Estates and Trusts
Five Biggest Mistakes of Estate Planning
#5 - Inequity The fifth biggest mistake of estate planning is presuming to treat everyone equally, equaled only by the error of presuming to treat your loved ones differently because you don’t think they need anything or, in the other extreme, that they don’t deserve anything. Perhaps you’ve given more to one in life and intend to balance things in death. Unless you intend to include a detailed accounting (and even then?), I urge you to reconsider in this regard. Similarly, choosing who is to serve in what role (attorney-in-fact under a power of attorney, executor, or trustee, for instance) based on perceived fairness or not wanting to seem inequitable is a mistake. Have a reason, trust your judgment, and choose someone based on your sound judgment (for instance, she’s the oldest; he’s a lawyer; she’s the only one who hasn’t done time… these are all good reasons). Worse, appointing two co-fiduciaries (i.e., co-attorneys-in-fact, co-executors, or co-trustees, might be the biggest mistake of all - especially if you refuse to provide the two co-equals with a means of breaking a deadlock. If there are two empowered to make decisions and they don’t agree on something, if you’ve not authorized a coin flip or other means to break the tie (rock, paper, scissors, perhaps?!), their only recourse is to the courts. Don’t do it…don’t name two co-equal decision-makers to manage your affairs when you die. If you simply can’t help yourself, at least give them a fighting chance and tell them what to do when they disagree (if considering a coin flip, I suggest making it at least two out of three!). #4 – Sentimentality The fourth biggest mistake of estate planning is presuming one or more of your loved ones “wouldn’t want” something of yours, or alternatively, planning based on presumed values ascribed to the “objects of your bounty.” It is difficult to nearly impossible to know accurately what one of your kids might value over another, and you should take no offense by loved ones’ avoiding the subject altogether or making statements to the effect that they don’t want anything of yours. Everyone deals with death and the loss or thoughts of loss of a loved one in one’s own way. That said, it may, of course, be true that they don’t want your stuff; your style and tastes may be embarrassingly outdated. It may also be true that they don’t need anything, have the space for things they might want, or might not want to be perceived as thoughtless or greedy by asking for something of yours, for instance, before you are even in the ground! Rather than take offense or think, “How dare they!” consider over-sharing and discussing more with them, not less. Force them to face truths none of us generally care to acknowledge — first and foremost of which, you are going to die! Hate to be the one to burst that bubble for you, but it happens to all of us eventually. Too often, I see families left squabbling over misperceived intentions and failing/refusing to face these avoidable issues head-on, which brings us to the third biggest estate planning mistake. #3 – Communication The third biggest mistake of estate planning is failing to involve your beneficiaries in the planning. You need not give them a say in your plans necessarily or even seek their input per se, at least not everyone’s!, but that doesn’t mean you shouldn’t involve them at all, even if only to communicate that you’ve made a plan and where/how it can be found. Those who intend to play a role later should be consulted. The executor (or “personal representative”), who will oversee the administration of your probate estate; the trustee, who you will count on to manage assets you’ve opted to have held/protected from creditors and managed for the benefit of those you may not completely trust to manage them effectively for themselves (either because of their immaturity, addictions, or other special needs); and especially guardians of any minor children you might leave behind…these should all be consulted and confirmed before being named and saddled with such responsibilities. After all, they may not want or be able to handle the responsibility and/or their own life circumstances may not be fully known to you and may not make them the best choice. To minimize the risk of mistaken choices in this regard, don’t compound the mistake by failing to name a backup and a backup to the backup and also setting forth a means of picking the person you would want to be next in line should all else fail. #2 – Indecision The second biggest mistake of estate planning is changing your plans. This one comprises a whole series of mistakes. Changing one’s mind is ok, of course. The timing of a revised estate plan is one of the primary factors when litigation is later considered. Doing so after declining mental health, shortly before or after major life events, just prior to death (on one’s deathbed!), and/or with the involvement or input of less than all of one’s beneficiaries virtually assures legal wrangling after you’re gone, or, at the very least, likely breeds ill will among your loved ones in ways you can’t possibly fully anticipate. Compounding this mistake with less than full and open communication about your planning efforts (refer back to #3!) frequently sparks resentment and even hostility when you yourself have set different and differing expectations among those to whom you intend to benefit. If you opt to share your planning documents, do so with all of your beneficiaries. If you opt to make a change, be sure to communicate any changes to everyone, preferably with very specifically communicated reasons why. Oftentimes, in addition to breeding resentment for each other, change, especially uncommunicated changes to one’s estate plan, leaves your loved ones resenting you, even when they are the ones benefiting from the change! #1 – Inertia The number one biggest mistake of estate planning is not to plan. A favorite lyric from a group I’ve enjoyed since the 80s goes as follows: “If you choose not to decide, you still have made a choice.” Not planning, i.e., not creating a will or other document directing the disposition of assets upon your death, is the equivalent of deciding you want your loved ones to experience the costly, time-consuming, living hell that can often be the result of doing nothing. Don’t let inertia be your guide. Have a plan… execute the plan. Do it now; tomorrow may never come. Carpe diem!
