Compliance Alert: Form I-9

Proposed Changes to Form I-9 have been Approved 

Original Post from Giselle Carson, Shareholder and Immigration Attorney 

Earlier this week, the latest revisions to the Form I-9 were approved. The new form will soon be released to the public.

The current Form I-9 expired on March 31, 2016, but employers have had to continue to use the expired form until the proposed revisions were approved.

USCIS will need to update the online I-9 form available within 90 days to reflect the changes. However, USCIS may accept the expired version for another 150 days (January 22, 2017). The extension is helpful for employers that don’t always receive updates of this nature in a timely manner. USCIS has yet to publish the new Form I-9 and no indication has been given when they will.

The new Form 1-9 will include “smart” features for error checking (when used in Adobe reader). However, this does not mean the new I-9 will be “electronic”. Employers filling out the form will still be required to print the form, obtain signatures, and store in a safe place.

The new form will also include important structural changes as outlined below:

• The USCIS has replaced the “Other Names Used” field in section 1 with “Other Last Names Used” in order to avoid possible discrimination issues and to protect the privacy of transgender and other individuals who have changed their first names.

• Section 1 has been modified to request that certain foreign national employees enter either their Form I-94 number or foreign passport information (rather than both).

• Employees who provide an Alien Registration Number/USCIS number in section 1, must also indicate whether the number is, in fact, an A-Number or a USCIS number (even though currently these are the same).

• If the employee does not use a preparer or translator to assist in completing section 1, he or she must indicate so on a new check box labeled, “I did not use a preparer or translator.” In addition, the form enables the completion of multiple preparers and translators, each of whom must complete a separate preparer and/or translator section.

• The USCIS has added a new “Citizenship/Immigration Status” field at the top of section 2, where the employer is expected to write the number corresponding to the citizenship/immigration status selected by the employee in section 1. For example, if the employee attested to being a U.S. citizen, the employer must write the number 1 in this new field.

• Section 2 has a new dedicated area to enter additional information that employers are currently required to notate in the margins of the form (such as TPS extensions, OPT STEM extensions, H-1B portability, etc.).

• At long last, the mysterious barcode has appeared in the form of a “QR code” that will appear (once printed) and be used to facilitate review by ICE auditors.

Original Post Available on Giselle Carson's Immigration Blog here.

Are your Intellectual Property Assets Protected?

Covering Your Assets: Identify and Protect your Business' Intellectual Property 

by Crystal Broughan, Intellectual Property Law Attorney 

Do you have an inventory of your company’s intellectual property (IP) assets?  Do you even know what is considered an Intellectual Property asset?  Intellectual Property is everywhere in the world of business and business owners should make sure they protect their assets since intellectual property is crucial to the success of their business.  

Types of IP assets:

Trademarks are brands, logos, service marks, collective marks, and trade names;

Copyrights protect the expression of ideas – software code, websites, curriculum, how-to-manuals, paintings, books, sculpture, audio and visual recordings, musical and dramatic works.

Patents are for the protection of technical and functional inventions of products and processes that are new and not obvious.

Trade Secrets - all forms and types of financial, business, scientific, technical, economic, or engineering information if the owner has taken reasonable measures to keep them secret and the information derives independent economic value from not being generally known.

Actions you should take:

Conduct an audit to identify all registered and unregistered trademarks and copyrights.  Include all patent registrations and inventions that you intend to patent or keep as a trade secret.

Invest in well written and up to date non-disclosure agreements.  Make sure all of your employment and vendor agreements, licensing agreements, sales contracts and technology transfer agreements protect your IP assets.

File trademark applications for all unregistered word marks, service marks, logos, collective marks and trade names.

File copyright applications for materials you have developed such as your websites, software code, curriculum, how-to-manuals, logos that you are using, graphics that you are using to promote products and services, etc.

File patent applications before you publish a new invention.  Once you disclose publicly an invention you must file an application within one year or you lose the right to obtain a patent registration. 

