When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

On Tuesday, April 18, 2017, the Trump Administration signed an Executive Order (“EO”) titled, Buy American and Hire American.  The EO directs the US Departments of Labor, Justice, State, and Homeland Security to look into ways to reform the current H-1B process used by companies, but in particular, the hi-tech industry, to prevent fraud and abuse. Nothing in this EO’s wording changes or limits the current H-1B visa program.  Any future EO that tries to drastically change the current H-1B program will be met with industry opposition and legal action since much of the current H-1B program is statutory or defined by regulation.  Only Congress can change the laws, and any regulatory changes must first require legal vetting through proper notice and commentary procedures required by the Administrative Procedure Act.

The current H-1B visa program has been in place since 1990. Since that time, some of the program’s weaknesses and vulnerabilities have reared its ugly head.  Unfortunately many of these weaknesses have been exposed and manipulated by the ‘bad apple’ employers who refuse to follow the rules while using the process to hire only the lowest-paid employees.  Other noted weaknesses of the program include the arbitrariness and unfairness of the annual cap lottery; the inability to differentiate between employers that try to hire the best minds compared to those that recruit lower-paid, entry-level professionals; and the use by some employers to outsource their IT work overseas while having their U.S. counterparts train them only to terminate the U.S. workers thereafter.

There also is considerable xenophobia that H-1B visa workers are all taking US jobs or that H-1B workers are being paid lower than their US counterparts. The real facts show there are only 85,000 new cap-based H-1Bs issued every year and that the H-1B regulations require payment of wages commensurate with the local job force.  Unfortunately the use of the H-1B program by a small number of unscrupulous employers continues to generate bad press resulting in the current Administration’s EO focus on the H-1B program.

So what does this EO mean going forward? For the immediate future, nothing more than further scrutiny and press for possible abuses.  The Trump Administration lacks the legal authority to unilaterally change the H-1B program without Congressional legislation or proper promulgation of new regulations under the Administrative Procedure Act.  But it still can implement directives to prevent abuse and fraud, including increased policing through random onsite inspections confirming companies are adhering to the H-1B program; increased filing fees to pay for such onsite inspections; increased investigation of potential high-risk employment violators that do not follow the H-1B regulatory requirements to pay the required wages; and implementing a fairer type of selection system, other than a random lottery, for choosing new H-1B cases for each fiscal year.

In this regard, the added scrutiny of the H-1B program actually may work to the advantage of the ‘good employers’ that follow the rules and try to hire the “best and the brightest.” Much of recent H-1B focus and bad press are attributable to the foreign consulting companies that consume nearly half of the allotted H-1B numbers each year and are part of the U.S. outsourcing controversy.  By decreasing the number of H-1Bs issued to these companies, more H-1Bs will be available for employers that follow the rules and seek to fill truly hard-to-find positions.

The Immigration Law Group at Epstein Becker Green released a Special Immigration Alert that will be of interest to our readers.

Topics include:

  1. President Trump Issues Revised Executive Order on Travel
  2. USCIS Suspends Premium Processing for H-1B Petitions Starting April 3, 2017: All H-1B Petitions, Including H-1B Cap Petitions, Are Affected!
  3. Use of New Form I-9 Is Now Mandatory
  4. IRS Announces That Delinquent Taxpayers Face Revocation/Denial of U.S. Passports
  5. DHS Issues Two New Memos on Enforcement/Border Security

Read the full alert here.

On August 31, 2016, the U.S. Department of Homeland Security (DHS) issued a proposed rule which, if adopted in its present form, would ease the ability of foreign national (FN) entrepreneurs to temporarily enter the United States to invest in and grow start-up businesses.  At the present time, there is no temporary visa classification that permits FNs to make significant investments in new or growing businesses and then remain here to manage them.  In announcing this proposed rule, DHS indicated that it was intended to spur business growth and job creation at a time when the U.S. economy is posed to attract this type of capital.

To qualify under the proposed rule, a FN entrepreneur would need to establish that his or her admission to this country would provide a significant public benefit because he or she has created a new start up entity here within the past three years in which the FN has a “substantial” ownership interest and which has a significant potential for rapid growth and job creation.  Each application would be assessed on a case by case basis.  Under the proposed rule, a FN with at least a 15% ownership interest in the start-up entity would be deemed to have a substantial ownership interest.  Any start-up which had received at least $345,000 within the past year from qualified U.S. investor(s), or at least $100,000 in qualified government grant(s) or award(s) would be considered a qualified investment.

Under the proposed rule, qualified FN entrepreneurs would receive an initial stay of two years, and this could be extended for up to another three years if the startup continued to provide a significant public benefit, as demonstrated by an increase in investment capital and/or job creation.  Comments on the proposed rule are due by October 13, 2016.