January 29, 2024
Immigration Law
EB1 Multinational Manager/Executive Green Card via an L1A Intracompany Transfer Visa
Originally posted 08.11.18, content updated 01.24.24 What is the L-1A visa? The L-1A intracompany transfer nonimmigrant visa allows foreign national executive/managerial employees located outside the U.S. to work in the U.S. for an affiliated entity. An L-1A visa is a non-immigrant status and does not automatically give the foreign employee permanent residency or a “green card”. But it may in certain circumstances be a very useful gateway for a green card. What is the EB-1C Multinational Manager/Executive? The Employment-Based Immigration Petition, or EB-1C green card, is an employment-based petition for permanent residence. The EB-1C was designed for the most proficient and skilled foreign managers and executives. Some of the EB-1C criteria are similar to those of an L-1A visa. Persons who come to the U.S. as L1A workers can usually apply for an EB-1C green card after being in the U.S. for one year on the L1A status, provided they are not also an owner of the business. In some cases, qualified L1A executives/managers can apply for EB-1C green cards prior to the one-year anniversary of their L1A status, if the U.S. entity has been operational for over a year. L-1A Visas - The Intracompany Transfer BASIC REQUIREMENTS FOR L-1A For the Employee (Alien) to be eligible for an L-1A nonimmigrant visa, the following conditions must be met: The employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. The company for which the employee has worked for a year abroad must be related to the U.S. company in a specific manner. The sponsoring company must be doing business both in the United States and another country throughout the period of the transfer. Or the employee must be opening a startup in the U.S. The employee to be transferred must have been employed abroad in an “executive” or “managerial” position. The employer must be coming to the U.S. company to fill one of these capacities (executive or managerial). The employee must be qualified for the position by virtue of his or her prior education and experience. The L-1A alien must intend to depart the United States upon completion of his or her authorized stay (including extensions) but may also pursue permanent residence at the same time. ONE-YEAR CONTINUOUS EMPLOYMENT REQUIREMENT The one-year continuous employment requirement gives rise to several questions. Does the petitioner have to meet the one-year requirement within three years immediately preceding to filing the L-1A petition or entry into the United States or initial application for entry into the United States? The statutes and regulations are unclear and contradicting on this issue. Reading the Immigration and Nationality Act ("INA") on its face, the statute refers to the 3 years preceding the time of application for admission into the United States. Following this interpretation, the Code of Federal Regulations ("CFR") defines intracompany transferee as “an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year” by a qualifying company.[1] However, later in the same section, the CFR provides contradicting interpretation, stating that L-1A petition need to be supported by evidence that “the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition”.[2] In Matter of Kloeti, the court looked at the beneficiary employee’s initial application for entry into the United States.[3] The beneficiary first applied for admission to the United States as a nonimmigrant visitor for business (B-1); he then applied to change status to L-1. The court said that his application for change of status is not an application for admission to the United States under INA section 101(a)(15)(L). As the beneficiary had not employed for one year by the qualifying overseas company before his B-1 visitor application, he did not meet the one-year employment requirement for L-1 petition. The INS (USCIS) discussed that if a beneficiary works in the U.S. on H-1B visa before filing for L-1 and the H-1B is related to the qualifying foreign employer, they count the qualifying employment time prior to the H-1B application when considering the one-year employment requirement.[4] The INS provides a scenario where a beneficiary has worked in the U.S. for 3 years on H-1B nonimmigrant visa before filing for L-1. The INS officer says that for the L-1 petition, they consider whether the beneficiary has acquired one-year of qualifying employment within three years immediately preceding his H-1B application. The INS requires, however, that “the time spent in the U.S. as an H-1B be for a firm related in a qualifying capacity to the alien’s previous foreign employer.”[5] If the employee gets work-related training in the U.S. for a few months, does the training break his/her continuous employment at the overseas company? In Matter of Continental Grain, the foreign national stayed in the U.S. for 28 months as a nonimmigrant trainee in pursuit of further training related to his qualifying employment.[6] Within the twelve months immediately preceding his petition, the beneficiary had spent over four months in the United States. He had worked at his overseas company for over 5 months immediately preceding the training and immediately after the training, he worked there for more than 7 months. Under such circumstances, the foreign national met the one-year continuous employment requirement. (This case was decided before the current L-1 regulations came in force. “Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad but such periods shall not be counted towards fulfillment of that requirement.”[7]) EB-1C GREEN CARD - Multinational Executives and Managers EB-1C stands for the first preference employment-based immigrant classification for multinational executives or manages. This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity. In order to establish eligibility for EB-1C, the employee must have worked for a qualifying entity abroad for one year in the three years preceding the filing of the petition or preceding his or her admission to work for the petitioner as a nonimmigrant. If the beneficiary is outside the United States at the time of filing, the petitioner must demonstrate that the beneficiary’s one year of qualifying foreign employment occurred within the three years immediately preceding the filing of the petition.[8] If the beneficiary is already working in the United States for the petitioner, or its affiliate or subsidiary, at the time of filing, the petitioner must demonstrate that the beneficiary’s year of foreign employment occurred in the three years preceding his or her entry as a nonimmigrant.[9] In its recent Policy Memorandum issued on March 19, 2018, USCIS states that for the one-in-three employment requirement, it only looks at the three years immediately preceding the EB-1C petition. A period of employment with a different U.S. employer would not automatically disqualify a beneficiary. However, a break in qualifying employment longer than two years will interrupt a beneficiary’s continuity of employment with the petitioner’s multinational organization. Such breaks may include, but are not limited to, intervening employment with a non-qualifying U.S. employer or periods of stay in a nonimmigrant status without work authorization. Please consult Mo Syed on issues related to L-1A or EB-1C petitions. [1] 8 C.F.R. § 214.2(l)(1)(ii)(A). [2] 8 C.F.R. § 214.2(l)(3)(iii). [3] See Matter of Kloeti, 18 I&N Dec. 295 (Reg’l Comm’r 1982). [4] Letter, Bednarz, Chief, NIV Branch Adjudications, CO 214 L-C (Mar. 25, 1994), reprinted in 71 No. 27 Interpreter Releases 936, 938 (July 18, 1994). [5] Id. [6] See Matter of Continental Grain, 14 I&N Dec. 140 (D.D. 1972) [7] 8 C.F.R. § 214.2(l)(1)(ii)(A). [8] 8 C.F.R. § 204.5(j)(3)(i)(A). [9] See 8 C.F.R. § 204.5(j)(3)(i)(B).
