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.
 

Written by:
Gianfranco A. Pietrafesa, Esq.
​Zhao Li, Esq.
Archer & Greiner, P.C.

A new federal law, the Corporate Transparency Act (“CTA”), goes into effect on January 1, 2024. It is intended to prevent money laundering and other bad acts. Unless a company falls into one of twenty-three categories of companies exempt from reporting, it will be required to provide personal information about its owners and senior management (together, the group is known as “beneficial owners”) to FinCEN, which is part of the U.S. Treasury Department. The personal information includes a beneficial owner’s name, date of birth, home address, and driver’s license, passport or other form of government ID.
 
It is estimated that more than 30 million privately-held companies will be required to file reports under the CTA. The new law applies to both U.S. companies and foreign companies registered to do business in the U.S. A company formed or registered on and after January 1, 2024 must file a report within 90 days. A company formed or registered prior to January 1, 2024 must file a report by January 1, 2025.
 
A company should take immediate action to (1) analyze whether it is a reporting or exempt company, (2) determine who is a beneficial owner of the company (which may not be straightforward for many companies), and (3) collect personal information from beneficial owners. Take note that if a company fails to comply with the CTA, there are significant civil and criminal penalties on the company as well as its senior management and beneficial owners.
 
To understand your obligations under the CTA, we recommend that you review our advisory, which can be found here:
 
ARCHER & GREINER ADVISORY

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

Introduction:
President Biden's recent executive order on artificial intelligence has the potential to revolutionize employment-based immigration in the United States. The order aims to modernize the Schedule A list, which is critical to fill labor shortages in high-demand fields and attract global talent to the country's crucial sectors.
 
Understanding the Impact of Biden's AI Executive Order on Employment-Based Immigration
 
The White House's executive order on artificial intelligence is a significant step towards reshaping employment-based immigration laws. Under this order, the Department of Labor (DOL) is required to issue a request for information (RFI) by December 13, seeking inputs on "identifying AI and other STEM-related occupations." This process invites public and expert engagement, and it is the first significant update in the Schedule A list since 1991.
 
The Significance of Updating the Schedule A List
 
The modernization of Schedule A is crucial to address the evolving needs of the American labor market, particularly in the wake of the COVID-19 pandemic. The last significant update to the list was in 1991, and it has become outdated. The White House's order positions the country to keep pace with the economic and skill demands of the market.
 
Adopting a Data-Driven Approach to Labor Shortages
 
The DOL should leverage comprehensive labor market analytics to update the Schedule A list. This approach involves analyzing trends in unemployment rates, employment growth, wage patterns, and job vacancy rates. A data-driven approach ensures that the list accurately reflects current labor shortages and can adapt to future market changes.
 
Global Comparisons: Learning from the UK and New Zealand
 
Countries like the United Kingdom and New Zealand regularly adjust their shortage occupation lists based on extensive labor market research and stakeholder input. The US can learn from these examples to create a dynamic and responsive immigration system that keeps pace with economic and skill demands.
 
Beyond Filling Gaps: A Strategy for Economic Growth and Innovation
 
The modernization of Schedule A is not just about filling job vacancies; it's about driving advancement and innovation in critical sectors such as STEM and healthcare. By attracting international talent in these areas, the US can maintain its status as a hub for innovation and progress, complementing domestic workforce contributions.

Conclusion:

The White House's AI executive order is an essential step in reshaping the employment-based immigration landscape. It offers predictability and flexibility to the system and aligns with current economic conditions. However, modernizing employment-based immigrant visa categories is also crucial to avoid long wait times for foreign workers. This comprehensive approach ensures the US remains a competitive destination for global talent, fostering economic growth and innovation.
 
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: 
David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq.
and Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

The ongoing conflict in the Middle East has affected many, including U.S. citizens, green card holders, and non-U.S. citizens in need of visa services. This article aims to shed light on the current scenario and provide relevant resources and pointers for those impacted.