If you decide you want to keep an invention, process or formula as a trade secret instead of filing for a patent, make sure you actively take reasonable measure to keep the information secret.

Save money in the long run by working with an IP lawyer who can advise you on trademark, copyright and patent registrations, review your business agreements and contracts for the protection of all IP assets.  Sometimes what appears to be simple at first turns out to be more complex than you originally considered.  A trademark or patent application can be rejected for small details that were not included in the original application.

Consider the future of your company:

Properly protected IP assets add value to your company if you intend to sell it in the future.

If your IP assets are protected you are in a better position to protect your company and brands from copycats who infringe on your brands and ideas. 

You may decide you would like to license your brand or products to a third party as you expand your business.  So you will want to make sure the brand is registered and the products properly protected.

You may expand your sales of products or services to other countries in which case having US trademark registrations in place will help in the trademark application process in with other countries.

Better to act now in protecting your valuable IP assets instead of waiting until it is too late when someone takes your brand, product or client list and opens their own business. 

Crystal Broughan is an intellectual property law attorney with Marks Gray, P.A.  If you would like to learn more about Marks Gray’s intellectual property law services please contact Ms. Broughan at cbroughan@marksgray.com or 904-807-2180.

The Federal Defend Trade Secrets Act: Thoughts for Employers and Business Owners

In May 2016, President Obama signed into law the Defend Trade Secrets Act (DTSA or Act).  The Act brings the federal protection of trade secrets on par with corresponding laws that apply to the other pillars of intellectual property, copyrights, patents, and trademarks.  

What is a trade secret –   The Act broadly defines “trade secret”:

(3) the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—

                (A) the owner thereof has taken reasonable measures to keep such information             secret; and

                (B) the information derives independent economic value, actual or potential,    from not being                 generally known to, and not being readily ascertainable through proper means by another                 person who can obtain economic value from the disclosure or use of the information;

18 U.S.C. § 1839(3)

What it does - The Act amends several sections of Title 18 of the United States Code and specifically section 1836 to allow a federal right to action for a party that claims to be the victim of trade secret misappropriation.   Prior to the passage of DTSA, the only federal remedy for the theft of trade secrets was a criminal action brought under the Economic Espionage Act of 1996 (EEA).  There were no federal civil remedies for misappropriations of trade secrets.  A Party could seek civil remedies in some states such as Florida, that adopted the Uniform Trade Secrets Act (UTSA) in 1988.[1]   However, not every state adopted the UTSA. 

Protection for whistleblowers - The Act includes a provision to protect whistleblowers who reveal that a business is engaging in or has engaged in (knowingly or unknowingly) the misappropriation of trade secrets.  The whistleblower provision also grants immunity, on both the federal and state level, for the disclosure of a trade secret if the disclosure:

                (A) is made

(i) In confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and;

(ii) Solely for the purpose of reporting or investigating a suspected violation of law; or

(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

18 U.S.C. § 1833 as amended by § 7(b)(1) of DTSA.

Anti-retaliation provision – The Act has an anti-retaliation provision that is geared at stopping a business from retaliating against an employee who brings to light the business’s misappropriation of trade secrets.  Like the whistleblower immunity, but not as broad, the Act permits an employee, who is reporting an employer’s suspected violation of trade secret law, to disclose the trade secret to her attorney and use the trade secret information in related litigation.  However, the disclosure must be filed under seal and cannot be disclosed to third parties without a court order.[2]

Required notifications to employees – Under the DTSA, the two above-mentioned provisions, and the rights provided by them, must be communicated to the employee by the employer.  This notification provision of the Act extends to independent contractors as well.[3]  The Act provides that notice can be effectuated by inserting specific language into employee contracts (or agreements) or by inserting the language in the business’ policies and placing a cross-reference to the policy in revised employee and contractor contracts (or agreements).[4] 

