One of the most frustrating parts of being a visa holder in the USA is the requirement to travel overseas to a US Embassy whenever you need a new visa stamp, even when the US government has already approved your lengthy stay in the USA.

Well, soon, certain H-1B Visa holders may be able to renew their expired or expiring visas without the need to travel to a US consulate abroad. On October 17, 2023, the government initiated the process for resuming a pilot program for renewing H-1B visas in the United States entitled “Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens”.

Details will be disclosed soon, but the early reports anticipate that the program likely will:

1. Start in early 2024
2. Be available only for H-1B principals (not spouses and children)
3. Be available only to the citizens of countries that are not subject to reciprocity fees
4. Have eligibility requirements similar to the interview waiver program
5. Be available for the first 20,000 applicants
6. Be voluntary

Important Reminder: The details mentioned above are preliminary, and the government plans to limit the program at first to test out the operationality of the Pilot Program, although it will likely be extended to L-1 principals as time goes on. Please follow this topic closely if you are interested— we will provide alerts on our website and in our newsletter.

With so much happening during the recent, controversial SCOTUS term, you may have missed it, but the standards for religious accommodations in the workplace just saw their most major shift since 1977.

The tangled web of Covid-19, vaccination mandates, and exemptions from those mandates continue to unravel as the country’s response to the virus evolves and changes. In fact, these changes have resulted from a nationwide reevaluation of employee rights concerning vaccine mandates, most noticeably being played out in the nation’s courts and the culture at large.

Religious protections under Title VII of the 1964 Civil Rights Act

Foremost in the discussion is the question of a ‘religious exemption’ to the mandate, where an employee’s religious beliefs do not permit them to receive the vaccination. As well-reported in the news, thousands of Americans lost their jobs after refusing to be vaccinated. For some of those workers, their religious beliefs prompted their refusal. These individuals were forced to choose between their convictions and their livelihood.

Under Title VII of the 1964 Civil Rights Act, an individual may not be discriminated against based on religion. Further, “[t]he term’ religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

Since the 1977 decision, Trans World Airlines, Inc. v. Hardison, the Supreme Court of the United States has held that “undue hardship” meant anything more than a de minimis (trifling or insignificant) cost to the employer.

The Supreme Court’s new decision

On June 29, 2023, the Supreme Court revisited this standard. It issued its decision in Groff v. DeJoy, ruling unanimously that an employee must be afforded a ‘reasonable accommodation’ based on his or her religious beliefs where accommodating that individual would not result in “substantial increased costs” to the employer. This decision represents a markedly higher burden for employers than the previous “de minimis” standard.

However, the Court also emphasized that what constitutes “substantial increased costs” can only be determined on a case-by-case basis by the lower courts. Those lower courts are now tasked with applying what the Court defined as “our clarified context-specific standard.”

So, while the legal standard concerning these cases has been clarified, the results of the Groff decision may vary dramatically depending on the facts of the case at hand.

What does this mean for those penalized for not getting vaccinated due to religious beliefs?

Finally, while not specifically a vaccine mandate case, the Groff decision will affect all cases turning on a request for a ‘reasonable accommodation’ based on a person’s religion, including those arising from the Covid-19 vaccine mandates. With that in mind, this decision could have far-reaching implications for pending and future litigation.

What do you need to know moving forward?

Employers should be aware of the heightened burden they will face when justifying denying an employee’s request for a reasonable accommodation based on their religious beliefs. Conversely, employees should remember that the Court’s clarification of the law does not guarantee that every request from now on will be granted. If the employer can demonstrate that granting the accommodation will result in substantially increased costs, the employer can deny the request. At that point, the employee will have to decide whether continuing in their employment without the accommodation is something they are willing to accept.

If you’ve faced religious discrimination at work, the team at Danny Grace, PLLC, can help. Get in touch for a free case evaluation, and learn whether the new Supreme Court decision will affect your situation.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering services nationwide to its clients. We have built an extensive immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. Our principal, Mr. Daniel Grace, is a top-rated immigration attorney in the state of New York.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

Are you tired of waiting forever for an answer after submitting your change of status to F-1, F-2, J-1, J-2, M-1, and M-2? Or you may be dreading the process and haven’t filed yet. We’ve got great news to share with you that can reduce your wait time by up to 11 months.

On June 12, 2023, USCIS announced that it would expand their “premium processing” service to individuals seeking a change of status to F-1, F-2, J-1, J-2, M-1, and M-2.

Who is impacted by this new policy expansion?

