Updated Video sent to clients and friends of the firm - 90-Day Waiting Periods and Full-Time Employee Status Under New Health Care Reform Guidance - Looking to 2014 - key implementation concerns/steps.
Updated Video sent to client and friends of the firm - HR Compliance Calendar Complete Modifications (thanks to your very own government agencies) :)
Video sent to clients and friends of the firm - Health Care Reform after the Supreme Court Decision - where do we go from here and key implementation concerns/steps.
The H-1B Category: Timing, Fees and Other Issues By Berardi Immigration Law
Also available at: http://www.berardiimmigrationlaw.com/services/work-in-the-united-states/the-h-1b-category-timing-fees-and-other-issues or the main firm web page by clicking here.
Wednesday, 04 April 2012 05:50
The H-1B is designated for individuals who work in a "specialty occupation." This term has been defined by Citizenship & Immigration Services (“CIS”) as a position that requires both the theoretical and practical application of a body of highly specialized knowledge and traditionally requires a Bachelor’s degree.
H-1B status is granted for an initial period of three years and can be extended for an additional period of three years for a total of six. Exceptions may apply depending on an individual's immigration circumstances. Filing fees can range from $1,525 to $2,575 and additional government fees may be incurred if the applicant requires a nonimmigrant visa. Payment of these fees may be negotiable between employer and employee; however the certain fees must always be paid by the employer.
The H-1B visa category is subject to an annual numerical limitation, referred to as the "cap." The cap is set to 65,000 for fiscal year 2013 which begins on October 1, 2012 and there is an additional 20,000 allotted for those with Master’s degrees. CIS began accepting new, cap-subject H-1B petitions on Monday, April 2, 2012. While it is impossible to predict how quickly the cap will be reached, there have been years when it has been filled in as quickly as a few days. Therefore, it is best to gauge personnel needs and file as early as possible. Certain employers are "cap exempt" and the cap does not apply to those individuals currently holding H-1B status who seek to extend their status or change employers.
To demonstrate that an individual qualifies for H-1B status, a petition must be prepared and properly filed which includes a detailed summary of the employer-petitioner, beneficiary’s qualifications, and comprehensive supporting documentation. Additionally, before a petition can be filed, there are several time-sensitive requirements which must be completed. Employers must submit a Labor Condition Application ("LCA") with the Department of Labor's iCERT system which in turn verifies their Federal Employer Identification number ("FEIN"). This process takes approximately two to four business days. The LCA must then be filed for the proffered position. Certification of an LCA can take up to seven business days. It is important to plan ahead, as H-1B petition preparation can often take at least two to three weeks.
CIS may conduct unannounced worksite visits which are conducted through their office of Fraud Detection and National Security ("FDNS"). These audits are conducted to verify basic facts relevant to the H-1B petition as filed. In 2010, approximately 25,000 worksite visits were conducted. It is imperative that employers maintain complete and accurate Public Access Files for all H-1B employees, ensure that there is an I-9 on file for every employee, enroll in DHS's E-Verify program, and have a designated "go to" person in the event of an unexpected site visit.
It should be noted that the beneficiaries of approved H-1B petitions cannot begin work until October 1st. Since there may be up to a six-month "gap" between the time of filing and employment eligibility, it is important to plan ahead with respect to resources, maintenance of status in the U.S. and work authorization.
For more information and articles on immigration law issues and topics, visit the website for Berardi Immigration law here.
New York State (NYS) Marriage Equality Act -Executive Summary
We will continue to update as we receive additional information. This means it is a "work in progress" so please excuse any typos! As always, this is not legal advice.
1. Generally, New York will recognize as valid a marriage without regard to whether the parties are the same sex (gender) or different sex (certain exceptions apply involving religious organizations).
2. All gender-specific language or terms must be considered gender-neutral with regard to how the government treats rights and responsibilities relating to marriage.
3. Effective July 24, 2011 (30-days after signed into law).
4. Employer policies/procedures and benefit programs (unless governed solely by ERISA should be examined and may be impacted by this modification). ERISA has a broad preemption provision that arguably may preempt the new NYS Marriage Equity Act if the program is governed solely by ERISA and no exceptions apply.
5. The most common example of certain benefits exempted from ERISA are certain insurance coverages (even if part of a wrap program including self-insured benefits). However, it appears at this time that a policy issued/underwritten in a state other than New York may not create an issue.
6. You may provide benefits to same-sex spouses even if not required to do so (e.g., plan/program covered solely by ERISA with no exceptions - such as a self-insured plan governed solely by ERISA).
7. If benefits are offered to same-sex spouses, there are Federal tax issues. For instance, certain tax exemptions and income exclusions are not allowed for an employee's same sex spouse (unless the spouse is otherwise a dependent of the employee). Accordingly, amounts would have to be included on the employee's W-2 statement.
8. If benefits are offered to same-sex spouses, you must ensure that insurance (general, stop-loss, etc.) is willing to provide coverage for the same-sex spouse or else the employer could end up having to self-insure/provide any promised amounts.
9. If benefits are offered (or not offered) to same-sex spouses, the employer should review (and amend as appropriate) such arrangements to conform to law and intended results.