Lack of penalties –There are no express penalties for a business if it fails to comply with the notice requirements.  The Act does provide that, if an employer fails to comply with the notice requirement and does not communicate the anti-retaliation or whistleblower protection to its employees, the employer may not be awarded attorney’s fees or exemplary damages in an action for trade secret misappropriation against an employee.[5] 

Ex parte seizures –The DTSA contains an ex parte seizure provision.  The ex parte seizure provision allows a party to seize the assets of a competitor if the party can show a court that there has been a misappropriation of a trade secret.  This type of injunctive relief will only be granted in extraordinary circumstances where a court clearly finds that granting the seizure outweighs the harm to the third party subject to the seizure.[6]  Accordingly, the party seeking the injunction has a high burden of proof before a court allows the seizure of another business’s assets.

What does this mean for you as an employer -

-          Update employment, non-disclosure, proprietary information, invention assignment and other agreements and policies that govern the use of a trade secret or confidential information to ensure compliance with the DTSA;

-          If you do not have existing policies regarding trade secret information then establish such policies;

-           Consult with your intellectual property or employment attorney to ensure that your business is or will soon be in compliance with the Act’s various provisions.  The mandatory notification provisions should be addressed as soon as possible. 

The Act is a significant development in the realm of intellectual property.  Trade secrets give a business a competitive edge.  Whether it is the recipe to a food chain’s secret sauce or the client list of a hedge fund; trade secrets, and the protection of them, can be the determining factor in the success of a business.  Accordingly, this Act will impact the trade secret practices of local, national, and international businesses alike.

Crystal Broughan is an intellectual property law attorney with Marks Gray, P.A.  If you would like to learn more about Marks Gray’s intellectual property law services please contact Ms. Broughan at cbroughan@marksgray.com or 904-807-2180.

Special Assistance from Dion K. Bass, Marks Gray Summer Law Clerk - 2016

---

[1] Fla. Stat. §688.004 (2015).

[2] 18 U.S.C. § 1833 as amended by § 7(b)(2) of DTSA.

[3] Id. as amended by § 7(b)(4) of DTSA.

[4] Id. as amended by § 7(b)(3) of DTSA.

[5] Id. at § 7(b)(3)(C) of DTSA.

[6] 18 U.S.C. § 1836 as amended by § 2(b)(2) of DTSA.

April Immigration Bulletin is Out!

H-1B Cap Updates for FY 2017 - Over 236,000 H-1B Petitions Filed and Lottery Completed

Subscribe to stay up to date with immigration alerts!

USCIS just announced that it received over 236,000 cap-subject H-1B petitions. This number is just slightly higher than last year when USCIS received 233,000 petitions. 

 

We don’t yet have the number of U.S. Master’s vs. Bachelor’s degree petitions received.   We know that more than 20,000 U.S. Master’s petitions were received. 

 

USCIS conducted the lottery process April 9^th, 2016 and selected the required 65,000 Bachelor’s and 20,000 U.S. Master’s petitions. Petitions not selected will be returned over the following months. Prior to returning those unselected petitions, USCIS will start issuing receipts for those petitions selected starting with those that were filed via premium processing. 

 

To read USCIS press release click here.

 

As we track the H-1B filings, we will provide updates via our blog and newsletter.  In the meantime, this news alert contains several pieces of information relating to the H-1B process should you not be selected for the H-1B.

 

To stay updated on current immigration issues, we invite you to subscribe to our blog. 

Back Up Plans for Immigrants Who Don't Secure an H-1B Visa

While many foreign nationals might have to wait until next April for another chance at H-1B status, the following options should be considered for affected employees:

H-1B’s that Are Cap-Exempt

These include petitions for employment at an institution of higher education, or a related or affiliated nonprofit entity, nonprofit research organization, or governmental research organization and physicians on J-1 visas who receive H-1B status through the Conrad 30 program on the basis of agreeing to work in medically underserved areas for three years. H-1B visas are also available for beneficiaries filing for amendments, extensions, and certain employment transfer.