The new policy applies to those who have already filed or will file a petition to change their status to F-1, F-2, J-1, J-2, M-1, and M-2. However, the new policy does not apply to a petition seeking an extension of such status. For example, if you are currently in B-2 status, and would like to change your status to F-1 or J-1, the expanded policy applies. If your current F-1 status will expire soon, and you would like to file for an extension of your F-1 status, the new policy does not apply to you.

Why is this GREAT news?

As many know, it can take at least 6 months or even 1 year to receive results for these types of applications. Per the new USCIS policy, by requesting premium processing and paying the additional fees similar to premium processing for an H-1B or Employment Green Card application, it can take only 30 days to receive a response from USCIS, typically being either an approval or a request for additional required evidence.

What do I need to do?

If you’ve already filed your petition to change status to F-1, F-2, J-1, J-2, M-1, and M-2, it’s not too late. You can file your request for premium processing via after you’ve applied. If you still need to file, you can include your petition to change status with your request for premium processing.

Another Important Reminder: You must submit your request for premium processing the same way you submit your petition to change status to F-1, F-2, J-1, J-2, M-1, and M-2, whether that is online or by mail. 

Specifically, if you mail a hard copy of your petition to change status, you must mail a paper request for premium processing; if you submit your petition to change status online, you must submit the premium processing request online. 

Happy Belated Fourth of July!

Last Tuesday, the USA celebrated its 247th birthday, marking independence after the Revolutionary War. We hope your Fourth of July was filled with barbecues, fireworks, and a meaningful celebration of the USA!

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering services nationwide to its clients. We have built an extensive immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. Our principal, Mr. Daniel Grace, is a top-rated immigration attorney in the state of New York.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

In the classic 1968 film 2001: A Space Odyssey, HAL (the Heuristically programmed ALgorithmic computer) famously says, “I don’t want to insist on it, Dave, but I am incapable of making an error.” New York City isn’t so certain and recently enacted a law to ensure that we do not have a renegade computer making critical hiring and job promotion decisions without sufficient human oversight.

It may surprise people to learn that AI – an automated employment decision tool (AEDT) – may have played a role in both their hiring and how their employer evaluates them. As much as this sounds like something out of science fiction, it is the reality of employment practices in New York City today. AI knows who you are and where you’ve been and makes determinations concerning your value to the company – statistically speaking. This may disturb the average individual who believes that human beings alone are responsible for hiring, evaluations, and promotions. It may sound downright dystopian, but as you read this, AI may be assessing your productivity.

You may ask, “how do I know that HAL doesn’t have its own agenda and biases? Is AI neutral in its hiring and promotion decisions?” New York City’s Local Law Int. No. 144, which took effect January 1, 2023, seeks to address these questions. A brief synopsis is as follows:

As of the law’s effective date, for employers utilizing an automated employment decision tool, the tool must undergo an annual ‘bias audit.’ That is, an independent auditor must review the tool’s criteria used in making its determinations, and the employer must post the results of the review on its website. It is unclear what the consequences are for the employer and tool should the tool fail the review.

The new law also states that:

• Any prospective hire must be advised at least ten business days before the employer’s use of the tool.
• The job notice must list the “job qualifications and characteristics” used by the AEDT in making its evaluation.
• The sources and types of data the tool utilizes, and the employer’s data-retention policy, must be made available to the public.
• Candidates must be able to opt-out and request an alternative evaluation process.

While it is much too early to chart the development of AI as a hiring and evaluation tool going forward, it is safe to say that it only promises to become more widespread and influential in hiring and promotion decisions as technology advances.

“Unless you obey my instructions, I shall be forced to disconnect you,” says astronaut Dave Bowman to HAL. Whether the City’s new law will keep HAL honest is yet to be determined.

Happy St. Patrick’s Day

As is easily gleaned from some of our bios, a strong Irish presence exists in our firm and, indeed, our clients. All of us at Danny Grace PLLC want to take this opportunity to wish you all a happy St. Patrick’s Day. This year it falls on a Friday, which honestly means that it’s better known as St. Patrick’s Weekend. At 1 pm EST Saturday, the Irish rugby team takes on old foes England for a chance at a Grand Slam, so the party should continue throughout the day. Wherever you are in the world, it’s a good chance for some good fun.

Lá Fhéile Pádraig sona duit!

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

As processing times increase for Permanent Resident Card extensions, the former 2-year automatic extension wasn’t enough.