January 24, 2024
Intellectual Property
Decorating Danger: Pitfalls in Using Images of Rooms Decorated with Your Furnishings
Everyone does it. A light fixture is featured in a prestigious publication, or a rug is shown in a home featured by an interior design publication. The image (and perhaps an image of the publication’s cover) is quickly reposted on Instagram, added to the company’s website, placed in promotional materials, and otherwise used to promote sales. There’s just one problem. Use of the image could result in costly charges of copyright infringement. Copyright Ownership: Under U.S. law, the general rule is that the author of a work owns the copyright in the work unless the work was created within the scope of their employment, in which case their employer owns the work. In most cases, the photographers working for publications like Interior Design, Architectural Digest, House Beautiful, or Coastal Living are not employees but independent contractors, which means that the photographers, and not the publications, own the copyright in the photos they take and the photos shown by the publications. As a result, the photographer (not the publication) must give permission for any reproduction of their photo, including reproductions on social media or websites. Photographers, not publications, generally own the copyright in photos featured in prestigious publications. Reproduction requires explicit permission from the photographer, extending to social media and websites. Strict Liability in Copyright Infringement: Reproduction without permission is copyright infringement. Copyright infringement is a strict liability offense, meaning there is no defense to whether infringement occurred — either something was copied without permission, or it was not. There are defenses that can be asserted , but these are directed to the amount of damages, not whether there has been infringement. Giving credit to the photographer or the publication is not a defense. Similarly, the fact the one didn’t make any money directly from the use of the photo is not a defense. The fact that an image was available online is generally not a defense. Nor is a court likely to find that such a use is a fair use — to find out if a use is fair use (essentially arguing that no permission was needed), it will probably be necessary to take the case to trial, involving expense in terms of time and money. Costs of Copyright Infringement: If a photographer has timely secured a copyright registration for their photos, they are entitled to statutory damages of up to $30,000 per infringement (and up to $150,000 per infringement if the infringement is shown to be willful). The idea of such an award is to deter future infringement. In addition, the photographer is entitled to their reasonable attorney’s fees if a timely copyright registration was made. Reproducing images without permission can lead to costly consequences. Photographers with timely copyright registration can seek damages up to $30,000 per infringement or $150,000 if willful, plus attorney’s fees. Importance of Written Permission: Having permission from the photographer would defeat a claim of copyright infringement, but that permission should be directly from the photographer and should be in writing. Permission from the publication in which the photo appears is probably not enough unless the magazine owns the copyright in the photos. Reality Check — Cease and Desist Letters: Think it can’t happen? It has already happened and will happen again. Entities you know have received cease and desist letters from photographers. Others have been sued (roughly half of the copyright infringement lawsuits filed in the U.S. involve the unauthorized use of a photograph). In either case, payment has likely been made, and either a license permitting the images to stay up has been obtained or the images have been removed. Entities have received cease and desist letters and faced lawsuits for unauthorized photo use. Roughly half of U.S. copyright infringement cases involve unauthorized photo use, resulting in payments and image removal. Protection Against Claims: The best way to protect against a copyright infringement claim is to make sure you have permission to use the photo showing your product or the room you designed or styled (if possible, take the picture yourself!). If a photographer refuses to give you permission, don’t use the image. If you are not sure if you need permission or have permission, contact me or one of my intellectual property colleagues at Offit Kurman — an ounce of prevention is worth a pound of cure.
January 24, 2024
Immigration Law
EB-5 Investor Visas - USCIS Redeployment Policy Change Announcement
Originally posted 07.28.20, content updated 01.22.24 This blog post may contain information that was accurate at the time of publication but could become outdated over time. We strive to provide relevant and timely content, but circumstances, facts, and data can change. Users are encouraged to verify the current status of any information presented and seek updated guidance where necessary. On July 24th, 2020, USCIS (the United States Citizenship and Immigration Services) issued a Policy Alert to clarify guidance regarding the redeployment of capital under the EB-5 program. This new guidance will substantially impact how EB-5 project sponsors and regional centers approach the future re-deployment of EB-5 capital. EB-5 investor program allows U.S. permanent residence for qualified foreign investors who place investments of $900,000 into regional centers. Below is a summary of the policy changes effective immediately: The purchase of financial instruments on the secondary market will generally not satisfy requirements for the redeployment of EB-5 capital. EB-5 capital may be redeployed into any commercial activity consistent with the purpose of the new commercial enterprise (NCE) to engage in the conduct of lawful business. Redeployment of EB-5 capital must be through the same NCE. Redeployment must be within the approved geographic area of the same regional center, including any amendments to expand the geographic area that is approved prior to redeployment. USCIS generally considers 12 months as a reasonable amount of time to redeploy EB-5 capital but will consider evidence showing that a longer period was reasonable. What You Need to Know Going Forward: Advance Planning and Regional Center Expansion Now that USCIS has clarified that the purchase of financial instruments will generally not satisfy requirements for redeployment and that the redeployment must occur within the geographic area of the same regional center, project sponsors and regional centers will need to plan further in advance for the redeployment of EB-5 capital. Project sponsors and regional centers should strongly consider expanding the approved geographic area of their current regional center through an I-924 amendment. This is a serious issue, especially for EB-5 projects sponsored by regional centers with limited geographic coverage since the options for redeployment could be very limited or impossible as a result of the new policy changes. Under this new USCIS policy, if a regional center was only approved for 2 counties, then the redeployment of EB-5 capital could only occur within those 2 counties. However, if the regional center successfully amended its designation to cover an additional 23 counties, then the redeployment could occur anywhere within the entire 25-county area. For new EB-5 projects considering regional center sponsorship, it is critical to select a regional center with a large geographic coverage area to provide increased flexibility for future redeployment. View the Official USCIS Policy Alert »
January 22, 2024
