of compliance challenges by partnering with experienced I-9 compliance specialists who can provide the tools and expertise necessary to navigate this complex requirement. Ensure your healthcare facility remains compliant and focused on what matters most—providing exceptional patient care.

Contact Information

If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing [email protected] or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.
 

Written By:
Kenneth A. Rosenberg and Brian J. Frederick
Fox Rothschild LLP

As employers have increasingly used artificial intelligence (AI) and other Automated Employment Decision Tools (AEDTs) to assist human resource professionals and hiring managers in reviewing voluminous resumes, federal and state governmental authorities have become concerned that these tools are disproportionately screening out female and minority applicants.

To address the adverse impact that AI and AEDTs may be causing in violation of federal and state anti-discrimination laws, state and local legislatures across the country have begun enacting and/or proposing legislation and regulations to combat these issues. New Jersey’s Legislature recently introduced a pair of bills in the Assembly to address the potential discriminatory impact the use of such technology may have on prospective job candidates. 

New Jersey Assembly Bill 3854
On February 22, 2024, A. 3854 was introduced in the New Jersey Legislature with the stated purpose of regulating the use of AEDTs during the hiring process to minimize employment discrimination.

AEDTs are defined broadly in A. 3854 to mean “any system the function of which is governed by statistical theory, or systems the parameters of which are defined by systems, including inferential methodologies, linear regression, neural networks, decision trees, random forests, and other learning algorithms, which automatically filter candidates or prospective candidates for hire or for any term, condition, or privilege of employment in a way that establishes a preferred candidate or candidates.” This definition would encompass AI programs used to filter and screen prospective job candidates.

The proposed legislation would prohibit the sale of any AEDTs in New Jersey unless:

1. The AEDT is the subject of a bias audit conducted in the year prior to the sale of the tool or the offering of it for sale.
2. The sale of the AEDT includes, at no additional cost, an annual bias audit service that provides the results of that audit to the purchaser.
3. The AEDT is sold or offered for sale with a notice stating that the AEDT is subject to the provisions of this act.

A “bias audit” is defined as “an impartial evaluation, including but not limited to testing, of an [AEDT] to assess its predicted compliance with the provisions of the ‘Law Against Discrimination,’ P.L.1945, c.169 (C.10:5-1 et seq.), and any other applicable law relating to discrimination in employment.”

In addition to requirements concerning the sale of AEDTs, A. 3854 provides that New Jersey employers who use AEDTs to screen candidates must post a summary of the most recent bias audit on their websites.

Further, the proposed legislation would require any person or entity that uses AEDTs to screen a candidate to notify the candidate of the following within 30 days:

1. That an AEDT, subject to an audit for bias pursuant to this act, was used in connection with the candidate’s candidacy.
2. The specific job qualifications or characteristics that an AEDT was used to assess in the candidate.
3. Upon request of the candidate, the source of the data collected and the data retention policy of the employer.

Violations are punishable by civil penalties of $500 for the first violation, and each additional violation occurring on that same day, and a penalty of between $500 and $1,500 for each subsequent violation. Failure to give the required notice to job candidates within 30 days would be a violation, and every subsequent 30-day period in which notice was not provided would be considered a separate violation.

Although Assembly Bill 3854 covers a number of topics relating to employers’ use of AEDTs, there are some significant unknowns including whether, and under what circumstances, the underlying bias audit will be subject to full disclosure and who may perform the required bias audit.

However, if New Jersey follows NYC’s recently enacted Local Law 144 (which already requires bias audits of AEDTs), then employers will be required to use independent auditors to perform the audit. Under NYC Local Law 144, independent auditors are persons or groups who (i) were not involved in the use, development or distribution of the AEDT, (ii) do not have an employment relationship with the employer or employment agency that seeks to use the AEDT, or the vendor who developed or distributed the AEDT, and (iii) do not have a direct financial interest, or material indirect interest, in the employer, employment agency or vendor.

Regardless of the parameters of permissible auditors, it would be prudent for employers, and vendors alike, to consult with attorneys who are experienced with adverse impact studies to assist in developing, conducting and summarizing the results of the bias audit. This is particularly important to enable employers and vendors to not only obtain their insight regarding relevant state and federal anti-discrimination laws, but also to potentially obtain confidentiality of the bias audit process through the attorney-client privilege.