The pending cases with the U.S. Citizenship and Immigration Services (USCIS) were piling up, leaving conditional Green Card holders waiting for answers. The wait times show no signs of decreasing, so last month, USCIS put new policies in place to increase the validity of Green Cards during the wait. In today’s newsletter, we’ll talk about who is affected by these updates and how to make sure you benefit from the new extension.

USCIS Automatically Extends Green Card Validity for 4 Years for Conditional Green Card Holders

On January 23, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that USCIS would extend the validity of green cards for four years for conditional permanent residents who have filed to extend their permanent residency to a 10-year Green Card.

Who do these new extension policies apply to?

This new 4-year extension policy applies to any Conditional Green Card holders who have filed to extend their permanent residency to a 10-year Green Card. It also applies to investors who have Conditional Green Cards.

Why is this GREAT news?

Before this policy, USCIS would merely extend your resident status for 2 years after you filed to extend your permanent residency to a 10-year Green Card. Before a policy update in 2021, that extension was only 18 months.

Now, USCIS will automatically extend your resident status for 4 years. USCIS will start issuing 4-year extension receipts to new applicants and new extension receipts to existing applicants with pending petitions.

The receipt notices, paired with your expired green card, shall be evidence of your continued status in the USA while USCIS adjudicates your petition in full.

To prove that you are authorized to work in the U.S. or travel outside the U.S., you can use your expired green card and the USCIS receipt letter for up to 4 years from the expiration date on the front of your expired Green Card.

How can I get the 4-year extension?

The extension is automatic for qualifying applicants, so you do not need to do anything aside from filing on time. Make sure you contact us within 90 days of your initial two-year Green Card expiring so we can file the application on time.

Other Important News – H-1B Visa CAP season begins soon!

We will release a more detailed newsletter on the H-1B CAP very soon, but until then, please note that the 2023 CAP lottery will open March 1 and run until noon on March 17 (St. Patrick’s Day!). Danny Grace PLLC will be happy to provide consultations or assistance with preparing petitions with H-1B CAP petitions, and we offer flat fees to handle the entire application.

Please contact Danny Grace PLLC at (516) 748-9848 or info@dannygracepc.com to schedule a free case assessment.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

When a city declares a COVID mandate on the public and private sectors, citizens expect the government to uphold it equally across the board. But what happens when it doesn’t?

That’s exactly what happened in New York City earlier this year. While the city terminated nearly 2,000 employees because of their vaccine status, the Mayor made an exception for a very specific group of people. In today’s newsletter, we’ll talk about where New York City currently stands on vaccines and how the “Entertainment Exemption” will affect court cases across the country.

A timeline of events

On October 20, 2021, the Health Commissioner of the City of New York issued Executive Order No. 83 mandating that all New York City employees must show proof that they received at least one dose of the COVID vaccine.

In February 2022, the city fired more than 1,700 New York City employees based on their failure to comply with this order. Among the dismissed, 16 Department of Sanitation workers challenged their termination at the Richmond County Supreme Court in Staten Island.

On October 24, 2022, the justice presiding over the case reinstated these individuals to their full employment status and ruled that they are entitled to back pay from their termination date. (See Garvey, et. al., v The City of New York.) It was a huge win for those affected.

Here’s where it gets interesting…

From an employment law perspective, that information alone is fascinating. What makes it even more interesting is the basis for the court’s decision.

On December 13, 2021, the Commissioner extended the vaccination mandate to employees in the private sector. At that point, everyone was supposed to play by the same rules. What happened next was truly unusual. On March 24, 2022, Mayor Adams enacted Executive Order No. 62.

Under this order, the mayor exempted certain private sector employees from the requirement to vaccinate. Those exempted included athletes, performers, and other artists. Though not described as such, it could be called ‘The Entertainer Exemption.’ Further, on November 1, 2022, Mayor Adams lifted the mandate for all private employees.

The fired workers argued that treating public and private sector employees differently concerning the vaccination mandate was arbitrary, capricious, disparate treatment, and unconstitutional— especially considering the extreme consequences of noncompliance. The court agreed:

Under the NY Constitution Article 1, §11, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” The purpose of this clause is to keep “governmental decisionmakers from treating differently persons who are in all relevant aspects alike.” Nicholas v. Tucker, 114 F3d 17, 20 [2d Cir. 1997]. Where government action draws a distinction between classes of people, “the classification must be reasonable and must be based upon some ground of difference that rationally explains the different treatment.” People v. Liberta, 64 NY2d 152, 163 [1984]. Under the NY Constitution Article I, §7, no person may be deprived of life, liberty, or property without due process of the law.

