Alerts Archive

As many Employers and Foreign Nationals are likely aware, the H-1B CAP Season for USCIS 2024 Fiscal Year rapidly approaches. On Friday USICS announced it will open H-1B CAP registration at noon (12PM ET) on March 1, 2023, and registration will run through noon (ET) on March 17, 2023. In light of the news, we recommend Employers and Foreign Nationals consider the following information as we prepare to register those who are eligible.

In response to a Lawsuit (Edakunni v. Mayorkas) filed on behalf of Spouses of H-1B and L-1 Visa Holders, USCIS has reached a settlement agreement which it will implement effective today, January 25, 2023.

On February 24, 2022, the Centers for Medicare & Medicaid Services (“CMS”) announced the redesign and renaming of its Global and Professional Direct Contracting model (“GPDC”), which was paused in March of 2021.  The model, now known as the Accountable Care Organization Realizing Equity, Access, and Community Health model (“ACO REACH”), was renamed in response to stakeholder feedback and to advance Administration priorities.  CMS also announced its cancellation of the Geographic Direct Contracting model. 

In mid-November a settlement between U.S. Citizenship & Immigration Services (USCIS) and the litigants in the Shergill v. Mayorkas lawsuit resulted in a change in USCIS policy regarding spousal work authorization.  Specifically, under the terms of the settlement, E and L dependent spouses would be work authorized incident to status. This means that they no longer would be required to apply for separate employment authorization documents after entering the U.S. 

On January 1, 2022, two Interim Final Rules (the “Rules”) that implement key aspects of the No Surprises Act (“NSA”) became effective. The first Interim Final Rule was initially issued by the U.S. Departments of Health and Human Services (“HHS”), Labor, and Treasury, and the Office of Personnel Management (collectively, the “Departments”) on July 1, 2021. The second, issued by the same agencies, was issued on October 7, 2021. Generally, the NSA, which was signed into law on December 27, 2020, (1) limits cost-sharing and prohibits balance billing in certain situations and (2) requires providers to provide good faith estimates (“GFE”) of charges to uninsured or self-pay patients. The NSA and the Rules also establish notice and consent requirements and dispute resolution processes in both instances.

On December 23, 2021, in consultation with the Department of Homeland Security, the Secretary of State authorized consular offices through December 31, 2022, to waive in-person interview requirements for certain nonimmigrant visa applicants.

As outlined in our earlier alert, there is now a vaccine requirement for foreign nationals seeking nonimmigrant entry to the United States after international air travel.  

The long awaited Presidential Proclamation rescinding the current COVID-19 travel bans was issued on October 25, 2021. The proclamation becomes effective on November 8, 2021 at 12:01 am EST and replaces the existing bans with a vaccination requirement for foreign nationals seeking nonimmigrant entry to the United States after international air travel. In addition, three Centers for Disease Control and Prevention (CDC) Orders on vaccination, testing, and contact tracing were issued as well as technical instructions to provide implementation details to the airlines and their passengers. Below is an overview of these orders and the technical instructions for implementation.

Overview: On September 9, 2021, the Biden Administration issued a variety of measures designed to promote COVID-19 safeguards and decrease the spread of the COVID-19 virus. Such measures included two Executive Orders and President Biden’s COVID-19 Action Plan, all three of which greatly impact employers of varying sizes and industries. The Plan and each Executive Order are discussed in more detail below.

On July 6, 2021, the Department of State (DOS) issued guidance stating that national interest exceptions (NIEs) issued in the last 12 months are being automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted. The extension applies to NIEs for travelers subject to Presidential Proclamations 9984 (China), 9992 (Iran), 10143 (Schengen Area, U.K., Ireland, Brazil, and South Africa), and 10199 (India). The official guidance from DOS can be found here. More information on the Geographic COVID-19 Related Travel Bans can be found here. 

When state and local governments began issuing shutdown and stay-at-home orders a little over a year ago, it was difficult to fathom how long businesses would be struggling to operate within the boundaries of the unprecedented restrictions. The economy has been hit hard across the board, with the U.S. travel and hospitality industry suffering an estimated $1.1 trillion in direct and indirect losses in 2020, hospitals and healthcare systems losing at least $323 billion in 2020, the NCAA and the four major U.S. sports leagues losing at least $14.1 billion, many major retailers declaring bankruptcy, and millions of small businesses expecting to fold in 2021 under the pressure of sustained business losses.

Extension of Presidential Proclamations 10014 and 10052

On December 31, 2020, President Trump signed a Presidential Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market. This proclamation extends Presidential Proclamations (P.P.) 10014 and 10052 through March 31, 2021.