1. Visa Services Impact:

On October 13, 2023, the U.S. Embassy in Israel announced the suspension of Nonimmigrant (NIV) and Immigrant Visa (IV) services due to the escalating security situation. The directive resulted in the authorized departure of non-emergency U.S. government personnel and their families. For those in desperate need to travel to the U.S., the recommendation is to apply as a third-country national at any other global post and request an expedited appointment there.

Those who have upcoming visa appointments in Jerusalem and Tel Aviv should note that these appointments will be rescheduled. Those traveling due to medical or humanitarian emergencies should log into the U.S. visa information website and request an expedited appointment with relevant details.

2. For U.S. Citizens in the Middle East:

Given the unpredictable situation, U.S. citizens in Israel, The West Bank, and Gaza are advised to:

Stay Updated: Enroll in the Smart Traveler Enrollment Program (STEP) to receive timely travel alerts and security updates.

Report Needs: In case of any emergency or assistance required for leaving the region, complete the online Crisis Intake Form. This form is vital for those seeking U.S. government assistance for departure.

Monitor Sources: Keep an eye on DOS, Embassy websites, and their social media accounts for real-time security updates, travel advisories, and other crucial information.

Understand Departure Assistance: The U.S. government has initiated departure assistance for U.S. citizens and their immediate family members through chartered flights and sea routes. The destination will not necessarily be the U.S., and travelers are required to sign an agreement promising to repay the U.S. government.

3. U.S. Citizens in Gaza:

The conflict between Israel and Hamas has further complicated departure options. However, U.S. officials are exploring potential solutions. For immediate assistance, U.S. citizens in Gaza should fill out the crisis intake form.

4. Contact Information:

U.S. citizens can contact the U.S. Embassy for emergency passport services or any other assistance. Details of the U.S. Embassy in Jerusalem, U.S. Embassy Branch Office in Tel Aviv, and other relevant contact information can be found on the official embassy websites.

5. Additional Information:

New entry procedures have been announced by Israel for U.S. citizens listed on the Palestinian Population registry for Gaza. Those denied entry to Israel can contact the American Citizens Services (ACS) Unit for assistance.

Conclusion:

The ongoing crisis in the Middle East has brought about significant changes to visa processing and has affected the mobility of U.S. citizens in the region. It is crucial to stay updated, remain vigilant, and make informed decisions during these challenging times. The U.S. government and its offices remain committed to assisting its citizens as the situation evolves.

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 don't 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

The U.S. Equal Employment Opportunity Commission (EEOC) requires certain private employers and federal contractors to submit and certify reports concerning their workforce demographic data. This data collection, known as the 2022 EEO-1 Component 1 data collection, will open on Tuesday, Oct. 31, 2023, and the deadline for employers to submit their reports to the EEOC is Dec. 5, 2023.  Accordingly, employers required to submit such reports should be gathering the required workforce demographic data and be prepared to comply.

The EEOC requires private employers with 100 or more employees that are covered by Title VII of the Civil Rights Act of 1964, as amended, and federal contractors with 50 or more employees that meet certain criteria, to report annually the number of individuals they employ by job category, sex, and race or ethnicity.  This data is collected by the EEOC, and reported by employers, through the EEO-1 Component 1 Online Filing System (OFS). Employers can submit the required workforce demographic data on the OFS either manually or via a data file upload. The OFS, 2022 EEO-1 Component 1 Instruction Booklet, Data File Upload Specifications, FAQs and Fact Sheets can be accessed here.

Workforce Demographic Data

Employers required to report must select a pay period during the fourth quarter (Oct. 1, 2022, through Dec. 31, 2022) for which to report the workforce demographic data. This employer-selected period is known as the “workforce snapshot period.”  Employers are to report the job category, sex, and race or ethnicity, for all employees employed during this period, including all full-time and part-time employees. If an employee was employed at any time during the workforce snapshot period, then the employee must be reported, even if they were terminated or resigned during the period, or after.