New Jersey Assembly Bill 3911
A. 3911 was introduced on February 27, 2024. It seeks to regulate the use of AI analysis of job applicants’ recorded video interviews that are submitted to employers. Pursuant to the proposed legislation, New Jersey employers that request applicants to record video interviews and then use an AI program to analyze the applicant-submitted video must:

1. Notify an applicant before the interview that AI may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position.
2. Provide an applicant with information before the interview explaining how the AI works and what general types of characteristics it uses to evaluate applicants.
3. Obtain, before the interview, written consent, which may be electronic, from the applicant to be evaluated by the AI program as described in the information provided.

An employer must take these steps prior to requesting the applicant submit a video interview.
Significantly, the proposed legislation provides that New Jersey employers who use AI analysis of recorded video interviews must collect data concerning (i) the race and ethnicity of applicants who are and are not afforded the opportunity for an in-person interview after the use of AI analysis; and (ii) the race and ethnicity of applicants who are offered a position or hired.

However, the proposed legislation does not provide the manner or method in which this demographic information is to be collected from applicants. Ideally, this required information would be collected from the applicant prior to the recorded video interview via voluntary self-identification, otherwise employers will have to use less accurate methods such as visual identification.

The collected demographic data must then be reported annually by the employer to the New Jersey Department of Labor and Workforce Development (NJ DOL). The NJ DOL would be responsible for analyzing the demographic data and reporting to the Governor and the Legislature each year whether the data discloses a racial bias in the use of AI.
If the law passes, employers should perform a disparate impact analysis of the data gathered prior to submission to the DOL to enable them to determine whether adverse impact exists, and, if so, what steps can be taken to remediate any biases during the hiring process. As with the bias audit requirement proposed by A. 3854, employers should consult with experienced attorneys before conducting the disparate impact analysis. They can assist in conducting the review and potentially shield it through the attorney-client privilege.

Under the proposed legislation, employers who request applicants to submit video recorded interviews would not be permitted to share an applicant’s video except with a service provider whose expertise or technology is necessary to evaluate the applicant’s fitness for a position. Further, upon receipt of a request from an applicant to delete the video recorded interview, employers would have 30 days to comply and instruct any other persons who received copies of the applicant’s video interview to do the same. This could be problematic for reporting purposes if the demographic data is not collected in advance. Moreover, it is unclear if the video recorded interview data could be used to evaluate the candidate if they provide their consent and later request the video be deleted.

Violations of the act would carry civil penalties of $500 for a first offense and $1,000 for any subsequent offense.

Takeaways
The foregoing legislation has merely been proposed by the New Jersey State Legislature at this time. Still, employers who use, or are contemplating using, AEDTs in their hiring process should be mindful of the pending legislation and contemplate procedures and policies for compliance should it be enacted. Regardless of whether either bill is enacted, it is likely that New Jersey will at some point in the not too distant future follow the lead of other jurisdictions, such as Illinois and New York City, and enact laws aimed at regulating employers’ use of AEDTs in the hiring and/or employment decision making process. Other states including, Vermont, California, and Massachusetts, have similarly proposed laws to address the use of AEDTs.
​
Employers should be prepared for this reality and take steps to affirmatively ensure any AEDTs currently in use are not having a discriminatory impact on any protected class in violation of state or federal laws.
For more information, please contact Kenneth A. Rosenberg at [email protected] or 973-994-7510, Brian J. Frederick at [email protected] or 973-548-3398, or another member of Fox Rothschild’s national Labor & Employment Department.

Understanding a HEC-RAS Analysis and Determining Where on Your Land You Can Build.

Written By:
The Land Use Department
LAN Associates

FEMA Maps, New Jersey Department of Environmental Protection (NJDEP) maps and regulations, and our changing climate, when it comes to determining legal requirements surrounding flood hazard risks, there are a lot of factors at play. There are also multiple methods to determine these risks and ensure compliance with relevant regulations. It’s safe to say that determining where you can and cannot build or engage in other regulated activities on a parcel of land is complicated.

So, what is the most accurate method of determining flood hazard risks? If you want to maximize the buildable space on a parcel of land by identifying precise boundaries of flood hazard areas, you should consider doing what is called a HEC-RAS analysis.                                                                      
What Is a HEC-RAS Flood Hazard Analysis, and How Does it Work?

At a very basic level, a HEC-RAS Flood Hazard Analysis simulates the flow of natural riverbeds or artificial channels to determine the flood hazard area by calculation. Under the direction of a licensed engineer, a surveying team goes to the site to take measurements of a watercourse and the surrounding land. This information, often in conjunction with additional information from the United States Geological Survey (USGS), is then used to create a model of the stream and surrounding area. Several other calculations are performed to determine the amount of water to “run” through the model, which will ultimately create a flood hazard map that is fine-tuned based on local conditions. The investigation and surveying requirements of a HEC-RAS Flood Analysis are more intensive because the goal is to get an accurate assessment of the conditions of the watercourse and the risks of constructing a project nearby.  
        