On December 2, 2020, the Centers for Medicare & Medicaid Services (“CMS”) held a Special Open Door Forum to discuss a new final rule amending the regulations that interpret the federal physician self-referral law (the “Stark Law”). 

On December 4, 2020, separate lawsuits filed in federal courts in Maryland and California allege that the new Medicare drug-pricing regulation released by the Centers for Medicare and Medicaid Services (CMS) on November 20, 2020, known as the Most Favored Nation Rule (MFN Rule), violates federal law, including the United States Constitution.[1] 

Since our last update, there have been a variety of important changes impacting the U.S. immigration system amid the ongoing COVID-19 pandemic. These changes include continued flexibility in the compliance realm as well as the resumption of in-person services in the U.S. and abroad, to name a few. The most significant changes and updates are highlighted below.

Since the start of the COVID-19 outbreak in the U.S., the Trump Administration has issued a variety of Executive Orders aimed at restricting U.S. Immigration. Yesterday, the White House announced the continuation of its order suspending the entry of certain immigrants as well as announced additional restrictive measures directed at suspending the entry of nonimmigrant workers. Specifically, this latest Proclamation will suspend the entry of new H-1B, H-2B, L-1, certain J-1 nonimmigrants, and their accompanying dependents unless they qualify for one of the limited stated exemptions. The application of the ban to Canadian nationals seeking admission in these categories, who are not required to obtain a visa to enter the United States, is still unclear.

As businesses that have received funds (“Borrowers”) under the CARES Act’s Paycheck Protection Program (“PPP”) execute their COVID-19 survival strategies, it is important that these survival strategies are designed to take advantage of PPP program’s defining feature for Borrowers: loan forgiveness. The PPP provides that loans made under the PPP (“PPP Loans”) may be forgiven if the Borrower meets certain criteria for the use of the PPP Loan proceeds and maintenance of employee headcount and compensation levels. The forgiveness regime is governed by Section 1106 of the CARES Act, Interim Final Rules that have been issued by the Small Business Administration (“SBA”) thereunder (including the one Interim Final Rule, issued on April 2, 2020 (“IFR #1”) and another Interim Final Rule, issued on May 22, 2020 (“IFR #14) that each specifically deal with PPP Loan forgiveness), the forgiveness application posted to the Treasury Department website on May 16, 2020 (the “Forgiveness Application”) and the Paycheck Protection Program Flexibility Act (the “PPPFA”).

After months of discussion and drafting, H.R.7011, the Pandemic Risk Insurance Act of 2020 (PRIA) was introduced by Representative Carolyn Maloney and twenty co-sponsors on May 26, 2020. If passed as currently drafted, the Act would mandate that insurance companies offering business interruption insurance policies must cover losses incurred due to pandemics and it would establish a Pandemic Risk Reinsurance Program (PRRP) within the Department of the Treasury under which private insurance companies and the federal government would share the responsibility to pay claims for covered losses.

For the last two months, the doors of millions of businesses and homes have been shuttered due to government mandated stay at home orders. Through it all, the individuals who have served on the front lines and in essential businesses have been required to risk exposure to the novel coronavirus (COVID-19) to continue to serve and keep those businesses running. Several North Carolina Representatives recently introduced H.B. 1057 – WC/COVID-19 Front Line Coverage/Funds, a bill that would amend North Carolina’s workers’ compensation law by creating a rebuttable presumption that first responders, healthcare workers, and workers in essential services who contract COVID-19 or another pandemic infection contracted the infection on the job.

On April 23, 2020, the Treasury Department issued updated guidance (“FAQ 31”) regarding a confusing aspect of the CARES Act’s popular Payroll Protection Program (“PPP”).  A day later, on April 24, 2020, the Treasury Department issued a new Interim Final Rule (the “IFR”) formally implementing and expanding the scope of some of the PPP guidance in FAQ 31.  In applying for a PPP loan, among other things, applicants are required to certify that “current economic uncertainty makes this loan request necessary to support the ongoing operations” of the borrower (the “Necessity Certification”). 

A few weeks ago we were discussing what was believed to be the first COVID-19 lawsuit related to business interruption insurance and a handful of state legislative efforts to redefine the scope of coverage for businesses impacted by COVID-19.

In just a few weeks, we have gone from discussing what was believed to be the first COVID-19 lawsuit related to business interruption insurance and a handful of state legislative efforts to redefine the scope of coverage for businesses impacted by COVID-19 to dozens of lawsuits filed across the nation, including several class actions, and legislation circulating at the federal (and international) level proposing to provide a backstop to private insurers who pay out to policy holders.