Notably, beginning with the 2023 EEO-1 Component 1 data collection, an employer that meets the employee threshold at any time during the fourth quarter (Oct. 1, 2023 through Dec. 31, 2023), will be required to report, and may not select a workforce snapshot period wherein the employer falls below the threshold to avoid the filing requirement.

The Required Reports

Single-Establishment Employers

An employer that conducts business or performs services or industrial operations at only one establishment is required to file a “Single-Establishment Employer Report.” This report was previously referred to as a “Type 1” single establishment report.

Multi-Establishment Employers

A “multi-establishment employer” is an employer with more than one establishment where business is conducted or where services or industrial operations are performed. Multi-establishment employers are required to submit a “Headquarters Report” (previously referred to as a “Type 3” headquarters report), that includes the required demographic data for all employees employed at its headquarters, and “Establishment-Level Reports” that include the demographic data for employees employed at each non-headquarters establishment of the employer, regardless of the number of employees at each establishment. Beginning with the 2022 EEO-1 Component 1 data collection, the Establishment-Level Reports will replace the former “Type 4” report (for establishments with 50 or more employees), the “Type 8” report (for establishments with fewer than 50 employees), and the “Type 6” establishment list report – which was discontinued beginning with the 2021 EEO-1 Component 1 data collection. In addition to the Headquarters Report and Establishment-Level Reports, multi-establishment employers are also required to submit and certify to a “Consolidated Report,” which includes the workforce demographic data for all of a multi-establishment employer’s employees, however, the Consolidated Report will be auto-generated within the OFS based on the data from the Headquarters Report and Establishment-Level Reports.

Remote employees should be included in the EEO-1 Component 1 report in accordance with the specific establishment that they report to or are assigned to. If an employee does not report to, or is not assigned to, any physical location, they should be included in the report for the establishment to which their manager reports or is assigned. If there is no such establishment, the employee should be included in the Headquarters Report. If the employer is entirely remote, then the employee should be reported at the address where the entity is legally registered to do business.

Currently, employees who work at a client site are required to be included in the employer’s EEO-1 Component filing, and employers have the option to report these employees by either (1) using the client site address as the location of the establishment or (2) reporting those employees at an establishment of the employer. However, beginning with the 2023 EEO-1 Component 1 data collection, employers will no longer have this option and will be required to report employees working at client site locations at the address of the client site. As such, employers should be aware and prepared for this impending change next year.

The Reporting of Non-Binary Employees

Presently, only binary options (i.e., male or female) are available for reporting employees as part of the EEO-1 Component data collection. Nevertheless, employers may voluntarily choose to report employee demographic data for non-binary employees. For single-establishment employers, this may be done in the “Certification Comments” section of the report. Similarly, for multi-establishment employers this may be done in the “Headquarters or Establishment-Level Comments” section of the report. EEOC guidance provides that such comments should be prefaced with the phrase “Additional Non-Binary Employee Data:”. The non-binary employees reported in the comments should not be otherwise included in the report. For example, if a single-establishment employer has 100 employees and voluntarily reports two as non-binary in the comments section, the employer’s Single-Establishment Employer Report should reflect an employee count of 98, with the two non-binary employees’ complete demographic data reported in the comment section only.

Changes for Federal Contractors

Beginning with the 2022 EEO-1 Component 1 data collection, federal contractors will no longer be required to provide their Data Universal Numbering System (DUNS) numbers associated with their headquarters and/or establishments. Instead, federal contractors must now provide their “Unique Entity ID” (UEI), which can be created at www.sam.gov, with their required reports. This change is due to the federal government’s decision on April 4, 2022, to stop using the DUNS to identify federal contractors doing business with the government and to instead start using the UEI as the official identifier for federal contractors.