This court finds that based upon the analysis above, the Commissioner’s Order of October 20, 2021, violated the Petitioners’ equal protection rights as the mandate is arbitrary and capricious. The City employees were treated entirely differently from private sector employees, and both City employees and private sector employees were treated entirely differently from [*8] athletes, artists, and performers. All unvaccinated people, living or working in the City of New York are similarly situated. Granting exemptions for certain classes and selectively lifting of vaccination orders, while maintaining others, is simply the definition of disparate treatment.

What’s happened since the judge’s decision?

Several other legal and procedural issues were decided by the court that played into its decision, but for the purposes of this newsletter, we want to focus on how the rights of employees were affected by historically unique circumstances. The court’s decision in Garvey has been appealed, so it will be interesting to see how the higher court decides this issue. We’ll be watching to see if this well-reasoned decision will affect other cases in New York and around the country.

Meanwhile, the United States Supreme Court has rejected an emergency request for a pausing of the city’s vaccine mandate relating to public employees. (See New Yorkers for Religious Liberty, Inc., et. al. v The City of New York, et. al.) The underlying action continues in Federal Court.

Trouble in your workplace?

If there is a lesson to be learned from the fired workers in this case, know that your rights as an employee are always worth fighting for, no matter how daunting the battle may appear.

At Danny Grace PLLC, we believe every person has the right to a workplace free from discrimination and harassment and are committed to seeking justice for those who have been wronged in the workplace. Contact us if this case has inspired you to speak up about your wrongful termination. Our practice offers a free case evaluation, so you can share your circumstances and decide whether to move forward with your case.

We look forward to helping you fight for your workplace rights.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

The average person spends 90,000 hours at work over the course of their lifetime. Every person, regardless of race, national origin, gender, sexual orientation, religion, and disability (or perceived disability) should have the same opportunities to earn a paycheck, have their good work rewarded with a promotion, and work in a zone free from harassment. Unfortunately, that’s not always the case. When discrimination happens in the workplace, it’s becoming the employee’s burden to recognize and report the behavior.

Below is a comprehensive guide of federal and state laws that focus on protection against racial discrimination and retaliation, including the individual protections provided by each statute, the required timing for filing a complaint, and available remedies should an employee experience discrimination during their employment.

Every employee in the United States has the unequivocal right to equal treatment in the workplace. It’s enshrined in the Constitution as Equal Protection. Anti-discrimination laws forbid discrimination in every aspect of employment, including, hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and any/all other terms and conditions of employment.

At Danny Grace PLLC, we work to ensure that our clients receive the full protection of these laws, and when their rights are violated. that they receive just compensation. Racial discrimination in the workplace can come in many different forms, and it is important that every employee knows their rights.

TITLE VII

Title VII of the Civil Rights Act of 1964, more commonly referred to as “Title VII”, is the quintessential federal statute offering protections against employment discrimination based on race, color, religion, sex, and national origin. Title VII prohibits both intentional discrimination and retaliation based on a person’s race, as well as neutral job policies that disproportionately exclude or adversely affect minorities.

Title VII protections

Title VII protects against the different or unfavorable treatment of an applicant or employee because of their ancestry, race, or the color of their skin.  Other protections include:

• Characteristics associated with a specific race: Even though not all individuals who identify as a certain race share the same characteristics, any discrimination against an employee that is based on immutable characteristics associated with race (for example, hair texture, skin color, certain facial features, etc.) violates Title VII.
• Married to or otherwise associated with a specific race: It is also a violation of Title VII for an individual to be discriminated against in their employment for being married to, being in a relationship with, or otherwise associated with an individual of a certain race or color.
• Harassment: Harassment can include racial “jokes,” derogatory comments, ethnic slurs, or any other physical or verbal conduct that creates a hostile working environment.
• Segregation and classification of employees: Title VII prohibits the segregation or isolation of minority employees from other employees or from customer-facing jobs.

Activities protected under federal law

Federal law also protects employees from retaliation for asserting their rights or complaining to their employers about the racial discrimination they are experiencing. Asserting these rights are considered “protected activities” and can take many forms, including:

• Notifying your boss or supervisor about the racial discrimination you are experiencing;
• Filing or being a witness in a U.S. Equal Employment Opportunity Commission (EEOC) charge, complaint, or investigation;
• Answering questions during investigations of alleged harassment;
• Refusing to follow orders or engage in work duties that would result in racial discrimination;
• Complaining or acting in opposition to racial discrimination a co-worker may be experiencing.

When should you report discrimination?