How is a HEC-RAS Flood Hazard Analysis Different from Other Methods?

Streams or watercourses not studied by FEMA or NJDEP require a determination of the flood hazard area associated with these watercourses. In New Jersey, the DEP requires the use of one of six methods to determine this, two of which utilize a HEC-RAS Analysis, Method 4 and Method 6, as stipulated by the Flood Hazard Area Control Act Rules at N.J.A.C. 7:13. These two methods require a licensed engineer to perform calculations to determine flood elevations and are thus generally considered the most accurate. Method 5 can also be used to determine a flood elevation, but it is sometimes considered overly conservative. Oftentimes, the most accurate calculations that clearly define the flood hazard area on your site are the most prudent course of action, especially since building in a flood hazard area is risky, time-consuming, and expensive. 

Method 4 to Determine the Flood Hazard Area

When determining a flood hazard area in New Jersey, Method 4 is used when you have some of the information you need available through existing mappings. It utilizes flow information published by FEMA in the analysis instead of calculating this information separately but still includes an investigation of missing FEMA information regarding the floodway, one of the two areas that make up a flood hazard area. This is a very important factor to consider when planning a project due to the more stringent regulations of the floodway.

Method 5 to Determine the Flood Hazard Area

Method 5 is another way to determine a flood hazard area in New Jersey that can be used in the case of unstudied streams. It does not require a HEC-RAS analysis. However, it is a conservative estimate that can lead to a large approximation of the flood hazard area, and it does not calculate the limits of the floodway. The drawback to this method is that it has greater potential to declare parts of land as unavailable for development unnecessarily.
      
Method 6 to Determine the Flood Hazard Area

When determining a flood hazard area in New Jersey, Method 6 is used when there is no information published by the DEP or FEMA. Just because a stream does not have any published information on it does not mean that the stream doesn’t have a flood hazard area. There are a surprising number of streams that are “unstudied” but still fall under NJDEP jurisdiction. Method 6 is the most accurate method to determine the flood hazard area and floodway limits in these cases because it involves site-specific measurements and calculations.
​
If Information on Flood Hazard Risks is Already Available, is HEC-RAS Necessary?

Existing information about flood risks on a particular parcel of land may be available; however, the data may be incomplete. Sometimes information for a watercourse only exists up to a point, even though the watercourse continues to flow through your site, or sometimes a site can contain multiple watercourses, but only one is studied. In these cases, a HEC-RAS analysis will fill in the gaps. Even if FEMA or DEP mappings exist for the site, Methods 4 and 6 can still be used to produce more detailed results of the flood hazard area limits, provided any DEP mapping for the site is dated prior to January 24, 2013. If a DEP map was published after that date, the limits of the flood hazard area set by that map must be used. Typically, a HEC-RAS analysis is used when there is not enough published information to determine the flood hazard elevation, but it may also be used to take a closer look at and potentially reduce the flood hazard area on a site. This can free up more land for development.
​
What about FEMA Maps? Aren’t They the Standard for Determining Flood Hazard Zones?

FEMA maps do not cover every water course. Many tributaries were not studied when FEMA assembled its maps. Additionally, DEP mapping is also used as a standard in New Jersey, but these same issues can arise. This discrepancy has led the DEP to develop different methods for determining the flood hazard area on a site in order to ensure that each site can get an accurate assessment of where the danger of floods lies.

Can Doing a HEC-RAS Analysis to Determine Flood Risks Help the Permitting Process?

Yes, in certain situations, doing a HEC-RAS analysis can help you obtain permits to undertake regulated activities such as construction or the creation of a nonpermeable surface. Many sites contain streams that do not have published flood information but are still regulated, so a flood hazard area must be determined in order to go through the permitting process. The HEC-RAS analysis also produces the limits of the floodway, and if your project can stay outside of this area, the permitting process may become quicker and easier.

When is a HEC-RAS Flood Hazard Analysis Needed?

A HEC-RAS Flood Hazard Analysis is useful when either incomplete or absent flood hazard information relating to a parcel of land is creating risk or hindering development. Developers may want to do a HEC-RAS analysis instead of an approximate analysis because they want a more accurate assessment of the regulated areas on site. Hiring a professional engineer to use HEC-RAS to analyze the exact locations of flood zones on your property may increase the buildable space available for your construction project, which can save you money in the long run.

