Customs and Border Protection Announces Interim Final Rule Increasing ESTA Fee
Department of Homeland Security Amends Rules Governing Electronic Signature/Storage of Forms I-9
State Department Issues Final Rule Regarding J-1 Trainees and Interns
August 13, 2010, H-1B Cap Count
Smartsoft Agrees to Pay $1 Million to Settle H-1B Visa Allegations with Department of Labor
DOS Issues September 2010 Visa Bulletin
On July 28, 2010, Judge Susan R. Bolton of the U.S. District Court for the District of Arizona issued a preliminary injunction that prevents the most controversial sections of Arizona’s new immigration law (SB 1070) from taking effect. While not finally deciding the constitutionality of SB 1070, the Court found that several of its provisions were likely unconstitutional because they were “preempted” by federal immigration laws and that the failure to issue the injunction would result in substantial harm to the public interest.
SB 1070 took effect on July 29, 2010, but many of the provisions that most angered opponents have been enjoined. These include:
On June 25, 2010, the Centers for Medicare & Medicaid Services (“CMS”) issued theProposed Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011 (the “Proposed Rule”).[1] Significantly, among its revisions are the proposed regulations implementing Section 6003 of the Patient Protection and Affordable Care Act (“PPACA”)[2] concerning the physician self-referral provisions of Section 1877 of the Social Security Act, commonly known as the “Stark Law.”[3] Specifically, the Proposed Rule outlines a proposed disclosure requirement for certain imaging services (the “Disclosure Requirement”) provided under the umbrella of the In-Office Ancillary Services Exception to the Stark Law.[4] Suppliers and providers of imaging services should consider submitting comments on the Proposed Rule to CMS in either the specified areas requested by CMS or the other areas of concern related to this topic. The deadline to submit such comments is August 24, 2010. Also, as indicated in the Proposed Rule, the Disclosure Requirement will take effect on January 1, 2011—one year later than the potentially retroactive effective date of January 1, 2010, specified in PPACA.
USCIS Redesigns Green Card and Issues Revised EAD
DOS Increases Nonimmigrant Visa Application Fees
DHS Eliminates Paper I-94W Arrival/Departure Record for Visa Waiver
May 21, 2010, H-1B Cap Count
DOL Unveils Online ‘Advisor’ Tool to Help Employers Comply with H-1B Visa Program Requirements
Class Action Lawsuit Challenges New Arizona Immigration Law
Poll Finds that Voters Want Congress to Move Forward with Immigration Overhaul
DOS Issues June 2010 Visa Bulletin
I. USCIS Redesigns Green Card and Issues Revised EAD
The Patient Protection and Affordable Care Act (“PPACA”) contains a provision that will significantly affect all types of health care manufacturers and providers.[1] Section 4203 of PPACA amends Title V of the Rehabilitation Act of 1973 (“Rehab Act”) by adding a new section that requires the Architectural and Transportation Barriers Compliance Board (“ATBCB”), in consultation with the Food and Drug Administration (“FDA”) Commissioner, to promulgate regulatory standards for medical diagnostic equipment used in physician offices, clinics, emergency rooms, hospitals, and other medical settings to accommodate the needs of individuals with disabilities. Particularly, the standards are intended to ensure that individuals with disabilities (a) have access to and use of the equipment, and (b) will independently be able to enter, use, and exit the equipment to the maximum extent possible. The medical diagnostic equipment explicitly mentioned in this provision includes examination tables and chairs, weight scales, and radiological equipment.
On May 20, 2010, the U.S. Department of Labor’s Office of Labor-Management Standards published its final rules implementing Executive Order 13496. See 29 CFR Part 471 (Notification of Employee Rights Under Federal Labor Laws)http://edocket.access.gpo.gov/2009/pdf/E9-2485.pdf. As a result, beginning on June 19, 2010, federal contractors and subcontractors that enter into new federal contracts, subcontracts, or modifications to existing contracts on or after that date will be required to post a detailed government notice (“Notice”) informing employees of their rights under the National Labor Relations Act (“NLRA” or “the Act”). These rights include not only the right to obtain union representation and to engage in collective bargaining but also, for example, the right to share wage and benefit information with co-workers and others. As the regulations make clear, Executive Order 13496 and the Notice are intended to promote collective bargaining, and along with it, union organizing activity. The regulations also provide direction on how and where the Notice is to be posted and communicated to employees, and explain how the Department of Labor (“DOL”) will enforce the posting requirements.
Recently enacted Vermont Senate Bill 88 (“S.B. 88“)[1] amends Vermont’s existing gift ban law, Vt. Stat. Ann. tit. 18, § 4631a (“§ 4631a“), and disclosure law, Vt. Stat. Ann. tit. 18, § 4632 (“§ 4632“).[2] Significantly, S.B. 88 requires manufacturers of pharmaceuticals, medical devices and biological products[3] to report annually to the Vermont Office of the Attorney General certain information related to “free samples of prescribed products provided to health care providers during the preceding calendar year.”[4] “Sample” is defined as “a unit of a prescription drug, biological product, or medical device that is not intended to be sold and is intended to promote the sale of the drug, product, or device,” including starter packs and coupons or vouchers that allow an individual to receive a prescribed product for free or at a discounted price. The first report is due by April 1, 2012, for the reporting period of January 1, 2011, through December 31, 2011.
The Patient Protection and Affordable Care Act1 and Health Care and Education Reconciliation Act2 (together, the “Act”) added the requirement that group health plans that cover dependents now cover them through the age of 26. In the first joint guidance issued from all three of the responsible government agencies, Interim Final Rules (the “Regulations”)3 have clarified and applied the requirement. However, employers may be surprised by some of the details added by the Regulations.
On May 7, 2010, the D.C. Office of Human Rights (“OHR”) issued its notice of intent to amend the current regulations for the D.C. Family and Medical Leave Act (“DCFMLA”). In large part, the proposed regulations comport with the federal regulations for the FMLA. However, the proposed regulations contain several additional and more burdensome requirements for D.C. employers, including expanding the DCFMLA’s coverage to include employees outside the District. Thus, if these regulations are enacted, D.C. employers will need to revise their current family and medical leave practices and procedures to ensure compliance with the law.
Joining Nebraska, New Jersey, Maryland, Minnesota, and Illinois, on May 5, 2010, Connecticut Governor Jodi Rell signed into law Public Act 10-12, “An Act Implementing the Recommendations of the Joint Enforcement Commission on Employee Misclassification” (“the Employee Misclassification Act”). The principal impact of the Employee Misclassification Act is to increase criminal and civil penalties on employers for misclassifying employees as independent contractors. Under current law, the civil penalty for misclassifying employees is $300.00 for each violation. The Employee Misclassification Act increases that penalty to $300.00 per day for each violation. Thus, if an employer misclassifies a worker as an independent contractor and continues that misclassification for one year, the civil penalty for this error would rocket from $300.00 to $109,500.00 ($300.00 per day times 365 days), a 36,500 percent increase. In addition, the Employee Misclassification Act makes the misclassification of workers as independent contractors a felony if done with the intent to harm the State with respect to workers compensation insurance payments or the Second Injury Fund.