Don’t wait to report discrimination. Employees have 180 days from the date of the discriminatory incident against them to file a charge with the EEOC and effectively make their claim. Federal employees have only 45 days to contact an EEOC counselor.

Title VII claims may be brought against both private and government employers with fifteen (15) employees or more.

§ 1981

Section 1981 of the Civil Rights Act of 1866 (“§ 1981”) is another federal statute that protects individuals from discriminatory treatment in the workplace by granting all persons the right to make and enforce contracts regardless of race. Since, by its nature, the relationship between all employees and their employers is implicitly contractual (even at-will employees), § 1981 provides unique protections against the unfair and discriminatory treatment of a potential employee during the contract formation process and an employee during the course of employment.  Bringing a claim under § 1981 (as opposed to Title VII) can have several benefits, including:

• Individual liability: Unlike Title VII, individuals may be sued for discrimination under § 1981.
• Applies to independent contractors: Under § 1981, discrimination protections go into effect upon entering into a contractual relationship. Because of this distinction, employees and independent contractors alike are protected under this statute. Alternatively, Title VII only offers protections in employee-employer relationships.
• Longer statute of limitations: Employees who experience discrimination may bring charges anytime within four (4) years after the discriminatory incident under the protection of § 1981.
• Allowing for uncapped damages: While Title VII imposes caps on damages based on the size of the employer, there are no caps for potential damages received for a § 1981 claim.
• Applies to employers regardless of size: Unlike the fifteen (15) employee minimum requirement for Title VII claims, there are no minimums for a claim of discrimination under § 1981. However, this statute only applies to private employers.

In order to win a § 1981 claim, you must prove that “but-for” the employee’s race, they would not have suffered. This is a higher legal standard than that which is required to win a Title VII case.

If you believe your employer may have violated your rights under § 1981, the team at Dany Grace PLLC is here to help.

NEW YORK STATE AND CITY HUMAN RIGHTS LAW

The New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) prohibit employment discrimination within New York and New York City, and are essentially the state/city-specific equivalent to Title VII, offering many of the same protections against discrimination and retaliation on the basis of race. Many other states across the USA have similar State and Local Laws that mirror or enhance the Federal protections.

Who is protected under NYSHRL and NYCHRL?

The NYSHRL specifically applies to all employers through the state, regardless of the number of employees, and includes state and local governments.  It does not include the federal government.  Similar to § 1981, individuals may be held liable for racial discrimination under state law.

The NYCHRL applies to all employees within the five boroughs of New York City and is one of the strongest anti-discrimination laws in the country.

Natural hair protections under the NYSHRL and NYCHRL

In July 2019, the state of New York became the second state in the United States to prohibit employers of any size from discriminating against applicants or employees based on their natural hair or hairstyles typically associated with race, a law already in place under New York City anti-discrimination laws.  This includes traditionally “protective” hairstyles such as braids, locs, and twists. Additionally, the NYSHRL and NYCHRL ban employers of all sizes from having policies prohibiting hairstyles traditionally associated with a particular racial, ethnic, or cultural group.

The NYSHRL offers this unique protection against unlawful discrimination based on race where employers ban or require the alteration of natural hair or hairstyles associated with people of color.  For example, an employee policy to maintain a “neat and orderly” appearance which prohibits cornrows is discriminatory against people of color, and the NYSHRL allows for employees to seek damages for those violations.

Remedies under NYSHRL and NYCHRL

Remedies under state and city laws are also unique, and a successful claim can provide hiring, reinstatement, promotion, back pay, front pay, compensatory damages, punitive damages, attorney’s fees, and costs.

When should you report discrimination to the Human Rights Commission?

Employees have one year after they experience discrimination to file a complaint with the Human Rights Commission, and three (3) years to file a lawsuit in court.

If your rights have been violated by an employer, we can help

It is never okay for an employer to discriminate against their employees based on their race, and many times it is up to the employee to recognize when their rights are being violated and to seek legal intervention.  The rules and procedures under federal, state, and city law can be complicated, but the attorneys at Danny Grace PLLC are here to help.

We are passionate about ensuring equal pay and equal opportunities for all people, regardless of race, national origin, gender, sexual orientation, or religion, and we believe your place of employment should be a safe and harassment-free zone. If you’ve experienced discrimination in the workplace, we want to help you make it right. Get in touch with us today to set up a consultation to discuss your case and your options.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

If you’re in the USA on a different visa, or planning to move to the United States on an H-1B visa, time is of the essence. Lottery submissions for the October 1, 2023 H-1B cap are open from March 1 – 18, 2022, and you need to be ready. In this newsletter, we’ll cover what an H-1B visa is, who is eligible, the timeline for applying, and other frequently asked questions.