Can HEC-RAS Flood Hazard Analysis Change my Requirements to Purchase Flood Insurance?

In short, having a HEC-RAS Flood Hazard Analysis performed will not change your requirements to purchase flood insurance. Flood insurance requirements are determined by FEMA’s National Flood Insurance Program, and the purpose of a HEC-RAS analysis is to determine the flood hazard elevation on a site to comply with NJDEP requirements. The two are separate entities and function separately. FEMA does offer a process to reduce or remove the flood hazard area on your property through a LOMA of LOMR, but that is a different discussion.    

Who Do I need to Contact to Get a HEC-RAS Flood Hazard Analysis Done?

A HEC-RAS Flood Hazard Analysis has to be performed by a licensed engineer who has a background in water resource management and hydrologic and hydraulic calculations. LAN Associates has a dedicated team of professionals who specialize in this discipline, but not all engineering firms have someone who meets these requirements on staff. It is important that you contact a qualified firm.

Can LAN Associates Help Complete a HEC-RAS Analysis for my Property?

​Yes, the engineers at LAN Associates have both the qualifications and required credentials to provide an in-depth HEC-RAS analysis of your property to determine if it presents a flood hazard risk and where on a property is safe to build.            

Written By:
David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Snehal Batra, Esq.
Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

Completing a medical residency in the United States is a monumental achievement for international medical graduates (IMGs). However, transitioning from residency to practicing medicine or furthering your career in the U.S. involves several critical steps, especially if you’re looking to secure a Green Card. Here’s a structured approach to help IMGs navigate this important phase.

1. Evaluate Visa Options

Most IMGs complete their residency on a J-1 or H-1B visa. Each of these visas has specific requirements and implications for your journey toward permanent residency:

J-1 Visa Holders: If you trained in the U.S. under a J-1 visa, you are subject to a two-year home-country physical presence requirement. You can waive this requirement by obtaining a waiver through programs like the Conrad 30 Waiver Program, which involves agreeing to work for three years in a medically underserved area.

H-1B Visa Holders: If your residency was under an H-1B visa, you might have a smoother transition. The H-1B visa allows you to work in the U.S. in a specialty occupation and can be a bridge to applying for a Green Card through employment.

2. Consider Employment-based Green Card Options

As an IMG, you can explore several pathways to a Green Card based on employment:

EB-2 Visa: If you possess an advanced degree or can demonstrate exceptional ability in the sciences, arts, or business, you may qualify for an EB-2 visa. A National Interest Waiver (as discussed earlier) could be an option under this category to bypass labor certification requirements.

EB-3 Visa: This category is for skilled workers, professionals, or other workers. If you do not qualify for an EB-2, this might be a viable alternative.

3. Secure a Job Offer in a Medically Underserved Area

Working in a medically underserved area not only helps meet critical healthcare needs but can also expedite your Green Card process, particularly under programs like the Conrad 30. Hospitals and clinics in these areas often sponsor visas and Green Cards due to the high demand for medical professionals.

4. Prepare and File Your Green Card Application

Once you have a job offer and have decided on the appropriate visa category, you’ll need to prepare and file your Green Card application. This process involves several steps, including:

Adjustment of Status (I-485) or Consular Processing: Depending on whether you are in the U.S. or abroad.
Application for Employment Authorization Document (EAD) and Advance Parole (AP), if needed.

5. Continuous Professional Development

While your Green Card application is pending, continue to enhance your qualifications. This could involve obtaining board certifications, participating in additional fellowships, or engaging in research. These activities not only enrich your resume but also strengthen your petition for permanent residency.

Navigating the post-residency phase as an international medical graduate involves careful planning and an understanding of both immigration and professional pathways. With the right strategy, IMGs can transition effectively from residency to a successful career in medicine within the U.S., while also securing their status as permanent residents.

Contact Our Experienced U.S Immigration Lawyers At NPZ Law Group
​
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing [email protected] or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.

Written By:
Keturah Taylor
Associate
Cozen O'Connor

Credit card surcharging has increasingly gained the attention of consumers, businesses, and regulators over the past few years, and for good reason. As inflation continues to squeeze businesses and consumers alike, many companies have taken a hard look at the impact of credit card processing fees on their bottom line. In considering how to recoup those significant costs, the clear choice becomes either raising prices for all customers, or passing on those costs specifically to customers who choose to pay with credit, via credit card surcharging. For consumers, credit card surcharges can often be a source of frustration or confusion, particularly if they are not adequately disclosed.

