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FMG Law Blog Line

Archive for August, 2017

USICS Raises the Bar on Entry Level H-1B Visas

Posted on: August 31st, 2017

By: Kenneth S. Levine

Companies that employ H-1B workers should be aware that USCIS has greatly elevated the scrutiny of “entry level” H-1B visa cases. Since April 2017 FMG Immigration Attorneys have advised clients that USCIS has telegraphed a clear intent to apply a stricter level of legal scrutiny to all H-1B visa cases. It is now apparent that one tactic to carry out this objective involves a novel legal argument that a “level 1” salary wage cannot qualify a position as a “specialty occupation.” Immigration Law practitioners across the U.S. have reported receiving this type of Request for Evidence (RFE) over the past few months.

In these RFEs USICS will generally summarize DOL’s “Level 1” regulatory definition and then argue that the entry wage level means that the sponsored position is not “specialized” or “complex” enough to merit an H-1B approval. Previously, for entry level H-B positions, USCIS would usually cite the Occupational Outlook Handbook in advancing an argument that the employer’s educational requirements did not qualify the position as a “specialty occupation.”

It is clear that USCIS has now adopted an internal policy that all level one H-1B cases will be treated as legally insufficient. FMG Immigration Attorneys are currently devising legal strategies to address this issue. It is expected that this trend will continue for some time and that ultimately the Agency’s “level 1” legal theory will be aggressively challenged in Federal Court.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

With DOL’s Overtime Rule Still in Limbo, What Should Employers Do Now?

Posted on: August 31st, 2017

By: Paul H. Derrick

As most employers know, the U.S. Department of Labor announced, during the Obama administration, that it was rolling out new standards for determining when employees are entitled to be paid overtime for all time worked beyond 40 hours in a work week. The so-called “overtime rule” or “white collar” exemptions would have required employers to pay certain executive, professional, and administrative employees a salary of at least $913 each week in order to make them exempt from the overtime requirement.

But in late 2016, a federal judge in Texas enjoined DOL from implementing the new rule anywhere in the country, finding that the DOL lacks the authority to set any salary test at all. Meanwhile, the underlying case continued to progress between the parties to the lawsuit. DOL appealed the ruling to the Fifth Circuit Court of Appeals, but it asked only that the court overturn the judge’s finding that the agency lacks the authority to set a salary test. It did not ask the appeals court to stay the overall case.

Then, in July of this year, the “new” DOL, headed by a Trump appointee, announced that it was seeking public input on ways to revise the Obama administration’s overtime rule. That process remains ongoing, with any possible modification of the rule unlikely until at least late 2018. In the meantime, the Fifth Circuit is scheduled to take up DOL’s appeal during oral arguments on October 3, and a decision could come within just a few months.

Wondering what that decision might be is causing employers a good bit of anxiety these days. On the one hand, the Fifth Circuit could affirm the injunction and maintain the status quo, which would give DOL time to come up with a new rule, but one that might not necessarily be allowed to use some variation of the traditional salary test. On the other hand, the court could decide that DOL does have the authority to establish a salary test and modify or dissolve the injunction, thus paving the way for the Obama-era rule to take effect long before a replacement rule is finalized by the Trump DOL.

That latter scenario, in turn, could put both DOL and employers in a bind. DOL would have to figure out whether and how to implement and enforce a rule it already has announced it plans to change. Employers would have to assess the risk of complying or not complying with a rule that almost certainly will change within the short term. If they were to comply, any new rule that were to come along later could have a significant financial and operational impact on them. If they did not comply, even if DOL decided not to enforce the Obama rule, they could still face legal liability from employees who sued because they were not being paid under the standard set by the Obama rule.

Confusing, isn’t it?

While there are no easy answers for employers, there are a few things to keep in mind to minimize any downside risk:

• In all cases, cap employees’ hours to avoid the possibility of overtime violations during any period when the Obama rule is in place and the Trump DOL is coming up with a new rule.

• For employers who had already made and carried out changes in anticipation of the Obama-era rule going into effect, stick with those changes and wait to see what happens next. There is little to be gained by reversing those changes right now, and any potential gain could be outweighed by disruptions in the workplace and in employee morale.

• For employers who were ready to carry out changes in order to comply with the Obama rule but had not yet put them into effect at the time the rule was enjoined, keep the changes on hold until there is greater certainty about whether, and when, the new regulations will ever become effective.

• For employers who had not yet done anything, simply keep waiting and seeing what the future brings.

We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Paul Derrick at [email protected].