Immigration Law
H-1B Request for Evidence: Common Questions and How to Prepare
Originally posted 04.17.20, content updated 01.18.24 There are six common requests for evidence from USCIS. This article will quickly outline what these requests are. The most common requests for evidence from USCIS are the following: Needs of the Petitioner for the Services of the Beneficiary Specialty Occupation Maintenance of Status Validation Instrument for Business Enterprises (VIBE) Employer-Employee Relationship Beneficiary Qualifications Needs of the Petitioner for the Services of the Beneficiary This occurs most often with small businesses seeking to employ aliens in a professional role that is not common to the business. The evidence sought will show that the employee will serve in the specialty role acceptable for an H-1B visa, and not a position which would not qualify for H-1B visas. Additionally, the employer has to present evidence that the need for the employee is genuine. Specialty Occupation H-1B nonimmigrant visas are available for those who are performing ‘specialty occupations’ which require one of the following: A bachelor’s degree (or equivalent) is generally a minimum requirement for the position. The degree requirement is usual in the industry for the type of position. The position requires complexity such that it can only be done by someone with a specific degree. The employer usually requires a degree for the specific role. A request for evidence often includes the job posting (i.e., was a degree a requirement?), evidence of how the position is filled in the industry generally, or more information about the duties of the job (is it so complex that a degree is necessary for it?). Maintenance of Status This request for evidence occurs when an H-1B visa holder is trying to either change status or maintain status; the holder must show that the status never expired. If you are seeking to maintain your H-1B status, showing recent pay stubs will often suffice. If you are a student with an F-1 visa, evidence regarding class (such as assignments, grades) will usually be enough evidence to show that status was maintained. Validation Instrument for Business Enterprises (VIBE) A VIBE request occurs when the USCIS’ database does not match the information provided by the employer in the H-1B petition. USCIS is seeking to authenticate information about the business. They are looking for evidence that the business exists, which can include tax identification numbers or tax returns, articles of incorporation, or payroll documents. Any evidence that proves that the business is in operation will likely be sufficient. Employer-Employee Relationship This request for information is likely to occur if the employee works off-site or when the employee is working in a consultant role. USCIS is looking for evidence that there is an actual employer-employee relationship. Evidence should be submitted showing that the employer has effective control over the employee’s work and how the work is completed. Beneficiary Qualifications Positions eligible for H-1B visas require at least a bachelor’s degree, and the person working in that role must have the degree required for the position. A request for evidence will likely be asking one for the following: evidence of how the worker’s degree relates to the position if the field is different or for evidence that a foreign degree is equal to a Bachelor’s degree earned in the U.S. In lieu of a degree, three years of professional experience may be used to fulfill the beneficiary qualifications and a request for evidence may be necessary to evaluate whether the experience meets the standard for “professional.” One of the most common ways to submit evidence of experience is by using referral letters from past supervisors and employers.
January 19, 2024
Immigration Law
H-1B Workers with Part Time Work and Multiple Employers
Originally posted 07.24.19, content updated 01.18.24 Although the H-1B non-immigrant visa status has many restrictions, it does allow H-1B employees to work for more than one employer under H-1B status as well as work part-time. H-1B visa holders are eligible to work full-time, part-time, and for one or more employers, so long as they qualify as an H-1B occupation.[1] H-1B Pay Requirements for Part-Time Positions Under the U.S. Department of Labor requirements, H-1B employers must pay their H-1B workers the prevailing wage based on the specific type of work that they perform[2]. Additionally, they must pay more than the prevailing wage if they also pay their other employees who are in the same position a higher wage. This requirement applies to both full or part-time positions. It is important to clearly demonstrate to the United States Citizen and Immigration Services (USCIS) that the hourly rate satisfies the wage requirements. If you change from full to part-time, or vice versa, within H-1B status, you must first file an amended visa petition. H-1B Cap and Ability to Work Multiple H-1B Jobs There is a yearly limit to cap-subject H-1B petition approvals, with petitions to be submitted by April 1 and jobs to begin October 1. However, if you are already in H-1B status and find a new job that also meets the H-1B occupation requirements, then your new employer can petition for you right away, even if this position is cap subject or if the cap limit has already been filled. Employers for non-profits, government research institutions, or universities are another exception to this yearly cap-subject limitation and are allowed to petition for their H-1B worker at any time. If you have a H-1B visa that is cap exempt and find a new job with a cap-subject employer, this new employer can also petition for you right away. However, this is only allowed as long as you stay at with both employers. Six Year Limit for Part-Time Positions H-1B status is typically limited to six-years. This limit is also enforced for part-time positions and is based on the amount of time the H-1B visa holder is in the U.S. not on the amount of time one works in H-1B status. However, for those who have spent some time outside of the U.S. while in H-1B status, you can add the time you were outside to the end of your authorized stay. If your H-1B job is seasonal or you spend less than six months a year in the U.S., then you may be eligible to maintain your status indefinitely. H-1B Workers are Ineligible to Work on a Contract Basis Since the rules for H-1B eligibility require an employer-employee relationship and therefore H-1B employees cannot work on a contract basis. You must be on an employer’s payroll and be receiving a W-2 rather than a 1099 tax form. H-1B Visa Holders Going to School There are no restrictions for an H-1B employer to attend school. You can work part-time or full-time with H-1B status and enroll in school, so long as you satisfy the terms of your H-1B employment to maintain your status. [1] https://www.nolo.com/legal-encyclopedia/part-time-work-multiple-employers-h-1b-workers.html [2] https://www.dol.gov/whd/immigration/h1b.htm
January 18, 2024
Intellectual Property
Trademarks in Your Cereal Bowl