Failure to File

Employers that do not submit and certify their required 2022 EEO-1 Component 1 report(s) by the Dec. 5, 2023 deadline, will receive a “Notice of Failure to File” from the EEOC.  The notice will instruct employers to submit their workforce demographic data as soon as possible, but no later than Tuesday, Jan. 9, 2024. After Jan. 9, 2024, employers that have failed to submit and certify their 2022 EEO-1 Component 1 report(s) will be deemed out of compliance, and no additional reports will be accepted. Upon application by the EEOC, employers that fail to file when required to do so may be compelled to file by order of a U.S. District Court.
Employers that are not able to comply by the deadline because compliance would create an undue hardship may submit a written application for an undue hardship exemption. This written exemption application must be mailed to the EEOC and postmarked on or before Dec. 5, 2023.

*          *          *

Given that the 2022 EEO-1 Component 1 data collection will open on October 31, and the deadline to file is Dec. 5, employers should be prepared to select their workforce snapshot period.  Additionally, employers should ensure that they have collected employees’ job category, sex, and race or ethnicity data for the relevant period through the use of voluntary self-identification forms, which is typically done during employee onboarding. However, where an employee declines to self-identify, then the employer can use employment records or observer identification to record the EEO-1’s demographic data.            

Employers that have questions regarding the 2022 EEO-1 Component 1 data collection should seek the assistance of an experienced labor and employment attorney who is familiar with these requirements to avoid the risks of non-compliance.

For more information, please contact Kenneth A. Rosenberg at [email protected] or at 973-994-7510 or Brian J. Frederick at [email protected] or at 973-548-3398, or any member of Fox Rothschild’s Labor & Employment Department.
​
ASSOCIATED PEOPLE
Kenneth A. Rosenberg
973.994.7510
Email

Brian J. Frederick
973.548.3398
Email

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

Introduction:

The unfolding strike by the United Auto Workers (UAW) against the Detroit Three automakers has sparked a series of concerns among manufacturers and various entities within the automotive supply chain. Initiating on September 15, 2023, the strike has driven companies to examine loss mitigation strategies like furloughs, pay cuts, altered schedules, and layoffs. Nonetheless, employers utilizing foreign workers are met with an intricate scenario – ensuring adherence to federal immigration regulations during these tumultuous times.

Deciphering the Ancillary Effects:

While jobs under the UAW labor contracts typically don't involve visa sponsorship, the far-reaching implications of the strike bring forth compliance challenges for vendors and other affected employers. A significant modification in a foreign national’s employment terms can imperil the legitimacy of their legal status and work authorization, exposing the employer to possible immigration infringements.

The Ban on Forced Benching:

Rigorous federal immigration regulations stringently outlaw the compulsory sidelining of employees holding H-1B, H-1B1, or E-3 work visas. Firms face repercussions for relegating H-1B workers to a non-productive, unpaid status, colloquially termed "on the bench." This necessitates that organizations uphold regular salary disbursements or grapple with the potential cessation of H-1B employment agreements.

Navigating Wage Adjustments and Shift Alterations:

The law mandates that employers remunerate H-1B employees the greater of the actual or the prevailing wage, as stipulated by the Department of Labor (DOL). Any variance, particularly in the form of salary deductions or schedule modifications amounting to a pay reduction, places the employer in a delicate situation, necessitating compliance amendments and notifications to the DOL and U.S. Citizenship and Immigration Services (USCIS).

Addressing Varied Work Visas:

Diverse regulations are applicable to other employer-sponsored work visas like E-1, E-2, L-1, O-1, and TN. Employers have the discretion to incorporate holders of these visas in mitigation strategies, albeit the eligibility for unemployment benefits during furlough is subject to state laws and individual circumstances, adding a layer of complexity.

Navigating Prolonged Strike Implications:

In the scenario of an enduring strike, employers may be compelled to adopt more definitive measures such as extensive layoffs or workforce downsizing. These measures could potentially disrupt the path of foreign workers towards attaining permanent residency and might culminate in the loss of key resources vital for propelling the business forward.

