Border Searches of Travelers’ Electronic Devices Remain an Evolving Area of U.S. Law

Last year, we provided an update on the Trump administration’s controversial ramp up of border searches and inspections of electronic devices of travelers applying for admission to the U.S. A variety of travelers have since challenged U.S. Department of Homeland Security (“DHS’), alleging fourth amendment violations. In fact, U.S. Customs and Border Protection (CBP) issued another directive earlier this year that further clarified their authority to search electronic devices.… More

Lottery and H-1Bs: “Give Your Dream a Chance”

“Give your dream a chance” is the state of New Jersey’s lottery slogan.  “Somebody’s gotta win” is the Massachusetts state lottery slogan.  In fact, each state has its own slogan, and these two just happen to resonate with me.  These slogans refer to each state’s random cash lottery options, where you can pay to play and, maybe if you are lucky, win.  For U.S. employers who want to employ global talent this year,… More

Is “Merit-Based” Immigration Code for Something Else?

U.S. Citizenship and Immigration Services (USCIS) hosted a DHS stakeholders call entitled “H-1B Cap and Filing Tips Stakeholder Engagementthat I participated in on March 6. It made me think about “merit-based” immigration and how we have not seen movement of any real proposals by the Trump administration – or his supporters in Congress.  I wondered what they have in mind for merit-based immigration and would it actually work for my clients,… More

SCOTUS Overturns Decision on Bond Hearings for Detainees Subject to Indefinite Detention

Do noncitizens detained for a long time while their cases are pending have the right to a hearing to determine whether they can be released on bond? This was the question posed in the Jennings v. Rodriguez case, a constitutional class-action challenge against federal immigration statutes requiring the detention of certain noncitizens while they defend their right to stay in the United States. The Supreme Court issued its 5-3 decision on February 27,… More

USCIS Tightens the Rules Related to H-1B Visas for Third Party Worksites

On February 22, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo making it more restrictive for H-1B employers who have their consultants work at third party work sites to fulfil client projects. The new policy memo updates the January 2010 agency memo that outlined the guidelines in determining “Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” which is also called Neufeld memo.… More

NLRB Vacates Hy-Brand Joint Employment Liability Standard Because of Board Member Conflict

On February 26, 2018, the National Labor Relations Board vacated its recent ruling in the Hy-Brand Industrial Contractors, Inc. case that had set a new standard for determining joint employer status. The action was not for substantive reasons. Instead, it was due solely to a conflict that arose because one of the Board members who decided the case, William Emanuel, had previously worked for a law firm that had represented a party in the case.… More

Crackdown on Business Travelers from Visa Waiver Countries

The Visa Waiver Program (“VWP”) allows citizens of 38 countries to travel to the U.S. for business or pleasure without having to obtain a formal visa by obtaining a pre-clearance known as Electronic System of Travel Authorization (“ESTA”). The ESTA registration is valid for two years and allows stays of up to 90 days per visit. Approximately 20 million visitors a year participate through this program. DHS automatically screens all ESTA information against numerous U.S.… More

What U.S. Employers Need to Know About the FY 2019 H-1B Visa Cap Season

It’s the time of year when U.S. employers are preparing for the upcoming H-1B cap petition filing season. While it appeared that USCIS was considering revising the H-1B lottery process for this fiscal year by adding a new online pre-registration step, USCIS recently confirmed that there are no changes to the process at this time. USCIS will begin accepting H-1B cap-subject petitions in the same manner as they have in years past,… More

Sick Time Not Subject to Massachusetts Wage Act

On January 29, 2018, the Massachusetts Supreme Judicial Court (SJC) held that accrued, unused sick time does not qualify as “wages” under the Massachusetts Wage Act. As a result, employees cannot maintain Wage Act claims against their employers based on the failure to pay employees for unused sick time.

The Massachusetts Earned Sick Time law does not require that employers pay employees for their accrued,… More

Seismic Business Immigration Policy Shift in the Works for 2018

New changes to H-1B Lottery; H-4 EADs on the chopping block; AC 21 H-1B extensions in trouble; and how to plan for it all
Changes to the H-1B Program and the H-1B Visa Lottery

The Department of Homeland Security (DHS) plans to revise the lottery process for the upcoming fiscal year. The announcement may come as early as next month. It proposes a pre-registration system for cap-subject H-1B visa applicants.… More