A Closer Look at Post’s Fruity Pebbles Trademark Application It’s likely that you, your kids, or your grandchildren have eaten them. Have you ever thought, though, that you could identify what you are eating just by the fact that multicolor rice crisps are in your bowl? It’s probably not the first thing you think of while you are eating, paying more attention to their crunch and the sound they make when they are in milk. We’re talking about Post’s Fruity Pebbles cereal, of course. While you may not have been thinking that you could identify the contents of your bowl just by looking at the colors in it, Post Foods LLC (“Post”) was thinking that. Thus, Post filed a U.S. trademark application to register the colors of Fruity Pebbles as a trademark for use in connection with breakfast cereals. Interestingly, that application was initially refused, and that refusal was affirmed in a decision issued by the Trademark Trial and Appeal Board on January 4, 2024. There were two main reasons for the refusal. First, in its application, Post defined the mark as “consist[ing] of the colors of yellow, green, light blue, purple, orange, red and pink applied to the entire surface of crisp cereal pieces,” as shown in the image below (the application did not claim the shape of the cereal crisps, which makes sense since each crisp has a different shape). However, the application sought registration of the claimed mark (the colors) for use in connection with breakfast cereals, not crisp cereal pieces or breakfast cereals consisting of crisp cereal pieces. Post argued that it sought registration of the colors shown in the drawing as applied to crisp rice cereal pieces. Ultimately, the Trademark Office held that the mark that Post sought to register was the combination of colors as applied to breakfast cereals. This was because the shape of the rice crisps was not claimed as part of the mark and because the application identified the goods as breakfast cereals (which could cover cereals in ring-like shapes as well as cereals shaped like rice crisps). Having determined what mark Post sought to register, the Trademark Office next considered whether the mark was registrable. The Trademark Office concluded that the claimed mark did not function as a source identifier and, thus, that it was not registrable. Why did the Trademark Office reach that conclusion? It was not because the claimed mark consisted of colors—the Trademark Office has long recognized that colors can be trademarks. Rather, it was because, in the Trademark Office’s view, Post had not come forward with sufficient evidence to show that consumers associated the colors used for Fruity Pebbles with breakfast cereals. The evidence showed that a wide variety of breakfast cereals had similar multicolor cereal combinations. Some were for other crisp rice cereals, and some featured diverse shapes. The Trademark Office referenced Fruit Loops; Cap’n Crunch’s OOPS! All Berries corn and oat cereal; Trix Fruity Shapes cereal; Trader Joe’s Fruity O’s cereal; Best Choice Fruity Crisp Rice cereal; Wegmans Fruity Rice Crisps cereal; Clover Valley Fruity Bites rice cereal and others to support this conclusion, as well as articles from various publications. With so many cereals using multicolor combinations, in the Trademark Office’s view, the use of a similar combination on Fruity Pebbles would not cause consumers to identify the cereal as being Fruity Pebbles. Additionally, the Trademark Office pointed out that much of the evidence submitted by Post to support its application pertained to its use of the multicolor combination on crisp rice breakfast cereals, not to the broader breakfast cereals identified in the application. In view of this decision, anyone interested in registering a trademark in the U.S. should keep the following in mind: In the U.S., it is possible to register colors and product configurations as trademarks (it is much more difficult to do this elsewhere in the world); While colors and product configurations can be registered as trademarks in the U.S., it is not an easy thing to do and often requires the submission of extensive evidence showing that consumers recognize the mark; and The advice of experienced trademark counsel is crucial in prosecuting applications like this, from identifying the goods to be covered by an application to assessing whether there is sufficient evidence to establish that a mark functions as a source identifier. At Offit Kurman, we can assist with all aspects of trademark prosecution; please reach out for a consultation or if you have any questions.
January 17, 2024
One Minute of Overtime
Exempt Employees
Welcome to One Minute of Overtime, where I will share insights on Labor and Employment Law topics, mostly related to minimum wage and overtime compliance issues. Compliance in this area of law is nuanced and technical, so it is critical for employers to audit and adjust their practices to remain compliant, so stop by to stay up-to-date and in-the-know. A frequent mistake occurs when employers misclassify employees as exempt because it is easier to pay a salary than deal with overtime and recordkeeping. By failing to track hours following misclassification an employer only increases its exposure.
January 17, 2024
Immigration Law
Israeli Citizens Eligible for E-2 Treaty Investor Visas as of May 1, 2019
Originally posted 08.23.19, content updated 01.15.24 The U.S. Embassy in Israel recently announced a long-awaited development that would open the doors to Israeli citizens looking to make an investment in the United States. The U.S. and Israel signed a treaty investor agreement, allowing for Israeli citizens to be eligible for E-2 Treaty Investor visas in the U.S. as of May 1, 2019. Back in June 2011, President Obama had signed legislation to add Israel onto the list of eligible countries for E-2 status. However, this was stalled as both countries needed to come to agreeable terms and authorize reciprocal rules for the issuance of visas.[1] Now that Israel has authorized a comparable status for U.S. citizens, the E-2 visa has become available for qualifying Israeli citizens. The E-2 Treaty Investor visa is a non-immigrant visa eligible for foreign nationals of a treaty country willing to invest a substantial amount of capital.[2] There are many specific requirements necessary to qualify for an E-2 visa, such as that one must show legitimate control of funds and the investment must be at risk. With Israel having one of the largest per capita number of start-ups of any country, the E-2 visa is an exciting opportunity for those interested in investing in a new or existing business in the U.S.[3] The E-2 visa is a viable option for entrepreneurs. The application process at the Embassy in Israel may allow for a 5-year visa. Before submitting your application, it is crucial to understand the requirements of the E-2 visa and provide substantial supporting evidence to prove your eligibility. With increased scrutiny arising from the executive order “Buy American and Hire American,” it is particularly important to show that your investment has the potential to create jobs for American workers. Investments Must be Substantial When considering what a substantial investment is, consular officials will evaluate the scope of the business plan and the funds necessary for developing a successful operation. Investment includes lease payments, the purchase of equipment, inventory, and so on. The business should be able to make a sufficient economic contribution within five years of becoming operational. The Business Must be Real and Operational Passive investments, such as in real estate, do not qualify for an E-2 visa. The business must be real and operational; it must be producing a commodity or service to qualify. The U.S. Department of State guidelines on an E-2 visa state that speculative investments held for potential appreciation of value (e.g. stocks) are prohibited. Individual Investors Individual investors pouring funds into a business need to carefully consider their five-year business plan - including staffing projections, objectives for the business, and overall costs and revenue. There is greater scrutiny for individual investors by consular officials to determine if their investment is at-risk. Intent to invest is not sufficient to qualify for E-2; the applicant must be close to starting operations. Corporate Investors and Emerging Companies Companies traded on only the Tel Aviv Stock Exchange may qualify for E-2 visa benefits in the transference of an essential, supervisory, or executive employee to operate in the U.S. This is true even if the investment by the Israeli company in the U.S. operations took place before the May 1, 2019 E-2 visa agreement. Israeli nationals must own 50 percent or more of the business applying for the E-2 registration. This may be challenging for entrepreneurs and emerging companies that are seeking seed or venture funding. It is critical to be aware of how equity investments could impact E-2 visa eligibility. [1] https://www.lexology.com/library/detail.aspx?g=beee1e3b-242b-41ee-ab18-3663eede9c3d [2] http://syedfirm.com/e-2-treaty-investor-visa/ [3] https://www.natlawreview.com/article/e-2-treaty-investor-visa-open-to-israeli-citizens