Conclusion:

The UAW strike has accentuated the challenges manufacturing and other employers face in adhering to immigration compliance. Striking a balance between loss mitigation strategies and federal guidelines necessitates meticulous consideration and adept navigation to circumvent potential infringements and retain invaluable foreign workers. In these uncertain times, staying informed and vigilant is paramount for employers aiming to safeguard their responsibilities and shield their workforce.

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 don't 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.
 
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Written By: 
David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq.
and Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

Introduction 

Learn everything you need to know about internal audits for Form I-9. From what to do if you've used the wrong form, to dealing with E-Verify, this ultimate guide answers all your questions. 

What to Do if the Wrong Version of Form I-9 is Completed 
 
If you realize that an outdated form was used, don't fret. Staple the old form to a blank new one and explain the reason. The key is good faith and timely correction. 
 
How to Audit Section 2 of Form I-9 
 
Verify the documents presented under the rules effective at the time of hire. An old but once valid document can still meet compliance standards. 
 
Handling Incomplete or Missing Forms 
 
Don't backdate; instead, fill out the current form and append it with a dated explanation. 
 
Revising Inadequate Forms for Current Employees 
 
Yes, you can update them. Just staple the updated form to the original, with an explanation. 
 
What if Form I-9 Documents Look Suspicious? 
 
Handle this delicately. The employee should have the opportunity to present alternative documentation. Discrimination or retaliation is not an option. 
 
Can Employers Ask for Specific Documents in an Audit? 
 
No, let the employee choose from the list of acceptable documents for the I-9. 
 
Managing E-Verify Non-Compliance 
 
Failure to use E-Verify when required demands immediate action. Consult the U.S. Citizenship and Immigration Services for advice. 
 
Mistaken Employee Termination Due to Tentative Nonconfirmation in E-Verify 
 
You should consider corrective actions like offering re-employment. Failure to do so may violate the INA. 
 
Should You Replace All Existing Employees' Forms I-9? 
 
Be cautious, as this could raise discrimination concerns. If you must, don’t backdate the new forms. 
 
Employee Admits Being Previously Unauthorized 

The law does not require termination if the employee is now authorized. 
 
Timeframe for Employees to Present Alternative Documents 
 
There's no hard and fast rule. However, reasonable time should be allowed based on various factors. 
 
What if an Employee Fails to Present Documents in Time? 
 
Examine the reason and document your decision. Discrimination is not allowed. 
 
Is a Third-Party Auditor a Good Idea? 
 
Yes, but remember, you're still liable for their actions. 
 
Should You Trust Tips About an Employee's Work Authorization? 
 
Be cautious and do not act solely based on anonymous or unreliable tips. 
 
Can You Use the Social Security Number Verification Service (SSNVS) During an Internal Audit? 
 
No, it's not intended for this purpose. 
 
Conclusion 
 
Conducting an internal audit of Form I-9s can be a complex process but knowing how to navigate it can save you from legal trouble. Keep this guide handy as you work through your internal audit. 

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 don't 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.

8 Reasons it is Important to Consult an Environmental Scientist About Your Land Development Project. 

Written By: LAN Associates

Land use professionals are environmental scientists and engineers who play a vital role in the property development and construction process. Their expertise includes a comprehensive understanding of the intricate regulatory landscape governing land development and construction. They are well-versed in zoning ordinances, building codes, environmental regulations, and community planning considerations.

Before architects and engineers can design a construction project, land use professionals are sometimes needed to help them understand the laws governing the parcel of land selected and the potential risks associated with building on it. In densely populated areas such as New York and New Jersey, ensuring a seamless journey from concept to completion is paramount. Below are eight ways in which a land use professional can help ensure your land development project proceeds smoothly.   
   
8 Ways Land Use Professionals Help the Land Development Process

1) Land Use Professionals Help Navigate Regulations
Land development is subject to a myriad of regulations that can vary greatly from state to state and town to town. A land use professional is a local expert who understands these regulations and uses their expertise to ensure your project aligns with current environmental regulations which can include flood hazard areas, riparian zones, wetlands, transition areas, planning areas such as the Highlands, Pinelands, Canal Zones as well as Coastal Zones and Waterfront Development.