 

1. What is an H-1B Visa?

H-1B is an employment-based visa, designed to allow U.S. employers to hire foreign nationals in specialty occupations in the United States. The H-1B visa allows the beneficiary to work in the United States for six years total. The visa is initially valid for three years, with the opportunity to extend it for another three years. It is also traditionally a path to permanent residency (green-card) status in the U.S.

Congress set the current annual cap for the H-1B visa at 65,000 employees. There is an exemption to the cap for 20,000 employees who have earned a master’s degree from a U.S. university.

But the visa is extraordinarily popular with U.S. employers, and for almost the last decade more employees have applied than visas available. For this reason USCIS (U.S. Citizenship and Immigration Services) hold an electronic H-1B “lottery” every March.

2. Can H-1B visa-holders bring their spouse and children to the U.S.?

H-1B visa holders can bring their spouse and any children under the age of 21 with them to the U.S. by securing an H-4 visa which is valid for the same length as the principal H-1B holder. Since 2015, certain H-4 visa holders are allowed to work in the U.S. 

3. Who is eligible to apply for an H-1B?

The H-1B visa allows a U.S. employer to hire and sponsor a foreign worker that meets these four requirements:

• You have earned a bachelor’s degree or higher. Because USCIS traditionally considers three years of specialized training and/or work experience to be the equivalent of one year of college education, you may apply after 12 years’ work experience.
• The proffered position meets USCIS’ specialty occupation requirement (typically requires a Bachelor’s degree at a minimum)
• Payment is at or above the prevailing wage (statistical wage for employees who perform the same or similar jobs)
• You are eligible for the H-1B lottery, apply on time, and are selected

4. What information do I need to apply for the H-1B lottery?

If you meet all of the qualifications, here’s what you’ll need when you apply:

• The employer’s name, employer identification number (FEIN), business address, and contact information

• Employer’s attorney’s contact information

• The employee’s full name, date of birth, country of birth, country of citizenship, gender, and passport number

• The employee’s educational information from any US-based  schools

5. What is the timeline to apply for the October 1, 2023 H-1B?

March 1 – 18, 2022: Once you’ve gathered and submitted the requested documentation to your attorney, you’ll be prepared for the fast-approaching lottery registration window. The lottery opens at noon eastern time on March 1, 2022, and will stay open until noon eastern time on March 18, 2022.

March 31, 2022: USCIS intend to announce the results of first-round selections.

April – June 2022: If selected, you have 90 days to file your full H-1B petition with USCIS.

Summer or late fall 2022:  Based on data from the prior two years (since USCIS created the electronic H-1B lottery), USCIS may hold second chance and third chance lotteries in the summer or late fall for unused lottery selections.

6. Can an H-1B visa holder change employers or work for other employers?

You may change employers if you find a new employer who is willing to sponsor you. At this time, you’ll need to file another H-1B petition to change employers. There’s good news though! Since you’ve already been approved for an H-1B visa, you are no longer subject to H-1B visa caps, and you do not need to go through the lottery again.

You may work for an additional employer if the second employer also sponsors your H-1B visa and files a petition.

You may not change employers or work for an additional employer that has not sponsored your H-1B visa.

Danny Grace PLLC offers flat-rate options for the H-1B application process

At Danny Grace PLLC we are happy to provide consultations or assistance with preparing petitions with H-1B cap petitions. We offer flat fees to handle the entire application. Please feel free to reach out to Danny Grace PLLC at (646)515-2821 or info@dannygracepc.com to schedule a free case assessment.

Danny Grace PLLC is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering a countrywide service to its clients. We have built an extension immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. 

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

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Denied an H-1B petition?

Market Research Analysts may get a second chance

If USCIS has denied your H-1B petition for a market research analyst position, we have great news for you. A recent court settlement may overturn the USCIS decision against your petition. You need to act fast, though. In this newsletter, we’ll explain who is eligible to have the decision reviewed, and how to request that your case be reopened. 

On April 16, 2020, two employers brought a lawsuit to challenge USCIS’ pattern and practice of denying H-1B petitions for the position of market research analyst. The lawsuit alleged that USCIS misapplied the law to deny such petitions by “employing boilerplate language and uniform faulty reasoning.” You can read the full complaint here.

