2021 business law seminar - cdn.ymaws.com

2021 Business Law Seminar

Friday, August 27, 2021 WEBCAST

Abby Osborn, Shiffermiller Law Office, P.C., L.L.O.

Tara Paulson, Rembolt Ludtke LLP

Dr. Christal Sheppard, University of Nebraska College of Law

Lindsay K. Lundholm, Baird Holm LLP

Robert L. Kardell, Baird Holm LLP

Ryan Sevcik, Koley Jessen P.C., L.L.O.

Brian J. Blackford, Blackford Law LLC

Heidi Oligmueller, Oligmueller Law Firm, PC., LLO

The NSBA’s Business Law Section presents:

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AGENDA

The 2021 Business Law Seminar, organized by and for lawyers who practice business law, will cover current hot topics related to technology ethics and new cyber laws, labor and employment, immigration, intellectual property, and arbitration agreements.

10:00 AM – 11:00 AM To Each His/Her/Zir Own: Employment Law Issues from the

Employee and Employer Perspective Abby Osborn, Shiffermiller Law Office, P.C., L.L.O. Tara Paulson, Rembolt Ludtke LLP

Perhaps more than any other area of the law, employment law is constantly evolving to address the cultural and societal issues that employees bring with them to the workplace—even when it involves remote work. Employers and employees have different interests and perspectives when addressing these issues. In this presentation counsel representing employees and employers will discuss the latest developments in employment law, including COVID, workplace discrimination, employee leave benefits and other changes that businesses and their counsel need to know.

11:00 AM – 11:05 AM Break 11:05 AM – 11:35 AM Update on Patent Eligible Subject Matter under 35 USC Section

101 Dr. Christal Sheppard, University of Nebraska College of Law

Patent eligibility is a constantly evolving landscape with input from the United States Patent and Trademark Office, the International Trade Commission, the Federal Court including the Supreme Court, and Congress, all in light of our commitments under international agreements. Business interests desire certainty and in the current environment the only thing certain is change. This not only affects new innovations but currently patented ones. What are best practices for businesses, entrepreneurs, and policymakers in these certainly uncertain times? We will provide an update and discuss practical implications.

11:35 AM – 12:35 PM The Business Case For – and Against – Agreements to Arbitrate


Lindsay Lundholm, a litigation partner at Baird Holm LLP with twenty years of experience enforcing agreements to arbitrate and

trying cases in arbitration and an arbitrator for the American Arbitration Association, discusses the current legal landscape surrounding agreements to arbitrate, lessons learned from her arbitration practice, and practical considerations for business to weigh in the decision whether or not to agree to an arbitration clause.

12:35 PM – 1:30 PM Lunch Break 1:30 PM – 2:15 PM Nebraska Cyber Law Review and Update


As cyber security threats continue to increase, attorneys and businesses are targets. Attorneys should be aware of the potential threats and the costs and consequences associated with those threats. This session will review the current statistics and trends of the threat of cyber breaches, including Business Email Compromises, ransomware, and other cyber-attacks and attack vectors. We will also review the latest cyber breach statistics as reported to the Nebraska Attorney General's office.

2:15 PM – 2:30 PM Break 2:30 PM – 3:30 PM Immigration Law for Business Lawyers

Ryan Sevcik, Koley Jessen P.C., L.L.O Brian J. Blackford, Blackford Law LLC Heidi Oligmueller, Oligmueller Law Firm, PC., LLO

This seminar will review important immigration law topics that business lawyers may encounter in their practice, including:

National Interest Exception Form I-9 Completion / COVID allowances Family-based and refugee admissions (just the basics) CDC Title 42 order DOS visa delays DACA updates EAD/I-90/I-751 auto extensions, USCIS processing times,

and INFOPASS appointments for I-551 stamps

SPEAKER BIOS

Abby Osborn, Shiffermiller Law Office, P.C., L.L.O.

Abby is a lawyer who is passionate about assisting people in handling legal matters. She works tirelessly to serve her clients. Abby graduated from The University of Nebraska at Kearney with her degree in Political Science in 2007. She then graduated with her J.D. from the University of Nebraska-Lincoln College of Law in 2010.

Tara Paulson, Rembolt Ludtke LLP

Tara is the Chair of the Litigation Practice Group and member of the Executive Committee at Rembolt Ludtke and her practice primarily focuses on employment and labor issues, civil litigation and transportation. Tara has significant experience in employment litigation, including matters involving federal, state, and local employment laws. In addition to her litigation practice, Tara regularly represents clients in responding to administrative charges before federal, state, and local agencies, counsels employers regarding various labor and employment law issues, negotiates and prepares employment and separation agreements, reviews and revises employee handbooks, and drafts personnel policies.

