It is increasingly important for companies to understand the difference between employees and independent contractors and the consequences of each classification. This type of classification dispute, however, is not limited to drivers. Recently, agricultural, retail, contracting, consulting, health care, manufacturing, insurance, and financial services industries have seen a rise in worker classification audits. This raises the question, how are worker classifications determined in the context of tax and employment law?
If you have recently received a subpoena from a government agency investigating a customer’s financial dealings, you are not alone. As the alarm and uncertainty of the COVID-19 pandemic finally begin to calm, audits and investigations concerning the use of funds from pandemic relief initiatives such as the Paycheck Protection Program, Main Street Lending Program, and others are in full swing, sometimes followed by civil and criminal charges.
Recently, we have seen county magistrates in at least Linn, Wapello, Muscatine and Black Hawk Counties dismiss eviction actions based upon supposed insufficient service of the underlying notices that were the basis for the eviction. Landlords in these counties must take note of our new recommendations for service based upon these recent rulings and implement them when they encounter challenges in these counties.
The Department of Labor announced the impending publication of a final rule to amend H-2A temporary labor certification regulations to strengthen agricultural worker protections and to update the H-2A application and temporary labor certification as well as prevailing wage determination processes.
- November Visa Bulletin Includes Information on Extension of Religious Workers Category, Visa Availability in Employment Second Category
The Department of State released a bulletin for November 2022 that includes information on Extension of Religious Workers Category and visa availability in Employment Second Category.
President Biden issued a determination that up to 125,000 refugee admissions for fiscal year 2023 “is justified by humanitarian concerns or is otherwise in the national interest.” Regional allocations include Africa, East Asia, Europe and Central Asia, Latin America/Caribbean, Near East/South Asia and Unallocated Reserve.
- Employers Should Continue to Use Current I-9 Form Even After October 31 Expiration, ICE Announces I-9 Flexibility Extension
The Department of Homeland Security alerted employers on October 11, 2022, that they should continue using the current Form I-9, Employment Eligibility Verification, even after its October 31, 2022, expiration and “until further notice.”
- DHS to Supplement H-2B Cap with Nearly 65,000 Additional Visas for FY 2023, Worker Protection Taskforce Announced
The Department of Homeland Security, in consultation with the Department of Labor, plans to issue a regulation to make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2023, on top of the 66,000 H-2B visas that are normally available each fiscal year.
On October 12, 2022, the Department of Homeland Security announced joint actions with Mexico to reduce the number of people arriving at the Southwest border and “create a more orderly and safe process for people fleeing the humanitarian and economic crisis in Venezuela.” The actions include a new process to bring up to 24,000 qualifying Venezuelans into the United States and provide them with work authorization.
U.S. Citizenship and Immigration Services began implementing a new process for Venezuelans on October 18, 2022. As announced previously, the new process will provide a “lawful and streamlined” way for nationals of Venezuela who are “outside the United States and lacking U.S. entry documents to come to the United States.”
The Department of Homeland Security announced the designation of Ethiopia for Temporary Protected Status for 18 months. Only individuals who were already continuously residing in the United States as of October 20, 2022, will be eligible for TPS.
- Employer Reminder: E-Verify Operations Resume, Preferred Dates Released for Employee Visits to SSA to Resolve Mismatches
E-Verify reminded employers that operations have resumed and released preferred dates for employees to visit the Social Security Administration to resolve their Tentative Nonconfirmations. E-Verify said that the timeframes are recommended, not required, but that all employees must visit SSA to resolve their TNCs by September 29, 2023, or their cases will automatically get Final Nonconfirmations.
- CBP Is Discontinuing Passport Entry Stamps, Transitioning to Online I-94 Arrival/Departure Records Only; Mistakes Are Common
U.S. Customs and Border Protection has automated the I-94 process for most nonimmigrants arriving by air and sea. According to reports, this means that in many cases, foreign nationals no longer receive an entry stamp in their passports at ports of entry documenting their arrival.
The Department of Homeland Security’s final rule on Deferred Action for Childhood Arrivals took effect on October 31, 2022. Under the final rule, U.S. Citizenship and Immigration Services will continue to accept and process applications for deferred action, work authorization and advance parole for current DACA recipients. Due to ongoing litigation, USCIS will continue to accept applications but cannot process initial DACA requests.
U.S. Citizenship and Immigration Services announced that it is extending certain COVID-19-related flexibilities through January 24, 2023, to assist applicants, petitioners and requestors.
On October 25, 2022, the Department of Labor’s Office of Foreign Labor Certification issued a set of frequently asked questions, “Round 2: Job Order Filing and Processing,” associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.
U.S. Citizenship and Immigration Services no longer requires petitioners to submit duplicate copies of Form I-129, Petition for a Nonimmigrant Worker or of the supporting documentation, unless the agency specifically asks for it.
Two recent developments involving the Committee on Foreign Investment in the United States continue CFIUS’s trend of more active review and intervention in transactions that it deems detrimental to the national security of the United States.