Thus, state lawmakers have found themselves facing requests from the business community— particularly the restaurant industry and small business organizations—to permit credit card surcharging to allow for fair recoupment of those costs, while also contending with constituents who feel they are being nickel and dimed by fees at every turn. It is therefore unsurprising that a number of states have recently enacted surcharging legislation to provide guidance to businesses seeking to impose surcharges, and establish clear disclosure requirements and other consumer protection measures.

New York Surcharging Law Effective February 11, 2024

New York enacted a new surcharging law in December 2023, which took effect on February 11, 2024.1 The law repeals New York’s statutory ban on credit card surcharging and establishes disclosure requirements, limits on the amount of the surcharge, and penalties for violations of the law.

Specifically, it requires that businesses clearly and conspicuously post “the total price for using a credit card in [a] transaction, inclusive of surcharge,” while also allowing the “two-tier pricing system” which was previously permitted in the state following litigation over the state’s former statute banning surcharging.2 Under the new law, the amount of the surcharge is limited to the amount “charged to the business by the credit card company.”

These changes provide important protections for consumers, and much-needed clarity to merchants—many of whom may have been unaware of the precedent permitting two-tier surcharging and consequently forgoing surcharging altogether.

Additionally, the new law establishes a civil penalty of up to $500 per violation, which is enforceable by municipalities and local governments. While the law does not specifically provide for enforcement by the state’s attorney general, the New York AG’s office has historically been an aggressive consumer protection enforcer and would likely view non-compliance with the surcharging law as a violation of the state’s consumer protection laws, which is well within its enforcement authority.

New Jersey AG Announces Surcharging Enforcement Sweep, Publishes Guidance

New Jersey enacted a new surcharging law in August 2023, which limits surcharging to “the actual cost to the seller to process the credit card payment,” and requires merchants to disclose the surcharge early in the transaction.3 For in-person transactions, the disclosure must be made at the point of entry and point of sale. For online, mobile, or other electronic transactions, the disclosure must be made on the checkout page. The law also contains specific disclosure requirements for restaurants and for transactions completed by phone. 

​New Jersey AG Platkin has wasted no time in investigating violations of the New Jersey surcharging law, which are now enforceable under the state’s Consumer Fraud Act. In December 2023, AG Platkin announced a “crackdown on hidden credit card surcharges,” stating that his office had investigated “dozens of complaints from New Jersey consumers, resulting in civil penalties against 30 businesses throughout the state[.]”4 According to the AG’s office, the amount of civil penalties assessed against each business varied, “depending on the nature and number of violations found.”

​Also in December 2023, the New Jersey AG’s office published guidance for merchants and consumers regarding credit card surcharging.5 Among other things, the guidance advises that “[d]isclosing only that a surcharge will be applied, without also disclosing the amount prior to the consumer incurring a charge, is not sufficient to comply with the law.” Note, however, that disclosing the percentage (rather than dollars-and-cents surcharge amount) is permitted. The guidance also explains that businesses may impose a flat rate surcharge so long as the rate does not exceed the actual processing costs.

More States Considering Surcharging Legislation in 2024

As credit card surcharging becomes more prevalent across the country, more state legislators are examining the issue and introducing legislation to regulate the practice, often at the request of restaurant and small business industry associations. As of February 2024, at least ten states currently have bills pending that relate to credit card surcharging. While some are industry-specific or otherwise limited, many are of general applicability and follow the trend of the recently-enacted laws in Colorado, New Jersey, and New York in being fairly prescriptive with regard to disclosure requirements and permissible surcharge amounts.

Of note, legislation has been introduced in Massachusetts which, as drafted, would permit surcharging with certain guardrails.6 This is significant because Massachusetts is one of only two states—in addition to Connecticut—that currently prohibits surcharging.

​Businesses that already utilize credit card surcharging would do well to pay close attention to emerging legislation in any state where they accept consumer payments. And, businesses that have not yet considered credit card surcharging may want to consider seizing the opportunity to recoup processing costs, as surcharging becomes more prevalent and consumers become more accustomed to paying them. In any event, company surcharging policies and practices must include strict regulatory compliance.