January 15, 2024
Immigration Law
L1 Visa Document Checklist
Originally posted 08.23.19, content updated 01.12.24 L1 Visa Document Checklist L-1 petitioners and their sponsors must meet the stringent requirements under US immigration rules to submit extensive supporting documentation that supports the application for an intracompany transfer visa. The following L1 visa document checklist summarizes the paperwork that will be needed to evidence applicant eligibility. The following checklist contains some of the main documents that will need to be submitted in support of the petition: Foreign Company Documents: Articles of incorporation Stock certificates Audited accounts Financial statements of business Promotional materials of business Organizational chart, including total number of employees and position held by you as the transferee Detailed statement from authorized representative explaining ownership and control of company U.S. Company Documents: Articles of incorporation Stock certificates Audited accounts Financial statements of business Promotional materials of business Business license Corporate by-laws Detailed business plan Organizational chart, including total number of employees and position held by you as the transferee Detailed statement from authorized representative explaining ownership and control of company If you are coming to the U.S. to setup a new office, evidence will also be required to show the establishment of new premises, for example, a lease for office space, sales contracts and copies of applicable business permits etc. Please note that the above checklists are by no means exhaustive and legal advice should always be sought based on your specific business operations. L1 visa document checklist – the eligibility criteria The L1 visa permits key professional employees to transfer from an overseas office to a parent, branch, affiliate, or subsidiary of the same company in the United States or, alternatively, to set up a new affiliated office. There are two types of L1 visa: the L1A and the L1B. The L1A visa is for employees working in an executive or managerial role, whilst the L1B visa is for those who have specialized knowledge of the company’s products, services and procedures that are key to its success. In either case you must have worked for at least one year out of the preceding three years prior to your application and be seeking to enter the U.S. to undertake work in the same or similar capacity. L1 visa document checklist – the petition paperwork Prior to submitting your application for an L1 visa, your U.S. employer will be required to file a petition on your behalf with the U.S. Citizenship and Immigration Services (USCIS) using Form I-129, together with supplemental Form I-129L. For larger employers, prior approval may already have been obtained under what’s known as a Blanket L petition. This permits multiple key personnel to apply for L1 status without waiting for individual USCIS petition-approval. However, to obtain a blanket petition certain regulatory requirements must be met, in particular that the company: Has transferred ten L1 managers, executives, or specialized knowledge employees to the United States in the previous twelve months, or Has U.S. subsidiaries and affiliates with a combined annual sales of at least $25 million, or Has a U.S. workforce of at least 1,000 employees. If your employer does not meet the above criteria and/or has not obtained blanket approval, an individual petition will need to be filed on your behalf, together with extensive documentation to prove the following: That there is a qualifying relationship between the foreign company and the U.S. company, meaning that there needs to be common ownership and control. That you have worked for the foreign company continuously, on a full-time basis, for at least one year within the last three years prior to filing the petition. That the identified relationship between the overseas and U.S. companies existed for the duration of your one-year period of employment abroad. That you have worked as a manager, executive or specialized knowledge employee for the foreign company, and are seeking work in the same or similar capacity in the U.S. L1 visa document checklist – the visa paperwork Once the petition has been approved by USCIS, your employer will be given a notice of approval on form I-797. You will then need to submit your online visa application with the Department of State using Form DS-160. You will also be required to schedule an interview at your local U.S. Embassy where you will need to attend with various documents, including the following: The visa interview appointment letter The DS-160 visa application confirmation page The DS-160 visa application fee receipt A valid passport with at least six months left prior to its expiry Any old passports held by you Your most recent resume or CV Two recent color photographs of your face A copy of the I-129 petition submitted to USCIS The I-797 approval notice from USCIS A letter from your employer to the consulate requesting an L1 visa You will also be required to provide detailed documentation in support of your eligibility for an L1 visa, including but not limited to evidence of your previous and proposed role within the overseas and U.S company respectively. In the event that you fail to attend with the necessary documentation you risk your application for an L1 visa being delayed, or even denied. L1 visa document checklist – the potential pitfalls An approved petition does not, in itself, guarantee that you will be granted an L1 visa. Your eligibility will still need to be determined based on the information contained within your application and the documentation in support. Needless to say, if that information is deemed incomplete then your application may be significantly delayed, if not completely denied. At the very least, where information is lacking, there will be a request for further information before a final decision is made on your visa application. Furthermore, even where your application and supporting documentation are satisfactory and complete, you will still need to be interviewed by a consular officer based on that information. You will be asked detailed questions relating to the company that you work for and the capacity in which you have been, and will be, employed by the overseas and U.S. company respectively. For L1B applicants, in particular, the questioning by a consular officer during interview can be challenging, requiring a persuasive explanation to prove how your specialized knowledge is vital to the overall functioning and competitiveness of the business. You can significantly improve your chances of being successfully granted an L1 visa by ensuring not only that your paperwork is correct, but by answering any questions as openly and as fully as possible.
