The Defend Trade Secrets Act: What Employers Must Know in 2016

This act was recently passed by Congress and signed into law by President Obama. In short, this creates a federal cause of actions. Along with its benefits, however, the Defend Trade Secrets Act adds more responsibilities for employers. NDA agreements and independent contractor agreements now need to include special language about whistleblower provisions.

What’s Behind the Defend Trade Secrets Act of 2016?

This federal law became active on May 11th, 2016. The primary goal of this legislation was to protect confidential business information as a result of the devastating impact that misappropriation can have on the American economy.

According to recent research, trade secret theft causes yearly losses of more than $300 billion to the American economy and 2 million jobs, giving entrepreneurs little incentive or opportunity to innovate. That’s why the government decided to take action with this most recent law to protect companies further, but company owners should also know that they need to ensure that the legal agreements used with freelancers are properly written.

What Businesses Should Know About Trade Secrets

Trade secrets are typically classified as types of intellectual property that consist of details that have economic value, independently for a business that has been kept secret and is not easily obtained by others. This might include programs, devices, formulas, techniques, processes, compilations or methods.

It can come in the form of customer lists, pricing information, plans software, recipes, manufacturing details or designs. So long as a trade secret is kept a secret, it is of very high value to the developer or original creator.

Once it has been shared, however, its value is essentially lost forever. This is why it is imperative for businesses to take necessary precautions in order to restrict access to this vital information.

This is why the majority of businesses with trade secrets have agreements and documents signed by employees who may be involved in knowing about or working with any of the special data or project details.

Tightening Up Agreements Could Benefit Business Owners

One of the primary ways that businesses control dissemination of sensitive data like trade secrets is to use non-disclosure and confidentiality agreements in addition to other methods. In the past, trade secrets were primarily managed by state law. As these are complex documents, they are well worth protecting by hiring an intellectual property lawyer for review purposes. With laws like the Defend Trade Secrets Act adding further complexity and responsibility for employers, it is wise to set a calendar reminder to investigate these documents regularly.

The majority of states had adopted the uniform Trade Secrets Act, however, the Defend Trade Secrets Act of 2016 now gives a federal-private right of action for trade secrets. These are the primary elements of the Defend Trade Secrets Act:

  • The Act allows for an award of attorney’s fees for even punitive damages, if the misappropriation of a trade secret was made in bad faith or malicious.
  • Additional remedies could include damage awards, royalty payments, or unjust enrichment.
  • The Act allows for stolen trade secrets to be seized on a short-term basis until a hearing can be scheduled with all relevant parties.
  • Safeguards can be implemented to protect trade secret confidentiality over the course of litigation.
  • The Act carries a whistleblower provision that protects employees from disclosing trade secrets to law enforcement in order to investigate possible legal violations or in a complaint in any proceedings such as a lawsuit, if a filing is made under seal.

What This Means for Employers

Most importantly, the whistleblowers’ provisions of the Defend Trade Secrets Act must be disclosed in each employee contract that governs the use of confidential information like a trade secret. If an employer does not update these agreements, the failure to provide this disclosure could prevent him or her from recovering attorney’s fees or exemplary damages against an employee who did not receive this official notice.

Other Things for Employers to Keep in Mind

Employers should also consider the benefits of updating company policies, company manuals and employee contracts to be under compliance with these notice provisions. Bear in mind that even though the new federal legislation does not pre-empt state law, it is in the employer’s best interest to consult with an intellectual property attorney as soon as possible about all possible methods for protecting their trade secrets.

The loss of a trade secret can be devastating, but it is also imperative to protect employers from an employee who alleges that the contract was not valid. This is why any employer and business owner should always have a regular meetings scheduled with an intellectual property attorney to review existing company policies and contracts.

An experienced intellectual property attorney can advise the business about potential gaps and problems so as to rectify them quickly and avoid problems down the road. If you have further questions about what you need to do to take action with the Defend Trade Secrets Act of 2016, reach out to an experienced intellectual property attorney today.



USCIS Considering New Rule to Promote International Entrepreneurs

The United States Citizenship and Immigration Services has proposed a new rule that may allow international entrepreneurs falling into certain categories to be considered for temporary permission in the United States, also referred to as parole, in order to support that entrepreneur scaling or starting a business in the United States.

