Immigration Law Alert - H-1B Visa Applications Can Be Filed On April 3

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (USCIS) will receive more applications than there are available H-1B visas. There is an annual cap of 65,000 for foreign national employees holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for employees with a U.S. Master's degree or higher. Because of the increased demand, in the past several years the USCIS has conducted a lottery to select an appropriate number of applications for consideration of H-1B eligibility.

To be selected in the lottery, employers must file on or about April 3, 2017 for employment beginning on October 1, 2017, the first day of the government's fiscal year. Traditionally the filing date is April 1;  however, that date is a Saturday this year, which results in USCIS accepting applications on Monday, April 3rd, 2017. Employers can file H-1B applications no earlier than six months in advance of the anticipated start date; therefore, April 3, 2017 marks the beginning of the race for obtaining an H-1B visa. The USCIS will announce in advance how many days following April 3 it will accept applications. Last year, the USCIS received nearly 236,000 applications during the filing period. Companies filing for students on Optional Practical Training (OPT) with work authorization expiring after April 1 secure an automatic extension of the student's work authorization until there is a decision on whether the case is selected, and, if selected, the extension continues until October 1, 2017.

Employers need to be aware that every H-1B application requires a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL). The DOL takes approximately one week to certify an LCA. If an employer has not previously filed an LCA with the DOL, it may take additional time for the DOL to verify the employer's Federal Employer Identification Number. Companies need to consider the lead time necessary to prepare an H-1B application.

It is important for companies to carefully prepare their applications as the USCIS has increased its scrutiny and regularly requests additional evidence from employers. Employers can work with counsel to develop detailed explanations as to why the employee qualifies for this visa.

Lastly, it is possible that USCIS may make changes to the H-1B visa program this year, given the change in the Executive Branch. As of the date of publication, no official changes have been proposed or adopted. In addition, there is a pending lawsuit related to the H-1B visa lottery procedure, which could have an impact on this year's H-1B visa process. Meyer, Unkovic & Scott will continue to monitor these matters and issue an updated alert if there are any changes.

For more information about H-1B Visas, or any other Immigration Law matter, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

MUS Announces New Partners

Meyer, Unkovic & Scott, a business law firm that serves Fortune 100 companies and individuals, has named the following lawyers partners:

Levi K. Logan is a member of the firm’s Employee Benefits, Corporate & Business Law and Private Clients Groups.  Mr. Logan’s practice is focused mainly on employee benefits. Mr. Logan has a significant background in providing advice for pension and retirement plans, profit-sharing plans, health and welfare plans and apprenticeship programs.  He received his J.D. from the University of Pittsburgh School of Law in 2007 and his B.S., cum laude, from the University of Pittsburgh in 2003.  He resides in West Mifflin.

Michael G. Monyok is a member of the firm’s Intellectual Property, Corporate & Business Law, and New Ventures & Entrepreneurs Groups.  In his practice, Mr. Monyok focuses on intellectual property matters and represents clients ranging from startups to large public companies in all aspects of intellectual property procurement, management and litigation.  Mr. Monyok’s work includes prosecuting domestic and foreign patent applications, obtaining trademark registrations, registering copyrights and helping clients protect their trade secrets.  He also helps startups and emerging businesses navigate the complex legal issues that often face new ventures.  He received his J.D. from the University of Pittsburgh School of Law in 2005 and his B.S. in Chemical Engineering and Engineering and Public Policy from Carnegie Mellon University in 2002.  He resides in Sewickley.

Tony J. Thompson is a member of the firm’s Litigation & Dispute Resolution, New Ventures & Entrepreneurs, Intellectual Property, Employment Law & Employee Benefits and Construction Groups.  He is an emerging business and trial attorney.  For the past decade, Mr. Thompson has counseled clients on a variety of business matters and provided representation in a number of business disputes, including cases involving breach of contract, trade secrets, infringement and misappropriation claims, products liability defense and complex commercial litigation.  He received his J.D. from the University of Pittsburgh School of Law in 2006 and his B.A. in Economics from Washington & Jefferson College in 2003.  He resides in Monroeville.