STEM/OPT Extension and F-1/CPT

A 24-month optional practical training (OPT) for foreign nationals with advanced U.S. degrees in designated Science, Technology, Engineering or Math (STEM) fields.  A 7-month OPT extension for those currently using the 17-month extension. The new 24-month STEM OPT rule allows DHS to designate "related fields" on the STEM list. 

"In general, related fields will include fields involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences)." To qualify for the STEM/OPT, employers must be enrolled in E-Verify and complete an individualized Form I-983 "Mentoring and Training Plan".  Students must work with their DSO to file for the STEM/OPT benefit.    

Foreign students should also look into continuing in F-1 status and explore with their DSO internship opportunities under curricular practical training (CPT).

Visas for Professionals from Canada, Mexico, Australia, Chile and Singapore

Certain Canadian and Mexican professionals might qualify for a TN visa available under the NAFTA.   To qualify, the foreign national must have the required nationality, be offered a temporary position by a U.S. employer in one of the professions specified in Appendix 1603.D.1 of NAFTA and possess the degree or credentials required under NAFTA for the position.  

Nationals of Australia should consider the E-3 visa and nationals of Chile and Singapore should consider the H-1B1 visa.

Other Work Visa Categories

The L-1 visa, intra-company transferee, is available to certain employees who have worked for a parent, branch, subsidiary or affiliate of the U.S. employer outside of the U.S.   To qualify, the immigrant must have worked for at least one consecutive year full time in the prior three years.  The employer must seek to transfer the employee to the U.S. to work as a manager/executive or specialized knowledge professional.

The O-1A is available to individuals who can demonstrate extraordinary ability in the sciences, education, business or athletics.  The evidence must show that the candidate is among the small percentage of people who have risen to the very top of their field of endeavor, as demonstrated by sustained international or national recognition for their achievements in the field.

The E-1 or E-2 is available to principals and employees of companies whose country of majority ownership has a treaty of commerce with the U.S.  E-1 treaty trader status is available to businesspersons who seek to engage in substantial trade in goods or services.  The E-2 treaty investor status is available to individuals who seek to develop and direct the operations of a business in which the foreign national or his/her employer has invested or is in the process of investing a substantial amount of capital.

Conclusion

Unfortunately, the currently insufficient number of H-1B visas for highly skilled temporary workers and limited number of alternatives is creating significant challenges for U.S. employers that rely on foreign workers, particularly in the high technology and health care industries.  Early planning, creativity, and flexibility are critical.

We will continue to monitor and provide updates on further developments in immigration law, including any potential changes to the H-1B program and visa availability.

Limited Window of Opportunity to File for Seven Month STEM OPT Extension Under Revised Rule

Foreign students currently on STEM OPT may apply for an additional seven months to benefit from the new 24-month period of STEM OPT rule. But, the time frame to apply is limited. According to the latest USCIS update, applicants must submit required paperwork to request the extension between May 10 – August 8, 2016.   

 

To qualify for this seven-month extension, students must have at least 150 calendar days remaining before the end of the 17-month OPT period at the time the Form I-765 is filed. They must also meet all other requirements for the 24-month STEM OPT extension. The 150-day minimum remainder of OPT time is aimed to provide the student with at least one year of practical training under the extension. Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. 

 

DHS will not automatically convert 17-month extensions into 24-month extensions. Students considering applying for this extension should contact their DSO as soon as possible to obtain additional guidance and authorization to proceed with the application.  

Traveling Abroad While a Change of Status is Pending is Fatal

Often foreign nationals are admitted in one category and apply for a change of status (COS) to another category while in the U.S. For example, we just filed cap-subject H-1B petitions for many immigrants who were in F-1/OPT status requesting a COS to H-1B. If an immigrant applies for a COS and travels abroad while the petition is pending, their application would be considered abandoned and USCIS would issue a denial. Traveling abroad will also result in a denial of any Form I-765, Application for Employment Authorization, filed before the COS is approved. Therefore, traveling abroad can be fatal to your filing.