Tara has also developed a unique practice representing transportation clients before the Nebraska Public Service Commission.

Dr. Christal Sheppard, University of Nebraska College of Law

Dr. Christal Sheppard has nearly 3 decades of science, intellectual property law and policy experience covering a large proportion of the IP ecosystem. Her experience includes serving as chief counsel of patent and trademarks in the United States House of Representatives, as the first Director of the first USPTO Regional Office, as a member of the Administration's Public Patent Advisory Committee, and in the International Trade Commission’s General Counsel’s Office.

Currently, she is an adjunct professor at the University of Nebraska College of Law and serves as a Distinguished Fellow at the Nebraska Governance and Technology Center.


Lindsay K. Lundholm is an experienced trial advocate, with 20 years of experience resolving high stakes business disputes. Lindsay has litigated hundreds of disputes from investigation through trial, and guides her clients through the strategic resolutions of disputes, focusing on her clients’ business objectives. She has tried more than 20 cases to verdict before juries and judges in state court, federal court and arbitration.

Lindsay’s extensive alternative dispute resolution experience includes advocacy before the panels of the American Arbitration Association (AAA) and the Financial Industry Regulatory Authority (FINRA). She also routinely advises clients in pre-arbitration proceedings including the enforcement of agreements to arbitrate. In addition, Lindsay applies her extensive alternative dispute resolution experience to her work as an arbitrator and mediator; the AAA invited Lindsay to join its roster of arbitrators in 2021. As an arbitrator, Lindsay works diligently to assist the parties before her in resolving their disputes fairly, efficiently, and cost effectively. Lindsay handles a wide variety of financial services litigation. Her experience with financial services industry disputes includes non-competition, non-solicitation, business tort, trade secret, unfair competition, professional liability, securities, shareholder, life insurance, and contractual disputes for financial advisory firms, FinTech companies, registered representatives, broker dealers, life insurers and other professionals and businesses.

Lindsay also has significant litigation experience with complex personal injury, breach of duty of care, and professional negligence claims. She has represented businesses, political subdivisions and educational institutions in high stakes disputes in which their employee’s conduct or negligence has been alleged to cause significant harm.

Her experience also includes the representation of businesses, individuals and political subdivisions in land use, tax valuation, zoning, property rights, energy and other litigation related to real property and land use.

Before joining the Firm, Lindsay served as a law clerk to the Honorable William Jay Riley of the United States Court of Appeals for the Eighth Circuit in 2001.


Robert L. Kardell (Bob) is an attorney whose practice focuses on cyber-breach incident response, legal and technology-based risk management solutions, technology and cyber-defense policy and protections, intrusion remediation, and fraud prevention and investigation.

Bob has more than 22 years of experience working for the Federal Bureau of Investigation as a Special Agent.

In his career, Bob has also worked on cyber-crime investigations as well as public corruption, white collar, and financial criminal and civil investigations. Bob has been both a certified computer forensics examiner and an accounting forensics investigator. He has testified numerous times as a fact witness in criminal trials and before grand juries, and drafted expert reports for both accounting and computer investigations.

Ryan Sevcik, Koley Jessen P.C., L.L.O.

Ryan Sevcik’s professional focus is to provide sensible, business-savvy counsel to clients as they address workforce-related issues and considerations. His laser-focus on his clients’ strategic objectives allows him to provide practical employment advice that they can implement in order to further those objectives.

Ryan regularly guides clients through the challenging regulatory landscape and strategic considerations as they sponsor workers for nonimmigrant visas and immigrant visas (a/k/a “green cards”). He has expertise in counseling employers through the response process related to a variety of U.S. Department of Labor (DOL) audits as well as Form I-9 inspections / audits conducted by Immigration and Customs Enforcement (ICE). Ryan frequently provides assistance with self-audits, and provides presentations and training seminars designed to foster development of proactive policies and procedures for employer compliance.

Brian J. Blackford, Blackford Law LLC

Brian J. Blackford has dedicated his career to advocacy for the rights of immigrants in the courtroom and in the community. Since 2014, he has been the managing partner and owner of Blackford Law LLC in Omaha, Nebraska which specializes in immigration law. His practice focuses on a variety of immigration cases in the areas of removal defense and “crimmigration,” family-based visa petitions, victim and juvenile visas, asylum, naturalization, and federal court litigation. Brian regularly gives immigration presentations at the Mexican Consulate, churches, schools, organizations, community forums, and continuing legal education seminars.