The public will have a period of 45 days from the date of publication in order to submit comments. According to USCIS Director, the economy has benefitted from the inputs and businesses of many immigrant entrepreneurs.

Who Would Qualify for This New Exemption?

Entrepreneurs who meet particular criteria for generating revenue, attracting investment, and creating jobs may be eligible to receive this benefit. The Department of Homeland Security would be able to exercise discretionary statutory parole authority for startup entity entrepreneurs whose stay within the country would have the potential to reap significant public benefits through the potential for rapid business growth and creation of new jobs. This would be evaluated on a case by case basis by the Department of Homeland Security. In order to qualify, businesses must meet the following criteria:

  • The startup must have been formed within the United States in the last three years.
  • The entrepreneur must have significant ownership interest in that startup maintaining a central role to operations. Ownership interests must be classified as a minimum of 15%.
  • The startup must have demonstrated significant potential for rapid business growth and creation of jobs. Evidence supporting this might include;
    • Receiving grants or awards of at least $100,000 from certain local, state or federal government authorities.
    • Getting a significant capital investment of a minimum of $345,000 from certain U.S. investors with qualified records of successful investments.
    • Partially satisfying either both or one of the above criteria in addition to other compelling evidence about the potential for job creation and rapid growth.

Entrepreneurs would be entitled to stay up to two years to grow the startup entity and oversee operations in the United States. There are certain conditions that may allow some entrepreneurs to request re-parole if the startup entity or the entrepreneur would continue to provide a major public benefit as shown by job creation revenue growth or capital investment.

The Obama Administration’s Commitment to Tackling Immigration Issues by Any Means Possible

The Obama administration has considered these startup visas as being beneficial for addressing job related growth and the potential benefits of revenue from startup entities begun by entrepreneurs. The international entrepreneur rule was originally proposed by the Whitehouse. This has been part of the administration’s immigration reform principles and was initially included in the bipartisan Immigration Bill that was passed by the Senate in 2013.

The administration has stated that they are taking all possible steps in order to address problems within the immigration system, given the challenges in getting the legislation passed during the Obama administration.

Those reforms suggested by the President in November 2014, if implemented in full, could have the potential to minimize the federal deficit by as much as $65 billion over the next decade and boost the country’s economic output by up to $250 billion.

Immigration is One of the Most Controversial Political Issues in Modern Times

Immigration has been a hot button issue for political leaders and legislators recently. Many companies rely on H1-B visas to bring skilled workers from other locations into the United States. However, that strategy has been fraught with problems given the issues with the H1-B visa lottery. It can be difficult to know whether or not an employee has a fair shot at receiving an H1-B visa, making it difficult for companies to plan ahead.

The Obama administration has recognized this and has attempted with this new rule to allow better support for international entrepreneurs whose companies could significantly benefit the American economy by giving those individuals the potential access to stay in the United States in order to grow their business. To learn more about immigration issues and how current rules and laws may impact them, reach out to an experienced New Jersey immigration attorney today.

U.S. Companies Face Challenges Hiring the Help They Need in Part Due to a Broken Immigration System

Many companies wanting to hire foreign employees argue that this is the only way to attract the kind of talent they need. In particular, as technology develops at a rapid rate, many U.S.-based employers believe they are unable to find the kind of help they need within U.S. borders. With so many issues in the H-1B visa lottery, many employers struggle to fill these critical roles.

Immigration attorney Vinay Malik has been active helping individuals and business owners with immigration challenges for years. As this is a constantly-shifting political and legal landscape, it’s important to work with an attorney who stays abreast of all the key issues related to immigration. If you are a business owner or entrepreneur who has questions about immigration-related issues or how this new rule could benefit you, it’s a good idea to set up a meeting with an experienced lawyer to talk options.


National Interest Waivers EB-2: Permanent Residence Visas That Do Not Need a PERM

A PERM process is very long and cumbersome. In some cases, a beneficiary may be eligible to qualify for a National Interest Waiver (NIW) EB-2, which essentially waives the PERM requirement. However, this is a high bar to meet. Those individuals who want to attempt to qualify under this requirement rather than seeking some other type of employment visa should talk to a lawyer.