Expired I-9 Form Currently in Use

The current Form I-9 Employment Eligibility Verification expired March 31, 2016. However, USCIS has allowed employers to continue to use the current version of the Form I 9 until additional comments are received and a new form is finalized and approved.

Public comments may be submitted until April 27, 2016.  In response to the public comments already received, USCIS has made changes to the proposed new form including:

• Validations on certain fields to ensure information is entered correctly;
• Drop-down lists and calendars;
• Embedded instructions for completing each field;
• A dedicated area to enter additional information that employers are currently annotating in the margins;
• A quick-response (QR) code that generates once the form is printed to facilitate audits; and
• Removing the requirement that foreign nationals provide both their Form I-94 number and passport information in Section 1.

Employers should continue to use the current version of the Form I-9 until the new proposed version is released. USCIS will post the final version on its website once it is available. We will post updates on this important issue as they are made available.

Marks Gray, P.A. ranked among 2016 "Best Law Firms"

Marks Gray, P.A. has been named a "Best Law Firm" in multiple practice areas by U.S. News - Best Lawyers® in 2016

Marks Gray, P.A., has been recognized by U.S. News – Best Lawyers® “Best Law Firms” 2016 rankings. Marks Gray is ranked regionally in eight practice areas.

“As one of Jacksonville’s oldest law firms, we take great pride in our partnerships with our clients and providing them access to the most experienced and knowledgeable legal counsel,” said Marks Gray President, Jerry Weedon. “It’s an honor to be once again included in this prestigious list and acknowledged for our hard work, dedication, and experience.”

Firms included in the 2016 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for its abilities, its professionalism and its integrity.

Marks Gray received the following rankings in the 2016 U.S. News – Best Lawyers®

 "Best Law Firms":

Metropolitan Tier 1

Jacksonville

• Medical Malpractice Law - Defendants 
• Personal Injury Litigation - Defendants 
• Product Liability Litigation - Defendants 

Metropolitan Tier 2

Jacksonville

• Employment Law - Management
• Real Estate Law

Metropolitan Tier 3

Jacksonville

• Banking and Finance Law
• Commercial and Litigation 
• Employment Law - Individuals 

ABOUT “BEST LAW FIRMS”

The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a law firm must have at least one lawyer listed in the 21st Edition of The Best Lawyers in America© list for that particular location and specialty.

ABOUT U.S. NEWS & WORLD REPORT

U.S. News & World Report is a digital news information company that empowers people to make better, more informed decisions about important issues affection their lives. Focusing on Education, Health, Personal Finance, Travel, Cars and News & Opinion, www.usnews.com provides consumer advice, rankings, news and analysis to serve people making complex decisions throughout all stages of life. 30 million people visit www.usnews.com each month for research and guidance. Founded in 1933, U.S. News is headquartered in Washington, DC.

Marks Gray Elects Four New Shareholders for 2016

Meagan L. Logan, Jill F. Bechtold, Michael D. Kendall and Crystal T. Broughan
elected as newest Shareholders at Marks Gray, P.A.

Marks Gray, P.A. is pleased to announce four new shareholders; Meagan L. Logan, Jill F. Bechtold, Michael D. Kendall, and Crystal T. Broughan. Each attorney has underscored the firm’s capabilities in insurance and professional liability litigation, in addition to its growing intellectual property practice.

“These attorneys have achieved outstanding results for our clients and have differentiated themselves as leaders,” said firm Chair Gerald Weedon. “Their practices support the firm’s core mission of integrity and superior service to our clients. They’re an important part of Marks Gray’s continued success and exciting future.”