Brian is a member of the American Immigration Lawyers Association (AILA) and the Nebraska State Bar Association (NSBA) where he is actively involved in many important immigration issues on the national and local levels. From 2016-2017 he was the Chair of, and he is the current Immigration and Customs Enforcement (ICE) liaison for, the Iowa-Nebraska Chapter of AILA. He previously served on the AILA National ICE Liaison Committee, AILA National Pro Bono Committee, and the AILA National Consumer Protection and Unauthorized Practice of Law Action Committee. Additionally, Brian is a member of the NSBA's House of Delegates and is on the executive committee for the NSBA's Immigration Law Section. Born and raised in Omaha, Nebraska, Brian embraces the increasingly diverse community. From 2016-2017 he was the President of, and continues to assist, the Board of Directors for the Refugee Empowerment Center, one of three refugee resettlement organizations in Nebraska that resettles refugees from around the world.

Heidi Oligmueller, Oligmueller Law Firm, PC., LLO

Heidi Oligmueller is an attorney licensed in Nebraska, Iowa and South Dakota. Her practice consists primarily of immigration law including family petitions, refugee assistance, waivers, naturalization, and removal defense. She also practices in the area of I-9 compliance, and well as business law. Heidi is committed to not only representing diverse populations with their legal needs, she also tirelessly promotes and advocates for integration and inclusion processes within the Siouxland area.

Heidi currently serves as the Nebraska State Bar Association Immigration Law Section Chair, has served on the Rental Inspection Board for the City of South Sioux City, Nebraska and works alongside numerous community leaders to ensure the needs of the immigrant

community are met and the diverse populations are represented. She was recently recognized as Leadership Dakota County’s Leader of the year for 2020 and was chosen as one of the 2018 Women Aware, Women of Excellence recipients for “Women Developing the Community.”

Heidi graduated Cum Laude with a B.S. in Business Administration from Briar Cliff University and later received her Juris Doctor as a Sterling Honor Graduate from the University Of South Dakota School Of Law. Heidi participates in many other local and regional, volunteer and community building programs including: Iowa and Nebraska Volunteer Lawyer Projects, Board of Immigration Appeals Pro Bono Project, Iowa Supreme Court’s Language Access in the Court’s Committee, Leadership Dakota County Executive Board, as well as the Siouxland Federal Credit Union Board of Directors.


To Each His/Her/Zir Own: Employment Law Issues from the

Employee and Employer Perspective

Abby Osborn Shiffermiller Law Office, P.C., L.L.O.

Tara Paulson

Rembolt Ludtke LLP

Friday, August 27, 2021

Webcast

8/26/2021

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TO EACH HIS/HER/ZIR OWN:EMPLOYMENT LAW ISSUES

FROM THE EMPLOYEE AND EMPLOYER PERSPECTIVE

Abby Osborn| Tara Paulson

State and Local Law Changes

Unemployment Statistics

Federal Law Update

8th Circuit Case Law Update

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AMERICA WORKS REPORT

U.S. Chamber of Commerce survey of state and local chambers of commerce:

• 90% of those surveyed reported lack of available workers as main slow of economy

• 2/3 reported it is “very difficult” for employers in their community or state to hire workers

• Less than 1% of those surveyed said it is easy to fill open jobs

LABOR SHORTAGE: NEBRASKA

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♦Expansion of protected classes♦Mandated employer salary

disclosure♦Prohibition on requesting prior pay

information from applicants♦Pregnancy/breastfeeding

protections♦Transgender protections and

mandates♦Drug testing revisions due to

lawful cannabis use

♦New prohibition on discrimination based on race traits, including hairstyle and texture

♦Unemployment changes to make it easier to qualify for unemployment when voluntarily quitting for good cause

♦Cities and villages can prohibit discrimination based on disability

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“NON-BINDING” GUIDANCE ON BATHROOMS

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REMOTE WORK ISSUES

♦Calls and questions from employees

♦Call and questions from employers

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Update on Patent Eligible Subject Matter under 35 USC Section 101

Dr. Christal Sheppard

University of Nebraska College of Law


Webcast

8/26/2021

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A. Christal Sheppard Ph.D. J.D. Adjunct Professor University of Nebraska and University of MinnesotaFaculty and Distinguished Fellow, Nebraska Governance and Technology [email protected]

NSBA Business Law Seminar:Update on Patent Eligible Subject Matter under 35 USC Section 101

35 USC Section 101 –Patentable Subject Matter

•What is it?•Why should I care?•Okay, what’s the law? •What changed?•What does it mean for me? •Where is it going from here?