Immigration Law Alert - President Trump's Executive Orders on Immigration

In late January, the Trump Administration published three important Executive Orders on immigration.  Many of the subjects addressed in these Orders have practical ramifications for foreign nationals. While some are policy statements that will require congressional funding, others are projects that the Executive Branch can initiate and report back to the President.  The following is a brief summary of the Executive Orders' objectives:

• Reinstitute a program of engagement between the Department of Homeland Security and local law enforcement to deputize and train local law enforcement officials to perform certain Department of Homeland Security immigration-related functions with respect to identification and detention of foreign nationals who may be out of status in the United States.
• Call for an additional 10,000 immigration officers to perform immigration-related functions, a directive subject to Congressional appropriation. 
• Direct that funding to "sanctuary jurisdictions" be cut off.  Sanctuary jurisdictions are those that refuse to detain individuals targeted by the Department of Homeland Security for potential immigration violations. 
• Terminate the Priority Enforcement Program established by the Obama administration that prioritized criminal aliens for detention and deportation.
• Prohibit admission, for a period of 90 days, of any foreign national from countries known as the "countries of concern." These countries include Libya, Syria, Iraq, Iran, Sudan, Yemen, and Somalia.
• Suspend refugee admissions for 120 days.
• Discontinue the Syrian Refugee Program.
• Limit refugee admission for fiscal year 2017 to no more than 50,000 refugees. The number of refugee admissions is historically determined by the President, and the last administration had been admitting approximately 110,000 refugees per year.
• Direct the Department of Homeland Security to develop and implement a biometric entry/exit tracking system for all foreign travelers to the United States. 

If these Executive Orders are any indication of what is to come, expect further initiatives by the Executive Branch and proposals to Congress to curtail immigration to the United States. Here are some things to watch for in the long term:

• Businesses should be ready for Form I-9 compliance audits, including unannounced inspections in target industries such as hospitality, farming, and food production.
• Congress can require companies to clear all new employees through E-Verify, which is now optional. E-Verify is an internet-based system that determines the eligibility of employees to work in the United States.
• Employers can anticipate a thorough review of the H-1B program, including requirements for dependent employers, the number of available Visas, prevailing wage determinations, adjudications, and site visits.
• Colleges and students should expect increased scrutiny at Consular interviews, SEVIS tracking and enforcement, and proposals seeking to limit employment and training opportunities.
• Families may see increases in the income levels that are required to sponsor a spouse or other family member for immigration to the United States.

In light of these Executive Orders, it is critical for all U.S. employers to review immigration documents, understand the meaning of each document, and know the interplay between the several government agencies that oversee temporary and permanent immigration to the United States.

For more information about the President's Executive Orders on Immigration, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

February 2017 IP Roundtable

What
Meyer, Unkovic & Scott is proud to sponsor the Pittsburgh Roundtable for the American Bar Association's Intellectual Property Litigation Section. These quarterly meetings allow IP litigation practitioners to network with other attorneys and discuss topics of interest.

Lunch will be provided by Meyer, Unkovic & Scott.

Who
Practicing attorneys interested in intellectual property matters. Attendees need not be members of the ABA IP Section.

Topic
The Evolution of Nationwide Venue in Patent Infringement Suits

When
Thursday, February 16, 2017
12:00 Noon

Where
Meyer, Unkovic & Scott LLP
Henry W. Oliver Building, 13th Floor
535 Smithfield Street
Pittsburgh, PA 15222-2304
412-456-2800

How
Please RSVP by Monday, February 13th to: rsvp@muslaw.com

David G. Oberdick will serve as Moderator of this month's IP Roundtable.

Mr. Oberdick is Of Counsel in Meyer, Unkovic & Scott's Intellectual Property Group. He can be reached at 412.456.2881 or dgo@muslaw.com.

Pittsburgh Business Times Looks At Immigration Executive Order

Joel Pfeffer was recently interviewed for this article by the Pittsburgh Business Times, “Pittsburgh schools, lawyers discourage travel for those affected by Trump order.” Use this link to read more.

PA Mechanics' Lien Law Changes Now In Effect

Construction Law Client Alert

Joshua R. Lorenz
jrl@muslaw.com
412.456.2836

Amendments to Pennsylvania's Mechanics' Lien Law that took effect on Dec. 31, 2016 have new implications for owners, contractors and subcontractors. The requirements are a result of Act 142, which was passed in 2014 to establish a procedure for construction personnel to follow and a statewide web database (the Pennsylvania State Construction Notices Directory) where notices under the Mechanics' Lien Law can be filed.