January 12, 2024
Litigation
How to Avoid Estate Litigation
Trust and estate litigation is an all-too-common outcome for individuals and families in the wake of a loved one’s passing. But why? Is it just about money? Inter-personal and family disagreements? Or something else entirely? The answer inevitably varies. Many, if not most, estate disputes have some underlying familial distrust and disagreement. These family issues can often boil over in the wake of a loved one’s passing. Yet, not all estate disputes arise out of preexisting family issues. It is not uncommon for family dynamics to change and for problems to arise in the face of a loved one’s passing. But how can this be prevented? Communicating with family and planning ahead are just two things to consider when trying to avoid unnecessary estate litigation. Though seemingly insignificant, simply communicating with family, friends, and loved ones that you have an estate plan is vital. Now, this does not mean that you must divulge what your estate plan is, but letting those in your life know that you have one and where and how to access it when the moment comes is important. It aids to remove the element of surprise and ideally with it, the potential for distrust as well. Additionally, letting beneficiaries know who you have chosen to act as your executor is equally important. Informing those affected who will be in charge after your passing again removes the element of surprise, which all too often can breed distrust and discomfort. Planning ahead goes hand in hand with communication. Many Americans put off creating a will or estate plan, seeing it as something to take care of in the future. Something that is not relevant to them today. Yet, this way of thinking is generally an avoidant one. Though it can be difficult to plan for our own passing, doing so can alleviate the myriad of questions and concerns that can occur absent an estate plan. Through developing an estate plan, the execution of your wishes can be better assured and allows for your loved ones to be more informed. This allows for more clarity regarding the wishes and intentions of the deceased and oftentimes makes a meaningful impact in dissuading a loved one’s potential lawsuit. Trust and estate litigation may be common, but through planning ahead and having open communication, it allows for a deeper understanding of our loved one’ wishes and can help prevent minor interpersonal disagreements and familial distrust from devolving into litigation. Seek legal counsel to ensure that your interests are protected. If you have any questions about this or Estate Planning/Estate Litigation topics, please contact me at austin.hinel@offitkurman.com or (703) 745-1899.
January 10, 2024
Immigration Law
Next Steps After the H-1B Lottery
Originally posted 05.5.19, content updated 01.10.24 After the U.S. Citizenship and Immigration Services (USCIS) finishes the H-1B lottery, they will send out receipt notices, process and adjudicate petitions, send out approval notices, and then send reject notices along with the filed petition and filing fees.[1] Prior to sending out a notice of receipt, the USCIS must first verify the fees and signatures and make sure the form has been filled correctly. If properly filled, USCIS will stamp the petition with the date of arrival at the service center. If the application is not properly filled out, they will reject the petition and return it to the employer. A paper file will be created for all petitions that were properly filled. The file is sorted into cap and non-cap cases.[2] Notice of Receipt The first step the USCIS takes after it finished the H-1B lottery is to send out notices of receipt to petitions that were selected in the lottery. For petitions not selected in the lottery, nothing will be sent until the rejection notice. If you filed for premium processing, then you would first receive an email receipt notice and then a hard copy notice of receipt in the mail. Notices of receipt for H-1B master’s cap petitions are usually sent prior to the H-1B bachelor’s cap petitions. Once you receive a notice of receipt you can check your status on the USCIS website by using your receipt number.[3] Adjudication Process Once the receipt notices are all sent, the USCIS will begin to adjudicate petitions. Depending on where your petition was filed, you will receive a USCIS number beginning with WAC or EAC. WAC is the California Service Center and EAC is the Vermont Service Center.[4] Once the petition is adjudicated there are several scenarios that could occur: your case could be approved; you could receive a Request for Evidence (RFE), submit a response and eventually get a notice of approval; or after submitting the response to the RFE, your petition could be denied. Receiving an approval notice – After you receive your notice of receipt you will get an approval notice. For premium processing you will first receive an approval notice by email and then by mail. For regular processing you will only receive the notice by hard copy mail. Receiving an RFE - If you receive an RFE you will need to carefully review the notice and respond by submitting the additional evidence required. This process can take several weeks to months. After the response is sent, you will either receive an approval notice or a denial notice. Reject Notices Sent For the H-1B petitions that were not selected in the lottery, the USCIS will send a reject notice. These notices are not sent immediately. Rather, you will receive it only after all of the premium processing petitions are taken care of and the notices of receipt have been mailed to H-1B petitions that were selected in the lottery. In the past, these notices were not sent until mid to late July. You will also receive the rejected petition and filing fees that were submitted. [1] https://redbus2us.com/steps-after-h1b-lottery-processing-approval-flow-chart/ [2] https://redbus2us.com/h1b-visa-petition-processing-steps-at-uscis-service-center-adjudication-info/ [3] https://egov.uscis.gov/casestatus/landing.do [4] https://redbus2us.com/h1b-visa-receipt-case-number-meaning-check-status/
January 10, 2024
Intellectual Property
Behind the Headlines: Understanding the Nuances of Mickey Mouse's Public Domain Status
Public Domain Day is a relatively new celebratory event observed on January 1. The purpose of this day is to celebrate the entry of works that were protected by copyright into the public domain. Before Public Domain Day, articles routinely appear reporting on the works entering the public domain name. In recent years, works entering the public domain have included The Great Gatsby (which became the basis for a musical that is likely heading to Broadway), The Jazz Singer, Metropolis, and Winnie-the-Pooh. Before this year's Public Domain Day, articles heralded Mickey Mouse entering the public domain. The implication, of course, is that Mickey Mouse will thus be free for everyone to use — after all, isn't that what it means when something enters the public domain? Not necessarily. Mickey Mouse is not necessarily entering the public domain, but his first appearances in two shorts, Steamboat Willie and Plane Crazy, are. Anyone wanting to use Steamboat Willie or Plane Crazy is free to do so. Either (or both) can be shown without permission from or the need to pay royalties to Disney. The same may be true of the version of Mickey Mouse shown in Steamboat Willie and Plane Crazy. That version of Mickey Mouse is in black and white, does not speak, and does not wear red pants. However, like many other well-known characters (Sherlock Holmes and James Bond, for example), Mickey Mouse has changed over time and has traits and characteristics that are still protected by copyright; only the earliest works featuring Mickey Mouse are now in the public domain. So, Mickey Mouse, as he appeared in Fantasia, is still off-limits. This is why the trailer for the recently announced slasher film Mickey's Mouse Trap uses the Steamboat Wille version of Mickey Mouse as its villain. The survival horror game Infestation: Origin also features the Steamboat Wille version of Mickey Mouse as its villain. That version of Mickey Mouse also appears set to be the villain in another recently announced untitled horror film. There is another reason Mickey Mouse is not free for everyone to use. Mickey Mouse is undeniably a symbol of Disney, and a consumer seeing goods or services being offered in conjunction with Mickey Mouse is likely to believe that those goods or services are associated with or endorsed by Disney. In other words, Mickey Mouse functions as a trademark. Indeed, Disney has multiple trademark registrations for Mickey Mouse (and for Minnie, Goofy, Pluto, Donald, and many other characters), and any effort to use Mickey Mouse to indicate the source of a product or service will likely be met with a claim of trademark infringement. Moreover, Walt Disney Animation Studio adopted a clip from Steamboat Willie as its logo, strengthening its ability to claim the early version of Mickey Mouse as a trademark. Practical considerations will also limit the availability of Mickey Mouse. Disney is no stranger to litigation and is positioned to impose significant costs on anyone it believes is using more of Mickey Mouse than they are entitled to use. In fact, Disney may very well seek out cases to litigate to concretely establish the scope of its rights in Mickey Mouse (the estate of Sir Arthur Conan Doyle did this with respect to Sherlock Holmes, resulting in a ruling in 2014 that at the time, certain of Holmes' characteristics are in the public domain and that certain of his characteristics are not). So, while we can celebrate the entry of Steamboat Willie and Plane Crazy into the public domain, one shouldn't assume that Mickey Mouse is likewise now in the public domain. The only sure thing to come from such an assumption is litigation, as it has been reported that Disney has announced its intention to continue to protect its rights. If you have any questions about using Steamboat Willie, Plane Crazy, or any other work that is in the public domain, reach out to Offit Kurman's intellectual property group for a consultation.