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Whoever invents or discovers any new

and useful process, machine,

manufacture, or composition of matter,

or any new and useful improvement

thereof, may obtain a patent therefor,

subject to the conditions and

requirements of this title.

• (July 19, 1952, ch. 950, 66 Stat. 797.)

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Whoever invents or discovers any new

and useful process, machine,

manufacture, or composition of matter,

or any new and useful improvement

thereof, may obtain a patent therefor,

subject to the conditions and

requirements of this title.

• (July 19, 1952, ch. 950, 66 Stat. 797.)


101: Patentable Subject Matter

102: Novelty103 Obviousness 112: Written Description, Enablement, Definiteness

Etc..

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United States Constitution Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.


Whoever invents or discovers any new and

useful process, machine, manufacture, or

composition of matter, or any new and

useful improvement thereof, may obtain a

patent therefor, subject to the conditions

and requirements of this title.

• (July 19, 1952, ch. 950, 66 Stat. 797.)

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Eligible:

Process, Machine, Manufacture and Composition of Matter


Eligible:Process, Machine, Manufacture and Composition of Matter

Ineligible: Laws of Nature Abstract Ideas and Natural Phenomena

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Eligible:• Genetically

engineered Bacteria

• Modified Plants

• Software

• Business Methods

Not Eligible:

Jason Rantanen – Patently O

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Eligible:

• Genetically engineered Bacteria (1980)

• Software (1981)

• Modified Plants (2001)

• (Business Methods*)

Not Eligible:

• Bilski v. Kappos (2010)

• Mayo Collaborative Services v. Prometheus

Laboratories, Inc. (2012)

• Association for Molecular Pathology v.

Myriad Genetics (2013)

• Alice Corp. v. CLS Bank International (2013)


Over 50 cases denied Supreme Court cert. since 2013

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Eligible:• Genetically

engineered Bacteria

• Modified Plants

• Software

• Business Methods

Not Eligible:

Section 101 CASES TABLE

Jason Rantanen – Patently O

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American Axle & Mfg. v. Neapco Holdings LLC (Fed. Cir. 2019)

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Congress 2019 Hearings and Draft bill

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United States Constitution Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

A. Christal Sheppard Ph.D. J.D. Adjunct Professor University of Nebraska and University of MinnesotaFaculty and Distinguished Fellow, Nebraska Governance and Technology [email protected]

Thank you, Nebraska State Bar Association

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The Business Case For – and Against – Agreements to Arbitrate

Lindsay K. Lundholm

Baird Holm LLP


Webcast

8/25/2021

© 2021 Baird Holm LLP 1

NSBA Business Law Seminar

August 27, 2021

THE BUSINESS CASE FOR AND AGAINST AGREEMENTS TO

ARBITRATE

Statutory Basis for Arbitration

• Federal Arbitration Act, 9 U.S.C. § 1-16• Uniform Arbitration Act (1956)

– Follows FAA, Neb. Rev. Stat § 25-2602.01 et seq and Iowa Code § 679A.1 et seq

• Revised Uniform Arbitration Act (2000)– More elaborate, adopted by 23 states

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Predispute Arbitration Clauses

• Jurisdictional basis for most commercial arbitration

• Arbitration is a matter of contract• Scope of arbitration “arbitrability”• Parties to arbitration also “arbitrability”• Administered or non-administered

Arbitration Clauses cont’d

• Adoption of arbitration rules• Locale of arbitration • Governing Law• Award: Standard, Reasoned, Findings

of Fact and Conclusions of Law • Cost and Fees

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Arbitration Clauses cont’d

• Single Arbitrator v. Panel • Arbitrator Qualifications• Party-Appointed Arbitrators • Punitive Damages• Appeal • Scope of Discovery/Expedited Process

Postdispute Arbitration Agreement

• Procedure specifically tailored to dispute

• Stand alone agreement vs. clause in larger agreement

• Similar issues as for predisputeagreement

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Enforcement of Agreements to Arbitrate

• Motion to Stay or Dismiss lawsuit and compel arbitration

• Enforceable agreement? Scope, parties, class action waiver, forum, etc.