1 See S. 1048A (N.Y. 2023) (amending N.Y. Gen. Bus. L. § 518).
2 Under Expressions Hair Design v. Schneiderman, 975 F. Supp. 2d (S.D.N.Y. 2013); rev’d, 808 F.3d 118 (2d Cir. 2017), vacated and remanded, 137 S.Ct. 1144 (2017), the “two-tier pricing system” permitted surcharging so long as the surcharge amount is displayed or otherwise disclosed in dollars and cents.
3 See N.J.S.A. § 56:8-156.2.
​4 See Press Release, AG Platkin, Division of Consumer Affairs Announce Educational, Enforcement Action Providing Financial Protections for New Jersey Consumers as They Shop, Dine, and Travel this Holiday Season (Dec. 19, 2023).
5 See N.J. Off. of Att’y Gen., Div. of Consumer Affairs, Credit Card Surcharges Frequently Asked Questions (Dec. 11, 2023).
6 See S. 2565 (Ma. 2024)

Written By:
David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Snehal Batra, Esq.
Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

The United States Department of Labor (DOL) has enacted new standards for defining independent contractor status under the Fair Labor Standards Act (FLSA), effective March 11, 2024. These changes signify a notable shift from the previous administration’s guidelines, critically impacting the preparation of I-9 FORMS for workforce management in the U.S.

Background: From 2021 Rule to 2024 Final Rule

The Trump administration’s 2021 Rule simplified the classification of workers as independent contractors, focusing mainly on workers’ control over their work and profit or loss risks. Contrastingly, the 2024 Final Rule, announced on January 9, 2024, rescinds these standards in favor of a more encompassing “totality of the circumstances” approach. This revision could lead to more workers being classified as employees rather than independent contractors.

The Economic Realities Test

Reinstating the economic realities test, the Final Rule assesses the relationship between worker and employer through six primary factors:

• Opportunity for Profit/Loss: The worker’s potential to earn or lose money based on their managerial skills.
• Investments: Comparison of the worker’s and the employer’s investments in the work.
• Permanence of Relationship: How long-lasting and stable the work relationship is.
• Degree of Control: The level and nature of the employer’s control over the work.
• Work’s Integral Nature: The significance of the work to the employer’s business.
• Skill and Initiative: The worker’s level of skill and initiative.

These factors are not exhaustive and allow room for additional considerations, offering courts and agencies significant discretion.

Implications for I-9 FORM Compliance

A key aspect of the Final Rule is its implications for I-9 FORM compliance. While the I-9 FORM is mandatory for verifying the legal work authorization of employees in the U.S., it is not required for true “independent contractors.” This underscores the importance of accurately distinguishing between an independent contractor and a W-2 employee.

With the Final Rule, justifying independent contractor classifications may be more challenging, potentially increasing the number of workers requiring I-9 FORMS. Employers must reassess their workforce classifications to ensure compliance with both the new rules and I-9 FORM requirements.

Takeaway and Future Considerations

The Final Rule introduces a more stringent and comprehensive approach to worker classification, likely complicating the classification of workers as independent contractors. Employers should review their worker classifications to avoid legal and tax issues related to misclassification.

Employers must also stay informed about potential legal challenges or changes to these rules, as the Final Rule could face opposition from business groups and legislative efforts.

Conclusion

The implementation of the Final Rule necessitates a careful review of worker relationships and proactive compliance strategies. Employers are advised to consult legal experts to navigate these changes effectively, ensuring adherence to both the new classification standards and I-9 FORM requirements.

If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing [email protected] or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.

David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq.
and Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

​U.S. Citizenship and Immigration Services on Dec 6, 2019, announced a requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10.00 H-1B registration fee before filing a petition. USCIS will open an initial registration period for a minimum of 14 calendar days each fiscal year. 
  
       ● During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.  
  
                 ● If a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2024. Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration. 
  
USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded. 
 
Also, if the proposed rule announced by DHS on Oct 20th, 2023, is made effective, it would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud. Under the new proposal, each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. 
 
What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? To better prepare for the H-1B cap season, this article endeavors to summarize a few practice pointers that every prospective H-1B employer and employee needs to know.
 
Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.
 
The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year with the exception of the 20,000 additional H-1B visas which are reserved for individuals who have received a master's or higher degrees from a U.S. college or university. In an upcoming article, we will discuss, in detail, whether or not every master’s degree from a U.S. academic institution qualifies an individual for the H-1B master’s cap.
 
Because of the limited number of H-1B visas, employers should identify individuals who would need H-1B sponsorship. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the Labor Condition Application (LCA), Form ETA 9035. Thus, formulating a strategy for an H-1B petition is key to hiring an H-1B employee for the next USCIS fiscal year which begins on October 1st, 2024.
 
How Long Will USCIS Accept H-1B Petitions?
 
With the new H-1B Online registration period starting around early March, if a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2024. USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.
 
Refrain From Submitting Multiple H-1B Registrations For the Same Employee.
 