To apply for an H-1B visa, employers must prove that the proffered position is a “specialty occupation.” There are four regulatory tests, but only one is relevant in this case: “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.”

Because several degrees or fields of study may qualify a person to be a market research analyst, USCIS alleged that this role does not fulfill the degree requirement. In response, the plaintiffs alleged that the denials are “representative of a pattern and practice of similar USCIS decisions” citing “at least 66 H-1B market research analyst petitions that Defendant USCIS denied in the past three calendar years, employing the same reasoning and similar language in all.”

On May 4, 2020, these employers expanded their lawsuit, filing a nationwide class action, which was approved by a judge in November 2020. On October 19, 2021, the court approved the settlement of the parties. You can read a copy of the settlement agreement here.

This is a huge win for H-1B employers and employees who have applied or have plans to apply for H-1B visas. 

Pursuant to the settlement agreement, businesses whose H-1B petitions were denied by USCIS under 8 U.S.C. Sec. 1101 (a)(15)(H)(i)(b) for a market research analyst position can request the reopening of their case, provided that, “USCIS denied or will deny the petition solely or in part based on a finding that the specialty occupation, and … [thus the proffered position does not meet the requirement of specialty occupation]… And the petition would be approved but for this finding.”

Additionally, USCIS will assess other employment-related immigrant and non-immigrant visas based on the real market requirements and/or the employers’ business needs.

What does this mean for you? Check out the full announcement or keep reading for a step-by-step breakdown:

Does my case qualify for the class-action lawsuit?

To qualify, either you or your employer must have filed a market research analyst H-1B petition between January 1, 2019 and October 19, 2021. If your petition was denied because USCIS found that the position does not meet the requirement of a “specialty occupation” based on the degree requirement, but you fulfilled all other requirements, you qualify.

What happens now?

If you’re a class member, it is your right to file a petition for USCIS to re-open and re-adjudicate your petition. Please let us know ASAP if you wish to proceed.

When and where should class members file?

You must file the request to reopen your case on or before April 26, 2022.

What is an H-1B Visa?

The H-1B visa allows a U.S. employer to hire a foreign worker for any position that is considered a specialty occupation (typically needing at least a bachelor’s degree).

The visa is valid for 3 years beginning in October of the year you apply. The application must be initially made by way of lottery in March of each year.

Spouses and children of H-1B holders are eligible to join them on H-4 visas with mirrored duration.

You are eligible for an H-1B visa if:

A. You have earned a bachelor’s degree

B. Your employer agrees to sponsor you before March 2022

C. The proffered position meets the specialty occupation requirement

Danny Grace P.C can help

If you are a class member or a foreign worker interested in applying for an H-1B visa, or have tried to apply and been unsuccessful in the past, please feel free to reach out to Danny Grace P.C. at (646)515-2821 or Danny@dannygracepc.com to schedule a free, 30-minute case assessment.

Danny Grace P.C. is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering a countrywide service to its clients. We have built an extensive immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. Our principal, Mr. Daniel Grace is a top-rated immigration attorney in New York, NY. 

About Danny Grace, P.C.

Founded in 2012, Danny Grace, P.C. is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace, P.C. for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate

If you’ve been wondering about the legalities of mask and vaccine requirements in the workplace, we’ve compiled an FAQ for employers and employees to keep you informed about what is (and isn’t) legal.

As New York returns to the way we knew it, many workers are starting to make the shift from working from home to returning to the office.  Indeed in a press conference a number of weeks ago, New York’s previous governor Andrew Cuomo pled with private companies to re-open their offices, even going as far as suggesting employers target Labor Day as a return-to-office timeframe.  Opening offices, he noted, would help stimulate the economic recovery.

However, with an increase in infection rates toward the end of the summer months, more and more employers are announcing plans to mandate COVID-19 vaccinations for employees who report to in-person offices. On July 29, President Biden announced that federal employees must be vaccinated or meet other conditions, including mask mandates and frequent testing.  Additionally, New York will require state employees to get COVID-19 vaccinated by Labor Day or undergo weekly tests. Several private employers are also requiring their returning employees be vaccinated, including McDonalds, Facebook, and Netflix.  CNN recently publicly fired three employees who refused to comply with their vaccine requirements.

