Archive for the ‘Labor & Employment’ Category

Immigration Classifications and Visa Categories . . . and the H1-B Visa

Wednesday, June 11th, 2008

Those of us who’ve worked in the tech industry in Massachusetts constantly hear about H-1B visas. Right now, as during the Internet buildup in the late 1990s, we can’t get enough software engineers, so we hire qualified foreign nationals if we can, often via H1-B visas. An H1-B is a type of nonimmigrant visa that allows for temporary residence in the U.S. to work.

In fact, an H1-B is one of numerous immigration classifications and visa categories for nonimmigrants, beginning with A-1 (Ambassador; public minister; career, diplomatic or consular officer, and members of immediate family) and ending with V-3 and TPS (Temporary Protected Status). H1-Bs are used for hiring foreign nationals who will be employed in a specialty occupation or as fashion models of distinguished merit and ability. Specialty occupation means one has at least a bachelor’s degree in an area of specialized knowledge, such as law, mathematics, theology or the arts, among others. The number of H1-B visas is subject to an annual cap established by Congress.

More details on H1-Bs and how to apply are available at the U.S. Citizenship and Immigration Services (UCIS) website. Tara L. Vance at Holland & Knight has written an article, Hiring Foreign Nationals Without the Benefit of H1-B Visas, that discusses them in further detail, along with B-1, C, D, E and L-1 visas.

By the way, UCIS has a considerable number of forms available on its website, including Form I-9, which lists the documents that establish identity and employment eligibility to work in the U.S. Technical tip for HR departments: Keep your Form I-9s in a separate folder, so only they-and not the other employment documents-are accessible during a search to determine employment eligibility.

New Massachusetts Independent Contractor Advisory

Saturday, May 10th, 2008

Massachusetts employs a stricter standard than under federal law regarding whether an individual is an employee or an independent contractor. The Commonwealth first established its Independent Contractor law in 1990. Since then, it has been amended a number of times and, in 2004, significantly broadened.

Massachusetts uses a test in which three separate elements must exist in order for someone to be classified other than as an employee. On May 1, 2008, the Massachusetts Attorney General’s Fair Labor Division issued an advisory superseding the prior advisories on this topic and clarifying on how the three-part test is applied.

In contrast, the Internal Revenue Service used to use a 20-factor test that later was simplified into an 11 point test organized into three primary groups: behavioral control, financial control and the type of relationship of the parties. IRS Publication 15-A discusses these characterizations in detail, and this text provides an overview and information on related topics.

Massachusetts Mandates Mandatory Treble Damages for State Wage Violations

Tuesday, April 15th, 2008

The Commonwealth of Massachusetts just became the only state in the nation to set a strict liability standard for state wage and hour violations.  The new law makes awards of treble damages for all violations, with no exception or defense, even if they were inadvertent.

The law, which takes effect on July 13, 2008, increases the cost of doing business in Massachusetts.  Watch for an increase in employment-related litigation.  More information is available here and here.

Securities Offerings on the Internet

Wednesday, March 19th, 2008

In the 1990s, my colleague, Lou Turilli,* and I wrote an article for The National Law Journal about how the Internet might shape securities offerings. I followed that up with an article for Wall Street Lawyer, Securities Offerings Online By Small, Nonpublic Businesses. It specifically focused on whether small companies could viably offer and sell securities on their own via the Internet. I concluded that, “Clearly, selling securities online is a viable concept. Yet until fundamental issues such as the problem of gaining visibility, the lack of secondary markets, the arbitrary pricing and the disinterest of established investment bankers each are addressed, the opportunity for small businesses to raise capital in cyberspace will hold great promise as an idea, but be of limited practicality in the real world.”

I don’t think that my conclusion has changed. Distribution and pricing remain key obstacles for companies that want to promote their own online offerings. Marketing the securities is still a serious issue, and there are credibility concerns for the companies as well. Thus, serious companies will continue to pursue the traditional route.

* Lou and I practiced law together at Day, Berry & Howard. She recently was Vice President and General Counsel of Ryerson.