Meagan L. Logan 

Meagan L. Logan handles matters involving municipal liability, civil rights, appellate litigation, and general liability defense. She is a Martindale-Hubbell AV^® Preeminent^™ rated attorney, and a skilled defender with experience managing multi-defendant litigation matters. Ms. Logan represents municipalities, public and private business organizations, and corporate entities. She is licensed to practice throughout the state of Florida, including the U.S. District Court for the Middle, Northern and Southern Districts of Florida, the U.S. Court of Appeals, the Eleventh Circuit, Georgia State, and Superior Courts, U.S. District Court for the Middle District of Georgia, as well as the Georgia Court of Appeals. She is also a member of the Florida Bar Association, the Georgia Bar Association, Jacksonville Bar Association, the Florida Defense Lawyers Association (FDLA), and the Jacksonville Association of Defense Counsel (JADC). Additionally, she has been selected as a Florida Super Lawyers Rising Star for 2010 – 2016. Ms. Logan earned her law degree from Florida Coastal School of Law in 2005, and joined Marks Gray in 2008. She can be reached at mlogan@marksgray.com.

Jill F. Bechtold

Jill F. Bechtold practices in the areas of medical and professional liability defense, products liability and general civil litigation defense. She has been recognized as a top lawyer by Florida Super Lawyer and Florida Trend magazines, has an AV Rating by Martindale-Hubbell, and is a member of the Defense Research Institute (DRI), Chester Bedell Inn of Court, and the Florida Defense Lawyers Association.  Ms. Bechtold represents both individual and enterprise clients. She is a member of the Leadership Jacksonville Class of 2015 as well as a Jacksonville Business Journal 2015 Woman of Influence. She also serves the community as the President of the Board for Girl’s Inc. of Jacksonville. Ms. Bechtold earned her law degree from the University of Florida and joined Marks Gray in 2013. She speaks nation-wide before defense lawyers on the Reptile Strategy and related topics. She can be reached at jbechtold@marksgray.com.

Michael D. Kendall

Michael D. Kendall is the Chair of the workers’ compensation practice area and has been practicing law since 2000. His work focuses primarily on representing insurance carriers and employers in Workers’ Compensation matters.  He counsels insurance companies, hospitals, government entities, and individuals in all aspects of civil litigation. Mr. Kendall has served as adjunct professor at Florida Coastal School of Law, Judicial Staff Attorney for the Fourth Judicial Circuit, and past President of the Ronald McDonald House Charities of Jacksonville. Today, he still has significant influence with the charity as a member of the Board of Directors. Mr. Kendall is a 2000 cum laude graduate from the University of Dayton School Of Law. He is a top rated civil litigation attorney and was selected as a Florida Super Lawyers Rising Star for 2010-2015. He can be reached at mkendall@marksgray.com.

Crystal T. Broughan 

Crystal T. Broughan leads the Intellectual Property Law practice, handling complex matters in trademark, trade secret, and copyright legal advocacy to clients ranging from start-ups to international corporations.  She represents clients before the Trademark Trials and Appeals Board of the United States Patent and Trademark Office, as well as managing infringement litigation for all types of intellectual property matters in federal and state courts. An AV rated attorney by Martindale-Hubbell, Ms. Broughan is a member of the International Trademark Association’s (INTA) Law Firm Committee and the former chair of the Jacksonville Bar Associations Franchise Intellectual Property and Technology Law Committee.  In addition, she manages insurance fraud investigations and litigation on behalf of the special investigation units for insurance companies.  During her more than 25 years of practice, she served as the Chief Assistant Statewide Prosecutor in Jacksonville for the Florida Office of the Attorney General and as an Assistant State Attorney for the Fourth Judicial Circuit.  In 2012, she was awarded the Insurance Lawyer of the Year award by the Florida Insurance Fraud Education Committee (FIFEC).  She is a Master in the Chester Bedell Inn of Court, a member of the Jacksonville Women’s Network, a graduate of Leadership Jacksonville, Class of 2010 and Leadership Orlando, Class of 1984.  Ms. Broughan graduated from the Florida State University College of Law in 1990.  She can be reached at cbroughan@marksgray.com.

Congratulations!