Jang Hyuk Im
Jang Hyuk Im

Many high-tech companies are recovering from the recent April mad-dash to file H-1B cap petitions allowing for the continued employment of their foreign student graduate population.  Since the H-1B cap season closed abruptly following the first week of April, and USCIS has completed its computer-generated lottery determining which of the 200,000-plus petitions submitted have been accepted for the limited 85,000 H-1B cap slots available, employers now must turn their attention immediately to define viable alternative visa options for those foreign students not fortunate to be selected.

In the past, one of the alternatives for employers with F-1 work-authorized students who possessed Science, Technology, Engineering or Math degrees (so-called “STEM” degrees) not chosen for the H-1B cap lottery, was the ability for that student to file for the 17 month STEM extension of their Optional Practical Training (OPT) work authorization.  Until recently, the only requirements to secure this extension were:

  1. the student received a STEM degree from an accredited U.S. college or university that related to their employment; and
  2. their employer was registered with E-Verify, a US Department of Homeland Security-sponsored online employment verification database that is voluntary for employers to join.

This simple STEM OPT work authorization extension process changes dramatically on May 10, 2016, when the Department of Homeland Security’s (DHS’s) new STEM OPT regulations are scheduled to take effect.  These changes resulted from last year’s August 2015 Federal Court ruling that found procedural irregularities in the manner in which the prior STEM OPT rules had been promulgated.

Beginning May 10, 2016, any F-1 student wishing to apply for his/her STEM OPT extension must:

  1. have received their STEM degree from an accredited college/university that is Student and Exchange Visitor Program-certified (SEVIS registered);
  2. previously have been granted regular OPT work authorization that remains effective;
  3. apply for the I-765 employment authorization extension up to 90 days before the student’s current regular OPT period expires;
  4. apply for the I-765 employment authorization extension within 60 days after the student’s Designated School Official’s (DSO) enters into SEVIS the DSO’s recommendation to extend the OPT; and
  5. make certain their employer is registered in and actually using E-Verify.

To obtain the DSO’s OPT extension recommendation, the Student and his/her employer must complete and submit to the DSO the newly-required Form I-983 Formal Training Plan for STEM OPT Students.  The Form I-983 is a new application and requires both the student and employer to satisfy several never-before-seen, but now mandatory training and verification requirements.

Specifically, the Form I-983 requires the employer to certify under penalty of perjury that:

  1. it provides the OPT extension job opportunity commensurate with those of the employer’s similarly situated US workers in duties, hours, and compensation;
  2. it possesses sufficient resources and trained personnel to provide the appropriate training;
  3. the student will not replace any US worker;
  4. the program will assist the student in the student’s training objectives;
  5. it agrees to provide notification to the DSO regarding any material changes (i.e. pay, work hours, corporate changes, terminations, etc.);
  6. the employer and student agrees to prepare a detailed and goal-oriented formal training plan measuring the training achievements reached by the student related to their STEM degree; and
  7. the employer will provide annual reviews of the students’ formal training plan confirming the achievements reached under the program.

The next several months are going to be a brave new world regarding how to complete and submit the new Form I-983 Formal Training Plan for STEM OPT Students.  While one may consult  the recently established DHS website, that site provides only generalities regarding how to complete the I-983 Form.  Unfortunately it provides no specific samples or details regarding what is viewed as a proper formal training plan allowing for DSO certification.  The conjecture is that it may take several exchanges between the student, his/her DSO, and the employer before we can truly get a feel for how to properly prepare and complete the formal training plan allowing for DSO recommendation.

But the news is not all bad!  The new STEM OPT regulation also provides additional benefits.  They include:

  1. an increased work authorization period from the original 17 months to 24 months;
  2. allowing those currently under the already approved 17 month STEM extension to remain employed for the duration of that 17 month EAD extension and be allowed to file for an additional 7 month extension (provided several additional requirements are met—please speak to an EBG attorney regarding those details);
  3. extending the period of permissible unemployment to 150 days during the combined 36 months of regular and STEM OPT work-authorized period;
  4. permitting the student to remain employed for up to 180 days while the STEM OPT extension is pending if their current employment authorization expires;
  5. allowing students currently on a regular 12 month OPT period based on non-STEM degrees to be  the eligible to file for the 24 month STEM OPT extension if that student previously received a US STEM degree;
  6. allowing for a second 24 month STEM OPT application if the second STEM degree was received at a higher educational level then the first STEM degree.

Separately, the newly issued STEM OPT regulations has also added additional reporting and audit sections requiring the student and employer continually be on their toes in maintaining the STEM OPT training program.  These include:

  1. subjecting the employer to potential USCIS onsite inspections, including random inspections conducted without prior notice;
  2. requiring the student to complete six month and annual reporting to the DSO;
  3. requiring the student and employer to prepare a formal training plan for submission to and approval by the DSO with continued follow-up thereafter confirming the plan in being followed; and
  4. requiring the employer to report material changes to an already-approved training plan.