• Arbitrability: Issue for Court or Arbitrator?

Procedural Rules:Administered or Not

• American Arbitration Association (AAA)• JAMS Comprehensive Arbitration Rules

& Procedures • International Institute for Conflict

Prevention & Resolution• Other (FINRA, UNCITRAL, ICDR, ICC,

LCIA)

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AAA Rules (adr.org)

• Commercial Arbitration Rules• Construction Industry Arbitration Rules• Consumer Arbitration Rules• Employment Arbitration Rules • Labor Arbitration Rules• International Dispute Resolution

Procedures

JAMS (jamsadr.com)

• Comprehensive Arbitration Rules and Procedures

• Streamlined Arbitration Rules and Procedures

• Construction Arbitration• Employment Arbitration

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CPR Rules (cpradr.org)

• Administered Arbitration Rules• Non-Administered Arbitration Rules• Fast Track Arbitration Rules (both) • Employment• Construction • Patent & Trade Secret

Resources for Clause Drafting

• https://www.adr.org/Clauses• https://www.jamsadr.com/clauses/• https://www.cpradr.org/resource-

center/model-clauses/overview

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Role of Arbitration Organization

• Rules, Revision of Rules• Vetting Panels and Arbitration

Selection Facilitation• Administrative procedures• Pro Se or Defaulting Party

The Arbitration Process

• Demand for Arbitration• Selection of Arbitrator• Pre-Hearing Conference• Discovery?• Hearing?• Award

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Challenges to an Award

• True appeals disfavored unless provided for in agreement

• Appeal limited under 9 U.S.C.A. § 10:– Award by fraud/corruption/undue means– Partiality or corruption of arbitrators– Misconduct of arbitrators (due process)– Arbitrators exceeded powers or indefinite

award

Recent Notable Decisions• Henry Schein, Inc. v. Archer and White

Sales, Inc., 139 S. Ct. 524 (2019) – Where threshold issue of arbitrability

delegated to arbitrator in contract cannot be decided by Courts

• Catamaran Corp. v. Towncrest Pharm., 946 F.3d 1020 (8th Cir. 2020) (Iowa) – Agreement to class arbitration must be

explicit

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Notable decisions, cont’d• Shockley v. PrimeLending, 929 F.3d

1012 (8th Cir. 2019)– Review of employee handbook alone

insufficient to create agreement to arbitrate

• Cinatl v. Prososki, 949 N.W.2d 505 (Neb. 2020)– Court rejects argument arbitrator

exceeded powers where laches and statute of limitations not pled

Benefits of Arbitration

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Benefits of Arbitration cont’d

• Efficiency/Cost of Litigation• Finality• Control over process• Limitations on discovery/abuse of

discovery• Control over selection of decision

maker

Concerns About Arbitration

• Lack of transparency• Lack of meaningful appeal if “wrong

result” • Discovery is limited• Dispositive Motions are less likely• Decisions will not create precedent

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Concerns About Arbitration cont’d

• Pre-dispute Agreement to Arbitrate

QUESTIONS?

Lindsay LundholmBaird Holm LLP

[email protected]

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Nebraska Cyber Law Review and Update

Robert L. Kardell

Baird Holm LLP


Webcast

8/25/2021


Cyber Law, Risk, and Security Update for 2021

Bob Kardell

Attorney, Ret. FBI, MBA, CPA, CISSP, GSEC, CFE, CFF, A+, Net+

Outline

• Breaches in Nebraska• New Laws• OFAC Reg Reminders• Significant Cases

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Part I – Cyber Attacks in General

Cyber Breaches in Nebraska

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Cyber Breaches

Types of Breaches

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Costs of Breach• IBM Ponemon Study - 2019

– $250 Avg. (US)– $429 Healthcare Avg.

Costs of Breach• Cyentia

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Part II – OFAC Regs

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OFAC Guidance – Ransomware Payments

• OFAC – Division of US Treasury– Enforces economic and trade sanctions– Specially Designated Nationals List– Embargoed Countries

• Who does OFAC apply to?– All U.S. persons, wherever they are located. All U.S. incorporated entities and

their foreign branches.