After the flurry of layoffs, stay-at-home orders, furloughs, and considerable new government regulation, many employers are now looking at planning for the eventual resumption of “regular” business. Such planning requires balancing productivity and workplace efficiency with health concerns and legal compliance. The following guidance provides insight into issues employers should consider before bringing employees back to work and do’s and don’ts when employees are back.

After the flurry of layoffs, stay-at-home orders, furloughs, and considerable new government regulation, many employers are now looking at planning for the eventual resumption of “regular” business. Such planning requires balancing productivity and workplace efficiency with health concerns and legal compliance. The following guidance provides insight into issues employers should consider before bringing employees back to work and do’s and don’ts when employees are back.

In March, MVA provided a comprehensive summary regarding the impact the COVID-19 pandemic was having on U.S. immigration. Below is a roundup of the most important information impacting U.S. immigration since that summary.

The Small Business Reorganization Act of 2019 is a new streamlined bankruptcy process for businesses that qualify as a small business and took effect on February 22, 2020. The act is commonly known as “Subchapter V”.

On April 15, 2020, the SBA issued an Interim Final Rule (“IFR”) for the Paycheck Protection Program (“PPP”) component of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The PPP allows qualified businesses to receive loans equal to 2.5 times their average monthly payroll, up to $10 million, which may be fully forgiven if the proceeds are used for payroll and related expenses (subject to certain caps), rent, utilities, and interest on debts incurred prior to February 15, 2020. 

Businesses are facing this system hack with ever-increasing frequency: An accounts payable employee receives new or updated payment instructions from a vendor via email. 

The Small Business Reorganization Act of 2019 is a new streamlined bankruptcy process for businesses that qualify as a small business and took effect on February 22, 2020. The act is commonly known as “Subchapter V”.

On April 15, 2020, the SBA issued an Interim Final Rule (“IFR”) for the Paycheck Protection Program (“PPP”) component of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The PPP allows qualified businesses to receive loans equal to 2.5 times their average monthly payroll, up to $10 million, which may be fully forgiven if the proceeds are used for payroll and related expenses (subject to certain caps), rent, utilities, and interest on debts incurred prior to February 15, 2020.

On April 26, 2020, the Centers for Medicare and Medicaid Services (CMS) announced that it is reevaluating the amounts that will be paid under its Accelerated Payment Program and suspending its Advance Payment Program to Part B suppliers effective immediately. CMS had expanded these programs in late March of this year to provide short term loans to address cash flow issues for providers and suppliers during the COVID-19 pandemic.

On April 23, 2020, the Treasury Department issued updated guidance (“FAQ 31”) regarding a confusing aspect of the CARES Act’s popular Payroll Protection Program (“PPP”). A day later, on April 24, 2020, the Treasury Department issued a new Interim Final Rule (the “IFR”) formally implementing and expanding the scope of some of the PPP guidance in FAQ 31. In applying for a PPP loan, among other things, applicants are required to certify that “current economic uncertainty makes this loan request necessary to support the ongoing operations” of the borrower (the “Necessity Certification”).

With the significant recent healthcare, employment and financial services legislation arising out of the COVID-19 pandemic, and the almost daily updates and guidance, the sea-change in privacy and data security law of the past few years seems like a distant memory. 

In a few short weeks, shuttered doors and emptied streets have become characteristic of even the most robust urban centers of our country. In the face of the novel coronavirus (COVID-19) pandemic, nearly 95% of Americans currently are subject to government issued stay-at-home orders and non-essential businesses remain closed. We have progressed to the point where government and industry are working to develop plans to reopen the economy, but even those plans likely will require at least several more weeks under the current conditions. With the economy essentially grinding to a halt, the transportation sector has been hit hard. It has been said that weathering this pandemic may set transportation back decades if the right actions are not taken to stem the financial impact.

Charlotte Immigration Member Amanda Franklin was quoted in the Hotel News Now article titled, “Pandemic cuts into seasonal hotels’ limited time” which was published on April 17.

On April 8, 2020, North Carolina Governor Roy Cooper issued Executive Order 130 (the “Executive Order”) to provide necessary waivers to expand health care resources for treatment of COVID‑19 patients and to provide additional waivers for certain child care, emergency management, food establishment, elder care, developmental disability, mental health and substance use disorder treatment services, and social services.  The complete Executive Order is linked here:  https://files.nc.gov/governor/documents/files/EO130-Meeting-North-Carolinas-Health-and-Human-Services-Needs.pdf.