Disputes regarding failures to disclose material facts are common in residential real estate transactions. A 1991 New York case dealt with the much less common issue of whether a home seller is required to disclose the presence of paranormal activity.
The United States Department of Commerce has recently issued new regulations that are already having a global impact on companies involved with advanced semiconductor chips. The new regulations seek to limit China’s access to these chips by restricting the ability of international companies and U.S. nationals to provide goods and services related to the design, fabrication and access to advanced semiconductor chips as well as computers and assemblies containing such chips.
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Recently, we have seen several instances of Iowa manufactured home community (MHC) owner-operators (landlords) not fully complying with the laws regarding statutorily required notices and reports that landlords must provide to their local county treasurers. This article sets forth all such required notices and reports. It is important that both MHC owners and their community managers are fully aware of and comply with these laws, particularly considering that landlords can be fined for noncompliance with such laws.
The Internal Revenue Service has announced the 2023 cost-of-living adjustments (COLAs) for benefit plans. All limits have increased.
- USPTO to Implement Shorter Response Period for Certain Office Actions Issued on or After December 3, 2022
For office actions issued on or after December 3, 2022, by the USPTO during the examination of a trademark application, an applicant will have three months to file a response instead of the current six-month period but will have an option to file a single request for a three-month extension to the response deadline upon payment of a $125 fee.
USCIS released updated fiscal year 2023 frequently asked questions on employment-based adjustment of status.
- USCIS Implements Next Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions
USCIS announced on September 15, 2022, that it is implementing the next phase of the premium processing expansion for certain petitioners.
Effective September 26, 2022, USCIS is automatically extending the validity of permanent resident cards to 24 months for lawful permanent residents who file Form I-90.
The Department of State's Visa Bulletin for October 2022, the first month of the new fiscal year, includes several updates.
DHS is amending its regulations, effective December 23, 2022, regarding whether noncitizens are inadmissible to the United States.
DHS plans to provide employment authorization for certain individuals covered by Liberian Deferred Enforced Departure.
DHS is extending temporary protected status for Myanmar, formerly Burma, for an additional 18 months due to a military coup in 2021.
- DHS Announces Extension and Re-Registration Process for Current Venezuela TPS Beneficiaries, Special Student Relief
DHS has taken several actions to provide relief for Venezuelans in the United States.
On September 1, 2022, the Security Assessment Measures for Outbound Data Transfers made by the Cyberspace Administration of China came into effect. The Measures supplement the provisions on data security assessments as set forth in the Personal Information Protection Law and other relevant laws.
USCIS announced that it has reached the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2023.
The Department of State’s Visa Bulletin for September notes a steady increase in both U.S. Citizenship and Immigration Services and Department of State demand patterns for employment-based visas during the fiscal year.
According to reports, visa delays, backlogs and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the U.S.
On August 16, 2022, U.S. Citizenship and Immigration Services issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).
The Department of Homeland Security has updated the COVID-19 vaccination requirements for beneficiaries paroled into the United States under the “Uniting for Ukraine” program.
On August 8, 2022, the Departments of Homeland Security and Labor published their semiannual regulatory agendas, which summarize projected and existing regulations.
The Department of Labor's Office of Foreign Labor Certification has released public disclosure data and selected program statistics for Q3 of fiscal year 2022 and H-2B Foreign Labor Recruiter List for Q3 of FY 2022.
The Department of Homeland Security announced a final rule to "preserve and fortify" the Deferred Action for Childhood Arrivals policy for certain eligible noncitizens who arrived in the United States as children.
The Executive Office for Immigration Review announced that it has recently been notified of phone calls that spoof the Arlington Immigration Court as part of a misinformation campaign.
With employees changing jobs in record numbers, it is now more important than ever for banks to ensure their information, property, and customers remain with them when an employee leaves.
- Does Sandbagging Hurt? – The Importance and Enforceability of Sandbagging Provisions in Bank M&A Deals
The term “sandbagging” carries many meanings. Bankers facing an upcoming acquisition, no matter whether they are acquiring or divesting, are likely to hear the term.
In early May 2022, the Consumer Financial Protection Bureau entered into a consent order with Bank of America, N.A. regarding BoA’s garnishment practices.
USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption.
On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it has rescinded its designation of the Administrative Appeals Office (AAO) decision in Matter of Z-R-Z-C-2 as an Adopted Decision and updated its interpretation of the effects of authorized travel by temporary protected status (TPS) beneficiaries.
E-Verify announced that as of July 15, 2022, employees whose E‑Verify cases are referred to the Social Security Administration (SSA) have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.
The Department of Homeland Security (DHS) has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension.
U.S. Citizenship and Immigration Services (USCIS) updated guidance regarding Afghan and Iraqi nationals seeking special immigrant classification.
The Department of Homeland Security (DHS) announced several measures to provide relief to Syrians in the United States.