• What happens if you violate OFAC regulations?– Criminal and civil penalties apply– Up to 20 years in prison per violation– Seizure / forfeiture of goods involved

OFAC Guidance – Ransomware Payments

• Issued on October 1, 2020

• Directed at banks and any other companies involved in addressing cyberattacks: Insurance firms, digital forensics, incidence response companies

• Broadly states that facilitating ransomware payments on behalf of a victim to anyone on the SDN list or to an embargoed country violates OFAC regulations

• OFAC expects security programs to account for the risk that a ransomware attack may require engaging in transactions with an OFAC sanctions nexus

• Take-aways: if a ransomware attack may involve OFAC regulations –– Everyone involved in a payment to the attacker (hospital, bank, insurance carrier

etc.) faces a risk of violating the law.– Likely, a victim’s financial institution would refuse to conduct a transaction on behalf

of a victim to pay the attacker (e.g., there’s no way to “pay the ransom”)– Attack may no longer be covered by insurance policy

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Part III – New Laws

New Federal Laws

• IOT Law– Requires federal purchase of IOT to

adhere to NIST• Healthcare Law

– Reduced fines, auditing, remediation if adhere to NIST

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IOT - H.R. 1668• National Institute of Standards and Technology (NIST) to issue

standards– Directs NIST to consider relevant standards, guidelines and best practices developed

by the private sector, agencies, and public-private partnerships– Directs NIST to work with cybersecurity researchers, industry experts, and the

Department of Homeland Security (DHS) to publish guidelines on security vulnerability relating to IOT

• Directs the Office of Management and Budget (OMB) to issue guidelines for each agency that are consistent with the NIST recommendations

– Requires any IoT devices purchased by the federal government to comply with the NIST standards and guidelines; and

• Requires contractor compliance with the NIST standards and regulations and agencies to make a determination of such compliance before awarding a contract to procure or obtain an IoT device from a contractor.

Healthcare - H.R. 7898• Signed into law – January 3, 2021• If organization can demonstrate that

– for prior 12 months– Had recognized security practices

• NIST / CSA of 2015 / other statutory recognized

• May – Mitigate fines– Early termination of audit– Mitigate remedies

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State Law Safe Harbors

• Connecticut, Ohio, Utah– Proof of adherence to nationally

recognized cybersecurity framework

Part IV – Significant Case

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Recent High-profile Attacks

Capital One• Contracting with Investigators

– Mandiant– Pre-signed MSA and SOW– Paid for from business funds– Report was widely distributed– Court found that the report was not

protected under attorney-client

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Thank You!Questions?

Bob [email protected]

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Immigration Law for Business Lawyers

Ryan Sevcik Koley Jessen P.C., L.L.O.

Brian J. Blackford Blackford Law LLC

Heidi Oligmueller Oligmueller Law Firm, PC., LLO


Webcast

8/25/2021

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International Employee Travel: Visa Appointment Issues & National Interest ExceptionsBy: Ryan Sevcik

International Travel IssuesPrior COVID‐Related Bans (recap)‐ Suspension of entry of certain nonimmigrant visa (“NIV”) holders

‐ Immigrant visa (“IV”) restrictions

When‐Effective = 06/24/2020

‐No longer operative, but…

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Visa Appointment IssuesSuspension of Routine Visa Services

‐March 2020; Nonimmigrant visas

‐ July 14, 2020 – phased reopening

Consulate / Location Specific

Visa Appointment IssuesInterview Waiver / Dropbox Options

‐Valid through 12/31/2021

‐Applicants in same category

‐Visa expired within 48 months

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COVID‐19 Related Travel RestrictionsPresidential Proclamations

No entry to U.S. if physically present in the following countries within 14 days of entry‐China ‐ Schengen Area

‐ Iran ‐ Brazil

‐ Ireland ‐ India

‐U.K. ‐ South Africa

COVID‐19 Related Travel RestrictionsAll foreign nationals

Applies for residents of the identified countries

Applies even if transitioning through the identified

countries

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COVID‐19 Related Travel RestrictionsNational Interest Exceptions from Presidential Proclamation’s‐ Immigrants‐Certain NIVs: K‐1, J‐1, F, M, J, I‐Pilots / aircrew‐Humanitarian‐Travelers providing vital support

for critical infrastructure sectors

COVID‐19 Related Travel RestrictionsCritical Infrastructure‐As noted by CISA

Process for applying‐Consulate specific

‐Discretionary

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Form I‐9 Completion in the COVID‐19 Environment

Form I‐9 CompletionOverview of Rules for Remote I‐9 Completion (Generally)◦Timing

◦Physical review

◦Remote worker policies

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Form I‐9 CompletionCOVID Flexibility/Changes‐ First initiated 03/20/2020

‐Most recently extended to 08/31/2021

‐ Flexibility for fully remote employers

revised 04/01/2021 to focus on fully

remote employees

Form I‐9 CompletionFlexibility‐Employer can examine Section 2 documents remotely (e.g., video link, fax, email, etc.)