An employer may not submit more than one H-1B registration for each prospective employee during the fiscal year. This limitation also precludes an employer from filing multiple petitions for different jobs for the same employee but does not preclude related employers (e.g., parent and subsidiary companies or affiliates) from filing petitions for the same beneficiary. However, the employer must demonstrate a legitimate business need to do so and, if it fails to meet that burden, all petitions on behalf of the beneficiary will be denied or revoked. 
 
Both the Proffered Position And the Prospective H-1B Employee Should Qualify.
 
Not only the prospective employee but also the proffered position should qualify for the H-1B visa. For a proffered position to qualify for an H-1B visa, it must be a job in a “specialty occupation”. “Specialty occupation” is an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. 
 
The H-1B regulations further require that a position also meet one or more of the following criteria in order to qualify as a specialty occupation: (1) a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations; (3) the employer normally requires a degree or its equivalent for the position; (4) the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 
 
Therefore, in order to qualify as a “specialty occupation,” a proffered position must: (1) require a theoretical and practical application of a body of highly-specialized knowledge; (2) require a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation; and (3) meet at least one of the four criteria listed above. 
 
For a prospective employee to qualify for the proffered H-1B position, regulations specify that he/she should have one of the following: (1) full state licensure to practice in the occupation (if required); (2) completion of the degree required for the occupation; or (3) progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.
 
The Filing Fee Depends Upon the Type And Size of H-1B Employer.
 
Initially, Employer will need to pay the H-1B registration fee in the amount of $10.00. Aside from the H-1B legal fee, the employer will also need to pay the USCIS filing fees. The amount of the H-1B filing fee depends on the size and type of employer. All employers are required to pay the base filing fee for the H-1B petition which is currently $460.00. Additionally, pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750.00 or $1,500.00 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.
 
A sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time equivalent employees. In all other cases, the employers need to pay $1500.00. Employers such as institutions of higher education; nonprofit organizations or entities related to or affiliated with an institution of higher education; nonprofit research organization or governmental research organization, etc. are exempt from paying the ACWIA fee. Additionally, employers seeking initial approval of an H-1B must pay a $500.00 Fraud Prevention and Detection fee as mandated by the H-1B Visa Reform Act of 2004.
 
Additionally, as a result of the FY2020 Omnibus Appropriations Bill passed on December 18th, 2015, the supplemental fee for H-1B petitions are increasing for companies that employ 50 or more employees in the United States and have more than 50 percent of their U.S. workforce in H-1B, L-1A, or L-1B nonimmigrant status. Specifically, the previously expired fees H-1B petitions will increase from $4,000. These supplemental fees must be paid on initial and extension petitions. Further, either the employer or employee can pay an optional premium processing fee of $2,500.00 to expedite the adjudication of a petition.
 
Be Aware of Salary and Benching Costs.
 
A prospective employer must obtain an approved Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The employer attests on the LCA that the H-1B nonimmigrant worker will be paid wages which are at least the higher of the actual wage paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage level for the occupational classification in the area of intended employment. Thus, not to undercut wages paid to the comparable U.S. workers, Congress has included a safeguard in the H-1B program. Additionally, and in some cases the employers are required to pay the costs for the petition process. The wage offered to the prospective H-1B nonimmigrant may drive whether or not the employer is or is not required to pay for the H-1B visa process.
 
Regulations require that employers must begin paying LCA-stated wages when the employee “makes him/herself available for work” but not later than 30 days after employee’s entry into the United States (if the prospective H-1B employee is outside the U.S.) or 60 days from the date that USCIS grants a Change of Status (if the prospective H-1B nonimmigrant is inside the U.S.). Liability begins to accrue when the person “enters into employment” with the employer. Thus, even if the worker has not yet “entered into employment,” when the H-1B worker is present in the U.S. on the date of the approval of the H-1B petition, the employer is required technically to pay to the worker the required wage beginning 60 days after the date the H-1B worker becomes eligible to work for the sponsoring employer. The H-1B worker becomes “eligible to work” for the employer on the date set forth in the approved H-1B petition filed by the employer.
 
An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., this is referred to as “benching” because of lack of work, lack of a permit or license). This regulation applies even if the H-1B employee is receiving training (either provided by the employer or through some other external arrangement at the direction of the employer). Thus, the employer is liable for both nonproductive time as well as productive time once the employee becomes eligible for work. Employers who do not pay non-terminated H-1B employees may face civil penalties. Employers are generally advised to pay an H- 1B employee his or her salary as listed on the LCA until that employee has been terminated and the USCIS has been notified of the request to withdraw the H-1B Petition. Furthermore, if the H-1B employee is terminated prior to the end of the period of admission, the employer should withdraw the H-1B and may be liable for “the reasonable costs of return transportation” to return the foreign national home.
 