In summary, the newly-issued STEM OPT regulation gives many US high-tech employers an alternative to allow for the continued employment of their US STEM-degreed foreign national workers.  But, like any government benefit, this comes with a higher bureaucratic cost.

Immigration AlertOur colleagues in Epstein Becker Green’s Immigration Law Group recently published a special client alert: “USCIS Announces That the Congressionally Mandated H-1B Cap for Fiscal Year 2017 Has Been Reached.

Following is an excerpt:

On April 7, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the Congressionally mandated H-1B cap for fiscal year 2017 (“FY17”). This announcement applies to both the general cap of 65,000 and the additional cap of 20,000 for those with advanced degrees from U.S. universities.

Read the full alert here.

One of the featured stories on Employment Law This Week is the Department of Homeland Security’s (DHS) release of its highly anticipated final rule expanding and modifying the F-1 STEM (Science, Technology, Engineering, and Mathematics) Optional Practical Training (OPT) Program.

A 2015 district court case found procedural errors in the DHS’s program, putting the current employment and OPT extensions of thousands of foreign nationals in jeopardy. This new final rule is DHS’s response to the court’s decision. Among other changes, the new final rule extends the potential work period to 24 months and puts into place new, tougher requirements for employers to satisfy.

View the episode below or read more about the final rule in a Special Immigration Alert from Epstein Becker Green.

USCIS Announces That Current Form I-9 Remains in Effect Until Further Notice

Our colleagues in Epstein Becker Green’s Immigration Law Group recently published a special client alert: “USCIS Announces That Current Form I-9 Remains in Effect Until Further Notice.”

Following is an excerpt:

On March 31, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) announced that employers should continue using the current version of Form I-9 until further notice. USCIS guidance was required because the current Form I-9 bears an expiration date of March 31, 2016. The USCIS has proposed a new Form I-9 to replace the current version, but the agency has been unable to finalize it prior to the expiration date of the current form.

We anticipate that the USCIS will issue the new form within the next two to three months.

Read the full alert here.

Immigration Law GroupOur colleagues in Epstein Becker Green’s Immigration Law Group recently published a special client alert: “DHS Releases New F-1 STEM OPT Regulations.”

Following is an excerpt:

On March 11, 2016, the Department of Homeland Security (“DHS”) issued its long-awaited final rule (the “2016 Rule”) allowing F-1 graduates to extend their Optional Practical Training (“OPT”) period if they have a degree in science, technology, engineering, or mathematics (“STEM”) from an accredited U.S. university and their prospective employer is registered in and using the federal government’s E-Verify program to assess the identity and employment authorization of new hires. …

Each year, foreign student graduates of U.S. universities in F-1 status are allowed up to one year of OPT employment in fields related to their course of study after graduation. Since 2008, DHS regulations (the “2008 Rule”) allowed eligible F-1 graduates to obtain an additional 17 months of OPT as long as they had a STEM degree from an accredited U.S. university and their prospective employer was enrolled in and using E-Verify. This extended the total OPT period of authorized work authorization to 29 months.

On August 12, 2015, however, the STEM OPT program received a grave blow when a U.S. district court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, ____ F. Supp. 3d ____, 2015 WL 9810109 (D.D.C. Aug. 12, 2015) (slip op.) (“Washington Alliance”), rendered its decision to vacate the 2008 Rule unless DHS corrected procedural errors that were the basis for the district court’s decision. …

On March 11, 2016, DHS released the 2016 Rule in response to the Washington Alliance decision. The 2016 Rule revamped and substantially modified the F-1 STEM OPT program defined by the 2008 Rule. There are numerous positive changes in the 2016 Rule. …

Read the full alert here.


Jang Hyuk Im
Jang Hyuk Im

My colleague Jang Hyuk Im, a Member in the firm’s San Francisco office, authored an article in Law360 titled “Steps for Avoiding Unexpected Joint Employer Liability.” (Read the full version – subscription required.).  I thought you might find Jang’s article of interest particularly given recent media coverage about the outsourcing of domestic IT jobs and legal challenges facing employers.

Following is an excerpt:

The long-term expense and economic effects of maintaining a full-time workforce, including the added costs of health insurance, payroll taxes, social security, and overtime, force many employers to use contracting services to support their information technology, operational and administrative needs.

This has led to the loss of many domestic jobs and the outsourcing of much of the IT and other work they performed. Combined with the fact that these U.S. workers are being replaced by foreign workers employed by contractors who are leading high-tech firms, these decisions have generated a ripple effect of substantial adverse publicity along with both public and private litigation — as government agencies pay closer attention to the legalities of these arrangements in the immigration arena. The potential for immigration-based legal and public relations disasters can be great requiring employers to manage these contracted service relationships carefully.