2) They Help Maximize Your Site’s Potential
Engaging a land use professional can help you maximize the potential of your building site. As scientists and engineers, they have the ability to analyze the possibilities and limitations of your parcel of land. Their insight is important to understanding how to best utilize the land’s unique features while mitigating challenges and ensuring optimal space usage. Oftentimes sites that appear to be developable are overwrought with regulations. Wetlands are not always wet; flood hazard areas are not noticeable, and planning areas are held to strict rules. Plus, the rules are constantly changing with new information and political shifts. For example, the FEMA Flood Maps have not mapped all watercourses in New Jersey and the wetland maps are assumed wetland areas. A land use professional’s job is to cross-examine existing conditions with all relevant regulations. 

3) Land Use Professionals Improve Project Efficiency
To be efficient in gaining project approvals, developers should consult with a land use professional who can help with everything from obtaining permits to coordinating with governmental bodies. Their knowledge of local protocols can expedite approvals, reducing delays and minimizing problems that can bottleneck project progress. Eventually, your project will go before a planning board and your land use team can make sure you are prepared.

4) Having an Environmental Scientist on Your Team Helps Build Community Support
Building community support is often vital to the success of development projects and land use professionals can act as a key resource for your development team’s community liaison. Their experience can be helpful in addressing concerns that local stakeholders have about your project’s impact on the local environment. 

5) Land Use Professionals Ensure Environmental Compliance
Land use scientists and engineers are vital to ensuring environmental compliance when building in areas with stringent environmental regulations. Land use professionals can help your project team navigate things like environmental impact assessments, wetlands protection, and sustainability guidelines. This is important not only to ensure that your project meets legal requirements but also that you are building in an environmentally conscious manner.

6) Land Use Professionals Help Mitigate Risks
By anticipating potential challenges and developing contingency plans, land use professionals can mitigate risks that could otherwise disrupt project timelines and budgets. Land use professionals balance protecting natural resources while integrating the needs of development. Land use professionals are knowledgeable about future changes in regulations. Since development can take years to complete, knowing changes that are likely to take effect can prevent unnecessary delays. Projects that are not in compliance with regulatory requirements can run into violations that can delay a project until compliance is met or suffer severe fines.

7) Cost Savings
​Engaging a land use professional early in the process is good for project efficiency, which can save on costs. Their expertise can help you avoid rework and costly changes mid-project. Oftentimes, a project is designed and brought to the local planning board, which then requires official documentation that the site is not in a wetland or flood hazard area. Official documentation from environmental agencies can take anywhere from around four months or longer to obtain, depending upon the difficulty of the project. Understanding the regulated areas early in the project allows engineers and architects to design accordingly, avoiding compliance requirements altogether.

8) Resiliency and Sustainability
A well-planned project that aligns with land use regulations is more likely to stand the test of time. Land use professionals can help ensure your project is built not only to withstand the resilience needed for today but also to withstand the expected impacts of climate change.  For example, weather patterns related to rainfall are changing and the areas that are considered at risk for flooding are changing as a result. Rules and regulations will start to reflect this fact as well. For example, in 2023, The New Jersey Department of Environmental Protection (NJDEP) made regulatory updates to the Flood Hazard Area Control Act Rules and Stormwater Management Rules. The updates make the regulations related to what areas are considered at risk of flooding significantly more stringent as a response to growing challenges presented by climate change and the need for resiliency.

What Should I Do if I Need a Land Use Professional?

​A land use professional is an essential partner necessary to ensure the successful execution of your construction project. Whether you are building a new school, renovating a municipal building, or designing a new athletic facility, it’s important to start your project off with a proper understanding of the land you are working with. LAN Associates has a dedicated team of land use professionals who can help you determine what you need to know about a parcel of land to begin your project’s development.    

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