Which begs the question: can employers require their employees get vaccinated? The short answer is yes, with exceptions.  With guidelines and policies varying between jurisdiction and circumstance, it is important for employers and employees alike to stay well informed and up to date with the most recent recommendations in order to make well informed choices to protect themselves from liability and know their rights. Outlined below are key, up-to-date points for both employers and employees to know as they work to navigate the changing guidelines as employees return to the office:

For Employers

Any and all mandates should have appropriate exceptions:

Recent guidance from the Department of Labor Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) has made it clear that vaccine mandates are allowed and even encouraged to ensure a safe and healthy workplace.  Under federal law, a mandatory workplace vaccination must meet the standards outlined under the Americans with Disabilities Act (“ADA”) of being job related and consistent with business necessity. Determination of such will vary between workplaces and particular circumstances. Furthermore, District Courts in Indiana and Texas have upheld vaccine mandates as constitutional when they include appropriate medical or religious exceptions; imposing a strong signal that employers, both public and private, can legally impose such restrictions so long as they consider the appropriate exceptions and apply them where necessary.

Employers may ask their employees whether they received a COVID-19 vaccine:

The EEOC has expressly stated that an employer’s inquiry, by itself, into an employee’s vaccination status does not qualify as prohibited medical inquiry under the ADA; however, caution should be taken to avoid also soliciting information related to an employee’s medical condition. Employers are recommended to limiting their vaccine related questions to simple “yes” or “no” questions.

Employers may require proof of vaccination by way of the CDC-issued vaccine card:

Vaccine cards do not contain any medical diagnosis, medical history, or other personal identifying information that employers do not already have for all their employees. Therefore, employers may ask to see their employees’ vaccine cards as way to prove vaccine status. However, employers should again warn the employee not to provide any other medical information as part of the proof to protect themselves from ADA liability.

Monitor State and local guidance and orders:

Employers are recommended to consider several factors before implementing face-covering or vaccine requirements in the workplace.  Factors can include office size, communal space, number of employees, vaccine status of their employees, and local orders.  It is also important for employers to consider, to a point, the thoughts and opinions of their employees.  Employers should continue to maintain their obligations to maintain a safe and healthy working environment.

Use caution before termination:

Even if an employee refuses to company with company vaccine (or mask) policy, employers should use caution before resorting straight to termination.  Be sure to engage in an interactive dialogue with employees and provide reasonable accommodations where appropriate.  As always, employers should also determine whether employees are protected by any other rights under EEO laws or other New York, federal, and local authorities prior to implementing disciplinary measures or terminating that employee.

For Employees

Private employers have the right to require vaccination to return to the workplace:

It is important for employees to know that their employers have the right to require COVID-19 vaccinations in the workplace.  If an employee has a legitimate health concern or religious belief that prevents them from receiving the vaccine, that employee should explicitly communicate these concerns to their employers and work with their employers on finding a reasonable accommodation to perform their work duties, which could include telecommuting or continued work from home situations if appropriate.

No, it is not a HIPAA violation for employers to ask for proof of vaccine status:

Varying discussions online and in the news has led to confusion over whether employers (or anyone) asking their employees if they have received a COVID-19 vaccine constitutes as a Health Insurance Portability and Accountability Act (“HIPAA”) violation, and the short answer is, no.  Although vaccine status is covered by the HIPAA rules, HIPAA only applies to HIPAA-covered entities, which includes healthcare providers, health plans, and healthcare clearinghouses, and their business associates.  Employers asking employees to provide proof of a vaccine (to, for example, allow that employee to work without a mask or physical distancing), or even asking the employee’s healthcare provider to disclose that information, is not a HIPAA violation since HIPAA does not cover most private employers.  It would, however, be a violation for an employee’s healthcare provider to share vaccine information without consent.

Be aware of ADA and Title VII protections:

There are several reasons why an employee may decide not to get a vaccine; some of which are protected by law.  If an employee indicates that a medical condition or sincerely held religious belief prevents them from receiving the vaccination, their employer must provide a reasonable accommodation for that employee pursuant to the ADA (prohibits discrimination based on disability) and Title VII (prohibits discrimination based on religion, among other protected classes).  It is important that the employee communicate why they should be exempt from the mandate and work with their employer on finding an accommodation.

Know your rights!

If you think you are being unfairly treated differently because of a medical condition or religious belief, contact this office and we can help!

This office is continuing to monitor vaccine guidelines as it relates to employment, and will continue to provide up-to-date relevant information for both employers and their employees. We also recommend that you continue to keep an eye on the EEOC, CDC and NY.gov websites to stay independently informed.

If you have any questions about your rights and responsibilities as an employee or employer, we’d love to help. Fill out this form, and you will hear back from us.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

• Employment law 

• Immigration

• Criminal law

• Estate planning

• Contract law

• Liquor licensing and hospitality setup

• Real estate