Get Ready for In Person Interviews For All Green Card Applicants

Posted on: August 30th, 2017

By: Layli Eskandari Deal

In October 2017, U.S. Citizenship & Immigration Services (USCIS) will start conducting in-person interviews for all green card categories, including employment-based cases. Previously, most employment-based green card cases were exempt from in-person interviews and were reviewed and adjudicated at a Service Center. This change is a direct result of the Executive Order signed by President Trump in March. USCIS has stated that the interview process is a means to improve the detection and prevention of fraud.

In-person interviews are common in family-based cases. As USCIS phases in the new cases for interviews, we can expect long delays at USCIS Field Offices where these interviews will take place.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Employers Don’t Have to Report Pay Data on EEO-1 Form

Posted on: August 30th, 2017

By: Paul H. Derrick

As we previously reported, the U.S. House Appropriations Committee put the future of the Equal Employment Opportunity Commission’s revised Form EEO-1 in doubt by inserting a rider into the annual budget proposal that would prohibit the EEOC from spending any funds on its plan to collect pay data from employers on the new form. The Office of Management and Budget now has taken things a step further.

Yesterday, OMB informed the EEOC that all efforts to implement the pay data reporting requirements must immediately cease. The revised EEO-1 would have required all businesses with 100 or more workers to submit pay data by gender, race, and ethnicity on their forms. OMB’s directive to the EEOC to stand down, however, is based on its concern that “some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

The traditional portions of the EEO-1 form that collect data on race, ethnicity, and gender by occupational category will remain in effect. Employers should plan to comply with the reporting requirements by the filing date of March 2018. Instructions are at:
If you have any questions or would like more information, please contact Paul Derrick at [email protected].

Delaware Amends Data Breach Notification Law

Posted on: August 29th, 2017

By: Kacie L. Manisco

On August 17, 2017 Delaware Governor John Carney signed into law a bill amending the state’s Date Breach Notification Statute, marking the first significant change to Delaware’s data breach notification law since 2005. The amendments, which will go into effect on April 14, 2018, bring significant changes to how covered entities must prepare for and respond to data breaches.

Reasonable Data Security: Any “person” that conducts business in Delaware and “owns, licenses, or maintains” personal information shall “implement and maintain reasonable procedures and practices” for the protection of personal information collected or maintained in the course of business. The definition of “person” has been expanded to include any business form, governmental entity, “or any other legal or commercial entity.”

Definition of Personal Information: The amendment expands the definition of “personal information” to include a Delaware resident’s first name or first initial and last name in combination with any one or more of the following that relate to the individual: (1) Social Security number; (2) driver’s license number or state or federal identification card number; (3) account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to a resident’s financial account; (4) passport number; (5) a username or email address, in combination with a password or a security question and an answer that would permit access to an online account; (6) medical history, medical treatment by a healthcare professional, diagnosis of mental or physical condition by a healthcare professional, or DNA profile; (7) health insurance policy number, subscriber identification number or any other unique identifier used by a health insurer to identify the person; (8) unique biometric data generated from measurements or analysis of human body characteristics for authentication purposes; and (9) an individual taxpayer identification number.

Breach Notification: Delaware’s amended data breach law also now requires that notification be provided to residents affected within 60-days of discovery of the breach, unless a shorter time is required under federal law or a law enforcement agency has made a request that notice be delayed. Prior to this amendment, Delaware’s statute, similar to the data breach statutes of a majority of states, only mandated that disclosure of a data breach be made in the “most expedient time possible” and “without unreasonable delay.”

The amendment further clarifies that covered entities are not required to provide notice if an investigation reveals the breach was unlikely to result in harm to the affected residents. The amended law also does not require notification for the breach of encrypted data, unless the breach includes an encryption key that the organization reasonably believes could render the encrypted information readable or useable.

Attorney General Notification and Enforcement: Additionally, covered entities will now be required to notify the Delaware Attorney General if a breach affects more than 500 Delaware residents. The prior version of the law did not require regulator notification.

Credit Monitoring: Delaware now joins California and Connecticut in mandating covered entities offer individuals affected by a breach of security involving Social Security numbers at least one year of free credit monitoring services unless.

As we have discussed before, these changes highlight the importance of being prepared ahead of time before a breach occurs, which includes having data breach response plan in place that will help you timely comply with notice obligations like these. We have created our FMG Cyber Toolkit to help our clients for this very reason. Please contact one of our Cyber, Data Security, and Privacy practice group attorneys for more information about developing a plan for your organization.

If you have any questions or would like more information, please contact Kacie L. Manisco at [email protected].