‐Requirements at time of inspection / process

‐ Future requirements / considerations

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Form I‐9 CompletionValid Documents‐ Expansion of use of Approval Notices

‐ More to come…?

Immigrant Visa and Humanitarian Admissions, Expulsions, and DelaysBY: BRIAN J. BLACKFORD

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Visas: Three Tracks and Two TypesTracks:

1) Employment (H1B, PERM)

2) Family (spouse, parent, child, sibling)

3) Humanitarian (Asylum/Refugee, U/T visa, VAWA, DACA, TPS, SIJS)

Types:

1) Immigrant (Family)

2) Nonimmigrant (Employment, Humanitarian)

Family‐Based ImmigrationImmediate relative vs. preference categories

1) Immediate relative (USC spouse, USC child over 21 for parent, USC parent for unmarried child under 21)

2) Preference categories (everyone else)

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per‐country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

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Refugee Status• Three “priorities” with extensive security vetting:

◦ Priority 1: Individual cases referred by designated entities (an Embassy, designated NGO or the UNHCR) to the program by virtue of their circumstances and apparent need for resettlement.

◦ Priority 2: Groups of special concern designated by the Department of State as having access to the program by virtue of their circumstances and apparent need for resettlement.

◦ Priority 3: Individual cases granted access for purposes of reunification with family members already in the United States.

Refugee AdmissionsCEILING V. ACTUAL

FY2016 (Obama): 85,000/84,994

FY2017: 110,000 (Trump’s partial refugee ban implemented)/53,716

FY2018 (Trump): 45,000/22,555

FY2019: 30,000/30,000

FY2020: 18,000 (record low)/11,814 (record low)

FY2021: 62,500 (revised from Trump’s 15,000 by Biden)/6,274 (incl. 60 in NE through July 31)

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Special Immigrant Visas (SIVs)1) SI category: Afghan and Iraqi translators/interpreters (and immediate families) for U.S.

military for min. 1 year ◦ (50/year)

2) SQ category: Afghans and Iraqis who were employed by/on behalf of U.S. for min. 1 year (and immediate families) who can show “serious threat” to safety

◦ 8,000 more for Afghans on July 30, total to 34,500 since 12/19/2014

◦ Iraqis – deadline to start process 9/30/2014 (5,000/year from 2008‐2012, 2,500 total from 2014‐now)

• 4,154 through July 31 incl. 13 in NE

Afghan P‐2 Designation• Not eligible for SIV (due to qualifying employment or time‐in‐service requirements) but, at any time: 1) worked as employees of contractors, Locally Employed (LE) Staff, interpreters/translators for the U.S. government, United States Forces Afghanistan (USFOR‐A), International Security Assistance Force (ISAF), or Resolute Support; 2) worked for a U.S. government‐funded program or project in Afghanistan supported through a U.S. government grant or cooperative agreement; 3) employed in Afghanistan by a U.S.‐based non‐governmental or media organization

• Referral by U.S. government agencies, U.S.‐based NGOs, and U.S.‐based media organizations

• Processing once relocated to third country

• Includes immediate family members

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Central American Minors (CAM) Program• Children (unmarried and under 21) from Northern Triangle countries (El Salvador, Guatemala, Honduras) who have a parent who is 18+ and either lawfully present in U.S. or has pending asylum or U‐visa application

• Started 2014, terminated in 2017, and restarted in 2021

• Reopening closed cases now, new cases to follow

• If approved, admission as refugee

• If denied, can still be considered for parole

CDC: 42 U.S.C. § 265• “[T]emporarily suspends the introduction of certain noncitizens based on the Director’s determination that introduction of such noncitizens, regardless of their country of origin, migrating through Canada and Mexico into the United States creates a serious danger of the introduction of COVID‐19 into the United States, and the danger is so increased by the introduction of such noncitizens that a temporary suspension is necessary to protect the public health.”