Compliance Issues: Posting Notice of the LCA & Maintaining Public Access Files.
 
Notice of the LCA must be posted, or where there is a union it must be given to the union, before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notice should state where complaints may be filed. Notice must be posted at two conspicuous locations at place of employment where any H-1B nonimmigrant will be employed and the notice shall be posted on or within 30 days before the date the LCA is filed with the U.S. DOL and shall remain posted for a total of 10 days.
 
Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer may also provide electronic notice to employees in the “occupational classification” for which H-1Bs are sought, through any means it normally uses to communicate with employees including a home page, electronic bulletin board or e-mail. If accomplished through e-mail it needs only to be sent once; other electronic forms (e.g., home page) should be “posted” for 10 days. Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment (same MSA- Mean Statistical Area) listed on the LCA.
 
Additionally, an employer must maintain a group of documents referred to as a Public Access File (PAF). The PAF must be accessible to interested and aggrieved parties. The PAF must be available at either the employer’s principal place of business or at the worksite. An interested party is one that has “notified the DOL of his or her/its interest or concern in the administrator’s determination.”
 
The PAF must be available within one day after the LCA is filed with all supporting documentation including: a copy of the completed LCA; documentation which provides the wage rate to be paid; a full, clear explanation of the system used to set the “actual wage”; a copy of the documentation used to establish the prevailing wage; copy of the notice given to the union/employees; and a summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).
 
Demonstrate Sufficient Level of “Control” Over Prospective H-1B Employee(s).
 
In order for the H-1B petition to be approved by USCIS, a petitioning employer must establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid “employer-employee relationship” for the purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of “control” over the H-1B employee.
 
Thus, the prospective H-1B petitioner organization must be able to establish that it has the “right to control” when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job. USCIS considers various factors in making such a determination (with no one particular factor being decisive).
 
For more information about the H-1B nonimmigrant work visa process or to consider H-1B nonimmigrant work visa options, the immigration and nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. invite you to visit them on the web at www.visaserve.com or to email them at [email protected] or to call the firm at 201.670.0006 (x104).

Written By: 
David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq.
and Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

New York City has taken a significant step in reinforcing workers’ rights with the recent passage of a bill that mandates an “Employee Bill of Rights.” This groundbreaking legislation will become effective on December 3, 2023, and aims to provide comprehensive protections and information to all employees, irrespective of their immigration status. This blog post delves into the key aspects of this bill, its implications for employers and employees, and the critical dates to keep in mind.

The Essence of the Bill:

The NYC Council’s decision to pass this bill underscores the city’s commitment to worker protection and inclusivity. The Department of Consumer and Worker Production (DCWP), in collaboration with various city agencies and organizations, is tasked with developing and publishing the workers’ bill of rights on the City’s website. This document will highlight pertinent federal, state, and local labor laws, affirm the right to unionize, and explicitly state that these protections are extended to individuals regardless of their immigration status.

Key Deadlines and Requirements:

Employers must be aware of several critical deadlines:
March 1, 2024: The final draft of the workers’ bill of rights must be posted on the City’s website in English and other designated languages.

July 1, 2024: Employers are required to distribute this bill of rights to all current employees and provide it to new hires on their first day.

Workplace Compliance:

In addition to distribution, employers must visibly post the bill of rights at their business premises and on their websites. Electronic communication with employees should also include access to this document. While the bill currently does not mandate the distribution to independent contractors, its scope covers all employers within New York City’s geographic boundaries.

Penalties and Compliance Window:

Non-compliance attracts a penalty of $500. However, employers have a 30-day grace period to rectify any violation post the initial complaint. This provision allows businesses to adapt to the new requirements without immediate penalization.

Community Outreach and Support:

The Mayor’s Office of Immigrant Affairs (MOIA) will lead community outreach initiatives to educate about the bill of rights. These efforts will include providing contact details for immigration legal assistance, guidance on dealing with immigration enforcement at workplaces, and information on federal eligibility for temporary protected status.

Conclusion:

The Employee Bill of Rights is a monumental step in safeguarding worker rights in New York City, emphasizing inclusivity and equal protection for all. Employers must stay informed and prepare to implement these changes effectively. For employees, this bill represents a significant stride towards a more secure and informed workforce, empowering them with knowledge about their rights and available resources.

Next Steps: For further information and updates, employers and employees are encouraged to visit the official NYC website and consult with legal experts to ensure full compliance and understanding of this new legislation.