On April 8, 2020, North Carolina Governor Roy Cooper issued Executive Order 130 (the “Executive Order”) to provide necessary waivers to expand health care resources for treatment of COVID‑19 patients and to provide additional waivers for certain child care, emergency management, food establishment, elder care, developmental disability, mental health and substance use disorder treatment services, and social services. The complete Executive Order is linked here: https://files.nc.gov/governor/documents/files/EO130-Meeting-North-Carolinas-Health-and-Human-Services-Needs.pdf.

One thing, among many, that enduring the COVID-19 crisis is reminding us of is that the resilience of the human spirit is remarkable. Amidst calls for more personal protective equipment for the dedicated healthcare workers on the front lines and more ventilators for vulnerable patients fighting for their lives, company after company (and individuals) have responded by retooling their operations to manufacture the items needed to support the herculean effort to treat those infected and to stay ahead of and flatten the curve of this pandemic.

We hope you and your loved ones are all safe and healthy during these trying times. For any of you who have fallen ill, we wish you a speedy and full recovery. In response to the coronavirus pandemic, Moore and Van Allen has created a Covid-19 Resource Center including the latest news, alerts, and insights -- covering multiple practice areas to help you navigate this rapidly evolving situation from a legal and business perspective. MVA lawyers, professionals, and staff are here to support you during this uncertain time and remain committed to your success and well-being. We wanted to share directly with you some updates that might affect you, as well as some thoughts on opportunities this unprecedented situation has presented.

Employers across the country are facing unique and unprecedented challenges in responding to workforce issues in light of the COVID-19 pandemic. The law is changing quickly to address issues presented by the spread of COVID-19. The following shares guidance and insight into common workplace issues that can arise in response.

Employers across the country are facing unique and unprecedented challenges in responding to workforce issues in light of the COVID-19 pandemic. The law is changing quickly to address issues presented by the spread of COVID-19. The following shares guidance and insight into common workplace issues that can arise in response.

The COVID-19 pandemic is having a ripple effect across private financial markets.  2019 and the opening of 2020 set records for fundraising for private equity firms, and the market for investment in, and acquisition of, private companies.  Many founder-owned companies which, not 3 weeks ago, were within less than a month of closing a deal have been informed by their prospective acquirers that their transactions are “on hold”.  Others no longer have a deal, as investment committees and management teams re-evaluate purchase price, financial covenants and their responsibilities to existing portfolio companies and limited partners. 

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law by President Trump on March 27, 2020, as a response to the COVID-19 pandemic. Several provisions of the CARES Act impact real estate owners. Below is a summary of the provisions of the CARES Act that are most likely to impact to owners of commercial real estate. Please refer to Moore & Van Allen’s COVID-19 Resource Center for a more comprehensive analysis of the CARES Act.

On March 30, 2020, the Secretary of the Department of Health and Human Services (the “Secretary”) authorized blanket waivers of Section 1877(g) of the Social Security Act (the “Stark Law”). The Stark Law prohibits physicians from making referrals for designated health services[1] to an entity if the physician or an immediate family member has an ownership interest in, or financial arrangement with, the entity, unless an exception applies.

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law by President Trump on March 27, 2020, as a response to the COVID-19 pandemic. Several provisions of the CARES Act impact real estate owners. Below is a summary of the provisions of the CARES Act that are most likely to impact to owners of commercial real estate. Please refer to Moore & Van Allen’s COVID-19 Resource Center for a more comprehensive analysis of the CARES Act.

While striving to assist our clients and customers in responding to the outbreak, we also need to think about when it is over. There will be many losers, but also inevitably winners, either real or perceived. Helping the distressed and others harmed by the outbreak is hard and critical work. Managing the response to those who helped the winners will be unpredictable and complex. Right now, we cannot fully know the winners. Will it be customers that supply a desperately needed product or those that have sold at an opportune time? Our actions will be viewed through hindsight layered with emotions.

In response to the COVID-19 pandemic and the resulting disruptions to business and economic activity across the country, the Securities Exchange Commission (the “SEC”) and the SEC staff have taken steps to provide relief from certain filing and other regulatory requirements of the Securities Exchange Act of 1934 (the “Exchange Act”) and to give guidance to public companies on disclosure considerations related to the COVID-19 pandemic.

As summarized below, the Department of Health and Human Services (HHS) and Office for Civil Rights (OCR) have issued a series of bulletins and other guidance regarding the ability to use and disclose protected health information during the nationwide public health emergency concerning COVID-19.  Generally, the guidance is intended to provide greater flexibility during the emergency and to communicate existing abilities to use and disclose patient information, while confirming that the HIPAA Privacy Rule’s protections are not suspended as a whole. In addition, the Coronavirus Aid, Relief and Security (CARES) Act contains provisions related to Part 2 protections and additional HIPAA guidance.