10. Do not forget to address state tax issues - which are not clear at this point.
11. Address distinctions between (and make decisions concerning) opposite sex spouses, same-sex spouses and domestic partnerships.
12. Address distinctions between (and make decisions concerning) any differential treatment of same-sex domestic partnership versus opposite-sex domestic partnerships.
13. Plan Document Amendments due on or before July 23, 2011!
14. Policies and Procedural Changes to Consider (does not include all potential policies/procedures):
-Bereavement leave for married employees (e.g., death of a spouse, or the spouse's parent or other close relative). Most addressed this with the NYS CRL changes effective last year.
-FMLA (generally uses state definition of spouse as well as an analysis of recent opinion letters).
-Changes that if not made would result in claims of discrimination under New York's prohibition
against discrimination based on sexual orientation (also OPM interpretation if Federal employees are
involved and a preemption would likely not apply on the Federal level).
-Employee assistance programs, voluntary programs, wellness programs, etc.
-Employer work events.
-Tuition assistance/educational assistance programs.
-COBRA (which is a Federal statute and the NYS New York State "mini-COBRA" law (NYMC). The NYMC includes folks in a same sex marriage as well as their spouses in the category of "spouse" for state law purposes. The same cannot be said for Federal COBRA.
-Statutory and legal rights given to spouses.
-Procedures for a fair market value determination.
-Taxability distinctions when compared to eligibility.
-NY's Workers’ Compensation Law has provisions for death benefits to be payable to a worker's spouse (if the injury causes death). It appears MAE and the language for the WCL would include folks in same-sex marriages as “spouses” who may be entitled to such workers’ compensation death benefits.
15. Actions to consider:
-List out benefit plans/programs/practices and employment programs/policies/procedures/practices. You will have to scour your employee handbooks, plan documentation/amendments, summary plan descriptions/modifications, policies, procedures, forms, administrative procedures, etc.
-Determine which offer privileges/benefits to spouses. This includes an analysis of required versus desired changes.
-Determine if law automatically applies, excepted, preemption may apply, etc., if there are any potential discrimination claims based on current, intended and future offerings/policies/procedures.
-Address issues associated with imposing differing eligibility/administrative processes on same-sex spouses, same-sex domestic partners and/or opposite-sex domestic partners.
-For those where law is preempted/excepted, determine if want to provide benefit to same-sex
spouses even though not required to do so. Consider past history, employee population, company
culture, employee morale, cost and tax issues, what competitors are doing to remain competitive, are
multi-state sites at issue, employer specific issues, etc.
-Confer with your payroll department regarding taxation issues.
-Review and update spousal/domestic partner benefit policies and procedures.
-Make decisions and document (before July 24, 2011) and be sure to communicate to employees
(before July 24, 2011).
-Clearly communicate rules and any potential modifications to employees/families.
Not legal advice, but here are some pointers to consider based on the recent EEOC hearing on the ADA concerning medical leaves of absence and reasonable accommodations:
1. The employer must have discussions with the employee requesting/taking the leave, reasonable accommodations, etc.
2. Do not get comfortable thinking the EEOC will not sue - it will and it has (and been quite aggressive when it decides to initiate suit).
3. Always do an individualized assessment concerning leave and reasonable accommodations.
4. An automatic termination will not pass ADA scrutiny. You cannot have a base rule that an employee out for 2 months will be administratively terminated.
A FEW COLLECTIVE BARGAINING STRATEGIES 2011 (Among Others...)
1. Individual Employer Negotiations (standard situation, but be careful of information requests)
2. Multi-Employer Negotiations (one size does not always fit "all", see Retail Associates at 120 NLRB 388)
3. Bargain to Impasse and then unilateral implementation (see American Nat'l Insurance Co., & Fetzer Television)
4. Facility Closure - Possible Relocation (but address e.g., GC 91-9, PBGC Regs on 4062(e) and WARN issues)
5. Corporate Restructuring (aka double breasting)
6. Subcontracting (mid-term versus end of contract tactics and address need for close-down agreement)
7. Potential loss of Majority Status for Union - Decertification (RD versus RM petition, one man unit cases and special construction industry situations)
TOP 10 OSHA VIOLATIONS FROM 2010
1. Scaffolding, general requirements, construction (29 CFR 1926.451)
2. Fall protection, construction (29 CFR 1926.501)
3. Hazard communication standard, general industry (29 CFR 1910.1200)
4. Ladders, construction (29 CFR 1926.1053)
5. Respiratory protection, general industry (29 CFR 1910.134)
6. Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
7. Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)
8. Powered industrial trucks, general industry (29 CFR 1910.178)
9. Electrical systems design, general industry (29 CFR 1910.303)
10. Machines, general requirements, general industry (29 CFR 1910.212)
2011 END OF YEAR CONSIDERATIONS - Sent October 15, 2011
The Information Provided is General in Nature and Should Not Be
Relied Upon As Legal Advice. Legal Advice Cannot Be Given Without
Consideration Of All Of The Relevant Facts Related To Particular
Prior Results Do Not Guarantee a Similar Outcome