ONS Edition 24

Article: Biden Administration Reshapes H-1B Visa Rules: What Employers Need to Know. (Fisher Philips, 19th December 2024)

Article Summary: New eligibility requirements for the H-1B visa program have been established by the US Citizenship and Immigration Services (USCIS). Simplifying the yearly lottery system, decreasing fraudulent duplicate files, and fixing problems that have irritated both companies and employees are the goals of the new regulation. The new regulations target program integrity, increase workplace scrutiny, make it simpler to extend visas, change the definition of specialty occupations, broaden who can qualify for exemptions, increase the number of students allowed to apply, make it easier for business owners to apply for H-1B visas, and more. Employers in specialist occupations that demand specialized knowledge and a bachelor's degree, or its equivalent can temporarily hire foreign workers through the H-1B visa program. Of the 65,000 H-1B visas that are available annually, 20,000 are reserved for foreign nationals with master's degrees from U.S. universities. The number of H-1B petitions submitted by employers nationwide exceeds the allocated quota, forcing a lottery mechanism to choose foreign workers without H-1B status. Employers should move quickly to reap the benefits of the new guidance before the final rule's January 17, 2025, effective date. Relying on highly trained foreign workers is projected to be drastically reduced under the H-1B program under the upcoming Trump government. Employers who depend on the visa program may face obstacles because of this. Although it is not assured, the Congressional Review Act (CRA) can be used to reverse regulatory acts carried out by prior administrations. Developing a plan for the forthcoming H-1B cap season, reviewing agreements with third-party placement agencies, reviewing job descriptions and requirements, consulting with legal counsel for cap-exempt eligibility, and training HR and immigration program professionals are all important tasks for employers. As the new border czar takes office, this will help businesses get ready for stricter immigration enforcement.

Article: Delaware Supreme Court Refuses to Enforce Noncompete Against Company Founder Who Joined Competitor. (Sheppard Mullin Richter & Hampton LLP, 17th December 2024)

Article Summary: Even though the defendant's actions will breach a more strictly confined covenant, Delaware courts are increasingly reluctant to "blue pencil" overly wide restrictive covenants. Even though the defendant's actions would breach a more strictly limited covenant, the Delaware Supreme Court can choose not to enforce overly broad restrictive covenants, as shown in Sunder Energy, LLC v. Tyler Jackson, et al. Following Tyler Jackson's departure to Solar Pros, the creator of the solar sales dealer in question sought to enforce a noncompete agreement against him in this case. The court ruled that Jackson's noncompete was too broad since it forbade his affiliates from making in-home product sales to customers. Since the noncompete remained in effect for two years after Jackson lost ownership of the incentive units—units that he was not free to transfer—the court also found that the term of the noncompete could have been infinite. Following the Court of Chancery's refusal, the Court of Appeal upheld the decision, stating that it "turns the analysis on its head and creates perverse incentives for employers drafting restrictive covenants." Overreaching and overbroad restrictive covenants are being more and more refused to be modified by Delaware courts, as this case confirms. To avoid overreaching their legal rights, employers should limit restrictive covenants and noncompetition measures to what is necessary to safeguard their legitimate economic interests.

Article: Environmental Enforcement Update: What to Expect in the Second Trump Administration. (Beveridge & Diamond PC, 18th December 2024)

Article Summary: Environmental enforcement priorities and methods in the United States are anticipated to undergo substantial changes during the forthcoming presidency of Donald Trump. The incoming staff at the DOJ and the EPA will examine outstanding enforcement matters, which can cause a temporary slowdown in the pace of those proceedings, so don't expect changes right away. Whether "acting" positions are filled by political appointments or by professional personnel is another key leadership consideration. Existing enforcement actions present strategic options for regulated organizations; but, considering the new administration, they should consult with legal counsel to evaluate whether there are opportunities to alter their strategy or legal arguments. It is believed that the incoming government would place a far higher value on compliance than enforcement and will drastically shift its focus away from the oil and gas industry, climate change, and environmental justice, all of which were enforcement priorities under the Biden administration. The next administration's top priorities include reducing rules on fossil fuel and industrial growth, expediting permitting, and resolving conflicts over state implementation plans—all to gain state respect. Supplemental environmental initiatives will be either strongly discouraged or explicitly forbidden in favor of swift and simple enforcement cases, which may include mitigation measures. In some areas, environmental NGOs are becoming more forceful in their lawsuits, and businesses should brace themselves for this trend. Companies still need to be very careful with how they implement their compliance programs, but the number of new cases being referred to and filed should be lower than it was under the Biden administration. Avoiding the priorities of the Biden administration under the Clean Air Act in favor of more recognized pollutants and situations, the Trump administration is likely to put an emphasis on compliance rather than enforcement. The EPA's national enforcement priorities will be updated to reflect this. New cases will most likely mirror the administration's legal interests, which means that enforcement of the Clean Water Act will be narrowed. Because of the importance of wetlands, enforcement actions involving these areas will be given low priority. Because these initiatives are perceived as promoting reconstruction and offering economic stimulation, the spotlight will most certainly be directed upon CERCLA Clean Up & Cost Recovery. Although the enforcement program is unlikely to be a priority for the next administration, it will keep pursuing the PFAS policy that was started by the previous Trump administration. The administration is expected to request a stay of lawsuit until revocation of the hazardous substance designation for PFAS and PFOS, as part of Project 2025. During the second Trump administration, federal-state coordination is anticipated to play a more significant role. If a state that has been granted enforcement authority chooses not to cooperate as a joint partner in enforcement operations, the EPA and DOJ are likely to proceed cautiously. Under Trump's administration, relief mechanisms including mitigation projects and third-party audits may have less restrictions. There must be some connection between the project and the environmental damage that has already occurred for these initiatives to be considered for funding. Voluntary and ecologically beneficial projects called Supplemental Environmental Projects (SEPs) are thought to be subject to new restrictions under the Trump administration. SEPs are the product of government agreements with accused violators. Businesses should think about the long-term effects of timing carefully, since it's important to finalize and lodge settlements with SEPs quickly. After the environmental criminal prosecutors from the DOJ's ENRD transferred to the Criminal Division, it's likely that criminal proceedings will follow suit. While the government is responsive to community concerns, enforcement actions are not likely to prioritize environmental justice. Given the high number of competing priorities for limited agency resources, it is suggested that the EPA Enforcement Office be dismantled and reorganized into program offices. Keep an eye on the following key posts in the incoming administration: the general counsel of NOAA, the Solicitor of the Interior, the Assistant Attorney General for the Department of Justice's Environment and Natural Resources Division, and the enforcement office assistant administrator for the Environmental Protection Agency.

Article: The Importance of Authentic Signatures in Patent Applications. (Vorys, Sater, Seymour and Pease LLP, 17th December 2024)

Article Summary: As a result of an unauthorized individual fraudulently using a registered practitioner's signature, the USPTO has discontinued proceedings in about 3,100 patent applications. Since patent applications require signatures to be manually entered by the designated signatory, this occurrence emphasizes the significance of following correct signing processes. If the USPTO suspects that a signature is not genuine, they may ask for proof of signature authenticity; furthermore, serious penalties apply to submissions made with the intent to mislead or avoid regulations. Practitioners should protect their credentials and report suspected fraud, stressed Kathi Vidal, who is the Under Secretary of Commerce for Intellectual Property.