No owner is obligated to register a project on the Directory. Only certain owners have the right to use it, because these amendments apply only to residential and commercial construction, repair or improvement projects totaling $1.5 million or more.

Owners of an eligible property do have an incentive to register projects. Contractors on registered projects now have additional duties, and subcontractors must take certain actions beyond what they currently do to preserve their lien rights or they forfeit their right to file liens for the services or materials they provide.

REQUIRED NOTICES

• Notice of Commencement: Required to be filed and posted by the project owner or its agent prior to the beginning of work or the furnishing of materials for the project. The owner and contractor must make "reasonable efforts" to ensure a copy of the Notice of Commencement is included in contract documents provided to subcontractors awarded work on the project. 
• Notice of Furnishing: Required to be filed by subcontractors to preserve their lien rights. A Notice of Furnishing must be filed with the Directory within 45 days after first working at or providing materials to the job site. A subcontractor failing to timely file a Notice of Furnishing waives its right to file a lien claim except in the event the subcontractor can prove its failure to file resulted from the owner or general contractor pressuring the subcontractor NOT to file, which can lead to civil or criminal action against the owner or general contractor.

The legislation includes two other types of notices (Notice of NonPayment and Notice of Completion) that can be registered in the Directory, but neither is required, nor has any substantial legal effect.

All affected parties should have their contract documents reviewed to ensure they are in compliance with the new amendments. Notably, the new amendments require specific notice language to be included in all contracts used on projects registered with the Directory. As outlined above, failure to comply could have significant consequences and create exposure to unanticipated liabilities.

For more information about the new Pennsylvania Mechanics' Lien Law changes for 2017, or any other Construction Law matter, please contact Joshua Lorenz.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Yearly Employment Law Check-Up

Elaina Smiley
412.456.2821
es@muslaw.com

Top Four Items to Review Now

The New Year is a good time for employers to review and update their employment practices. Proper policies and practices will reduce the risks of costly employment claims. Here are some items to review:

1. Review Job Duties for Salaried-Exempt Employees.

Although implementation of the revised Fair Labor Standards Act ("FLSA") regulations increasing the salary levels for exempt employees has been halted (for now), it is still a good idea to review the actual job duties performed by those classified as exempt from the payment of overtime. The FLSA contains a two-part test for an employee to be considered exempt, and employees must meet both tests: 1) payment of a fixed salary and 2) meeting the duties of one of the Department of Labor exemption categories. Misclassifying an employee as exempt when the employee should be paid overtime can be very costly. In cases involving FLSA violations, employees can get up to 3 years of back wages (overtime that was not paid) plus double damages and attorneys' fees.

2. Review Pay Practices for Hourly Employees.

Employers need to ensure that hourly employees are paid for all work time, which can include travel time, training, and short breaks. Furthermore, employers should be cautious when paying hourly employees bonuses. Certain bonus payments that are classified as non-discretionary must be considered in calculating an employee's overtime rate, and additional overtime payments need to be made for the period for which the bonus was applicable. "Comp time" is not permitted in lieu of paying hourly employees overtime for hours worked in excess of 40 per work week.

3. Review Policies and Procedures on Discrimination, Harassment, and Retaliation.

Every employer should publish and distribute policies forbidding all forms of harassment, discrimination, and retaliation against employees who report these issues. Harassment and discrimination should be barred not only based on sex, but other protected characteristics such as race, religion, age (40 and older), disability, sexual orientation, pregnancy, and national origin. The EEOC recently issued enforcement guidance that expands protection for employees against retaliation; therefore, policies should be reviewed for compliance.

4. Review Management Training on Handling Employee Reports and Requests.

When an employee makes a report or complaint of unlawful harassment to a manager, knowledge of the harassment is imputed to the employer even if the manager to whom the report was made fails to report it further or to take appropriate action. An employer will not be able to successfully defend harassment claims if the employer does not take prompt and effective remedial action in response to such reports. Also, managers need to properly handle employee accommodation requests under the Americans with Disabilities Act and employee leave requests under the Family and Medical Leave Act.

Should you need assistance conducting an audit of your human resources policies, please contact Elaina Smiley at 412.456.2821 or es@muslaw.com.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.