• U.S. citizens, permanent residents, and unaccompanied minor children excepted

• “DHS continues to expel the majority of single adults, and, to the extent possible, families encountered at the Southwest Border.” FY2021 through July: 846,498

• Remains in effect until the CDC Director determines that the danger of further introduction of COVID‐19 into the United States from covered noncitizens has ceased to be a serious danger to the public health, and the Order is no longer necessary to protect the public health

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Immigrant Visa Delays/Prioritizations• COVID‐19 shutdowns of embassies/consulates around the world with continued significant backlogs

• Limited reopening with triage: ◦ Tier One: Immediate relative intercountry adoption visas, age‐out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)

◦ Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas

◦ Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad

◦ Tier Four: All other immigrant visas, including employment preference and diversity visas

BY: HEIDI L. OLIGMUELLER

DACA UpdatesProcessing times, Documentation of Status and What to do when time is running out

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DACA Updates•07/16/21‐Texas Federal Court ruled DACA policy unlawful but allowed current DACA recipients to continue in program • New DACA applications can still be submitted though won’t be processed

• NO refunds for fees already submitted/Biometrics appointments being cancelled for first time applicants

• Advance Parole for current DACA recipients is still available

• Initial vs. Renewal Requests• What to do if I had DACA but it expired?

DACA Processing Times•USCIS Goal to process DACA Renewals within 120 days (can inquire if pending more than 105 days)

•Can file to renew 150 days prior to expiration date

•Re‐use of biometric information helpful in speeding processing times• Current published processing times for renewals:

• Nebraska Service Center 4 weeks to 5.5 months

• Vermont Service Center 5 months to 5.5 months

• Work permits associated with DACA show 6.5 months to 10.5 months processing times

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Advance Parole for DACA Recipients•Available to those who can show Urgent Humanitarian Reason or Significant Public Benefit

• Emergency Advance Parole available at local field office

• Evidence necessary to support request (school, work, emergent circumstances)

• Processing times 6 to 8 months • Recent approval for sick grandmother took 6 months processing time

• Travel time allowed 14 days‐have seen varying timeframes

Processing Times at USCIS •I‐90 (Green Card) Processing Times

• Initial Green Card issuance 7 to 16 months

• 10 year renewal 4.5 to 12.5 months

• I‐797 now replaces sticker extending validity period for 12 months

• Infopass appointment for those with expired extensions and expired immigrant visas waiting on initial issuance

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Processing Times at USCIS•I‐765 Employment Authorization Documents

•Numerous categories and processing times vary‐can only apply 120 days prior to expiration• Based on pending green card application (c)(9) 15 to 21.5 months

• Based on pending asylum application (c)(8) 8.5 to 9.5 months

• Based on approved asylum application (a)(5) 6.5 to 7.5 months

• H‐4 spouse of H‐1B whether filed with or without I‐539 (c)(26) 11.5 to 14 months

• Based on pending application for cancellation of removal (c)(10) 6.5 to 14.5 months

Processing Times at USCIS•I‐751 Petition to Remove Conditions on Residence

• 2 year green card initial issuance

• I‐797 extends for 18 month period

• Many cases now being re‐interviewed at local field offices

• Current processing times 17 to 36.5 months

• Infopass available for requesting additional extensions after 18 month period expires

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Automatic Extensions (I‐797s)•I‐90s auto extended 12 months with I‐797

•I‐751s auto extended 18 months with I‐797

•I‐765 auto extended 6 months with I‐797 under certain categories• (a)(3) Refugee (C)(19) Pending Initial TPS Application (prima facie eligible)

• (a)(5) Asylee (c)(20) Section 210 Legalization Pending

• (a)(7) N‐8 or N‐9 (c)(22) Section 245 Legalization Pending

• (a)(8) Citizen of Micronesia, Marshall Islands or Palau (C)(24) LIFE Legalization

• (a)(10) Withholding of Deportation or Removal Granted (c)(31) VAWA Self Petition

• (a)(12) Temporary Protected Status (granted) TPS

• (c)(8) Asylum Application Pending

• (c)(9) Pending Adjustment of Status under Section 245

• (c)(10) Suspension of Deportation Applicants /Cancellation of Removal Applicants

• (C)(16) Created of Record

What to do When Time is Running Out?•Infopass Appointments

• 800‐375‐5283 to request an appointment

• Officer will call back within 48‐72 hours (may be at all hours of the day)

• Appointment scheduled for local field office

• Only for services that cannot be provided by phone • Try online filing to get I‐797 notices quicker

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Questions?

Ryan J. Sevcik‐ Koley Jessen P.C., L.L.O. [email protected]

Brian J. Blackford‐ Blackford Law, L.L.C. [email protected]

Heidi L. Oligmueller‐ Oligmueller Law Firm, P.C., L.L.O [email protected]

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