According to this New Jersey immigration attorney, if eligible, a beneficiary may be able to use this route to obtain a green card in a much shorter period than the traditional PERM based green card process. You may be eligible for a second preference employment based visa in the event that you fall into any of the occupational categories as explained below. The primary sub-categories include:

  •      An advanced degree
  •      National Interest Waiver
  •      Exceptional ability

For the purposes of this article, the National Interest Waiver will be explored specifically.

Basics of the National Interest Waiver

Simply put, the National Interest Waiver is a second preference employment-based petition. In a typical situation, the individual would have to meet the Labor Certification requirement. Under this format, however, the Labor Certification requirement is waived if he or she can show that this would be in the best interests of the U.S.

Aliens interested in obtaining a National Interest Waiver will request waiving of the traditional labor certification on an argument that this is in the best interest of the United States.

National Interest Waivers are typically granted to those individuals who have exceptional ability and whose employment opportunities in the United States would significantly benefit the country. It is not necessary to have an employer sponsor you in order to obtain a National Interest Waiver and you can self-petition.

The labor certification can be filed directly with USCIS alongside form I-140, the petition for alien worker. In order to qualify, an individual must meet three of the below listed criteria and be able to show proof that it is in the best interests of the country for him or her to work in the United States. The criteria include:

  •      Recognition for significant contributions and achievements in your field from government entities, your peers or professional or business associations.
  •      Letters documenting a minimum of 10 years of full-time experience in your occupation.
  •      An academic record indicating an official diploma, certificate, degree or similar award from a university, college, school or other learning institution associated with the exceptional ability area.
  •      Memberships in professional associations.
  •      Evidence that you have commanded a salary in line with your exceptional ability.
  •      In the event that you are approved, children under the age of 21 and spouses could also be admitted to the United States under E-21 or E-22 immigrant status, respectively. Your spouse may also be eligible to file for an employment authorization document when you file for a permanent resident status or status as a green card holder.

What Is Exceptional Ability?

In order to qualify under the exceptional ability category, you must be able to demonstrate talent and ability in the arts, sciences or business. If you are eligible to pursue this route and have questions on whether or not this is in your best interest vs. pursuing a traditional green card, it is wise to set up a meeting with an experienced immigration attorney.

Many issues involving immigration including alternatives like the EB-2 may be extremely complicated and require proper submission of all documentation on deadline. It is recommended that you consult with an attorney well in advance of pursuing this so that you can be clear about the requirements and submit all the materials on time. This is the best way to increase your chances of having a successful application. Learn more about this opportunity by consulting directly with a New Jersey immigration attorney.

Some petitioners are curious about whether or not the work in question has to be research-based in order to qualify. The key issue in a petition of this nature is whether or not it shows that approval would be in the best interests of the U.S. While research, especially in the field of science and technology, is usually an especially strong case for meeting this requirement and receiving approval, you can speak to your immigration lawyer to learn more about other types of situations.

What is the Most Important Aspect of the EB-2 Petition?

As with all immigration documents, all materials make a difference, and the more accurate and timely your submission, the greater the chances of success. However, the advocacy section of the petition in this case is extremely important. Unfortunately, far too many cases that would otherwise meet the merit requirements are rejected due to poor submissions in terms of advocacy.

Without any checklists to ensure that you’re on the right path, this aspect of your petition can be confusing and overwhelming. The basis for meeting this is simply to convince a USCIS examiner that the case has merit. Sending in an argument that is either too long or too short could lead to an unsatisfactory outcome.

A successful submission with strike a key balance between providing details and arguments that support eligibility for this qualification without repeating too many facts. The arguments presented in this petition are crucial for determining the outcome of the case, so the entire petition should be reviewed in full with the help of a knowledgeable New Jersey immigration lawyer.


Vinay Malik is the founder of VKM Law Group where he practices Immigration and Naturalization Law. For more information, please feel free to visit our website ( and/or contact us or 609.279.2761 so we can provide you with an in-depth consultation and plan for your legal needs.