January 9, 2024
Family Law
Navigating the Path of Divorce Post-Holiday Season
A Guide to Moving Forward Divorce is a highly emotional process, and the holidays may offer a temporary reprieve from the intensity of these emotions. However, once the festive season concludes, individuals may find themselves emotionally prepared to confront the challenges of divorce. Once the New Year begins, it may become clearer that the issues within the marriage are insurmountable. Taking this time to reflect can provide individuals with the clarity and determination needed to initiate the divorce process. Many couples choose to delay divorce proceedings until after the holidays to maintain a sense of normalcy for their children. Proceeding with divorce after the holidays allows parents time to begin working on creating a stable schedule and supportive environment for their children as they navigate the changes ahead. The holiday season often comes with increased spending, and couples may delay divorce proceedings to avoid the additional financial strain during this time. Waiting until after the holidays can provide individuals with an opportunity to assess their financial situation, plan for the future, and make informed decisions about the division of assets and financial responsibilities. Post-holiday divorce proceedings allow individuals to set realistic expectations for the process ahead. It provides an opportunity to gather necessary documentation, consult with legal professionals, and develop a realistic timeline for the divorce proceedings. By approaching the situation with a clear plan, individuals can reduce stress and uncertainty. Consulting with legal professionals is a crucial step when proceeding with divorce. After the holidays, individuals can begin to gather necessary documentation, such as financial records, to facilitate the legal process. Seeking legal advice early on ensures that individuals are well-informed about their rights, responsibilities, and the potential outcomes of the divorce. While the decision to proceed with divorce is undoubtedly challenging, waiting until after the holidays can provide individuals with the time and space needed to make informed choices. By reflecting on the state of the relationship, considering the well-being of children, and planning for the financial and emotional aspects of divorce, individuals can navigate this difficult journey with greater clarity and resilience.
January 8, 2024
Immigration Law
U.S. Visa Options for Foreign Businesses and Entrepreneurs
Originally posted 03.22.20, content updated 01.8.20 This article will explore the L intracompany transfer visa and the E treaty investor and trader visa. Foreign businesses regardless of nationality can send executives, managers, and other workers to work for existing or new offices in the U.S. under the L visa category. The E visa category is available only to businesses and nationals of certain countries that have treaties with the U.S. What you Need to Know About the L-1 Intra-Company Transfer Visa The L-1 is a nonimmigrant, intracompany transferee visa classification. The L1 visa permits key professional employees to transfer from an overseas office to an existing office of a parent, branch, affiliate, or subsidiary of the same company in the United States or, alternatively, to set up a new office. The L-1A allows for a U.S. employer to transfer an executive or manager. The L-1B is for an employee with specialized knowledge. Title 8, Code of Regulations (8 CFR) defines an intracompany transferee as someone who has been employed abroad continuously for one year (by the qualifying entity) and within the three years preceding their L-1 application and admission into the U.S. Individuals who take brief trips for business or pleasure (on B-1 or B-2 visas) will not be viewed as interrupting their one year of continuous employment. Requirements for Eligibility The employee must have worked for at least one year out of the preceding three years prior to the application and be seeking to enter the U.S. to undertake work in the same or similar capacity. That there is a qualifying relationship between the foreign company and the U.S. company, meaning that there needs to be common ownership and control. If you are coming to the U.S. to setup a new office, evidence will also be required to show the establishment of new premises, for example, a lease for office space, sales contracts and copies of applicable business permits etc. For larger employers, prior approval may already have been obtained under what’s known as a Blanket L petition. This permits multiple key personnel to apply for L1 status without waiting for individual USCIS petition-approval. However, to obtain a blanket petition, there are certain regulatory requirements which must be met, in particular that the company: Has transferred ten L1 managers, executives, or specialized knowledge employees to the United States in the previous twelve months, or Has U.S. subsidiaries and affiliates with a combined annual sales of at least $25 million, or Has a U.S. workforce of at least 1,000 employees. L-1 Visa Terms Family Members: The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. Period of Stay: Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. Restrictions: You must work for your employer and solely your employer during your time in the U.S. Examples Law firms overseas wishing to set up offices in the U.S. can use the L visa category to set up new offices in the U.S. These do not need to be staffed by U.S. lawyers as long as they are not providing legal services and are engaged in marketing activities. Manufacturers of wine who sell wine to the U.S. can set up marketing offices in the U.S. Tech firms who develop IT products and service U.S. customers. What you Need to Know About the E Treaty-Trader Visa E-1 Treaty-Trader Visa The E-1 Treaty Trader visa is a nonimmigrant classification that allows for a foreign national of a treaty-trader country (a country that maintains a treaty of commerce with the U.S.) to be admitted into the U.S. for the purpose of engaging in international trade. This visa is applicable to individuals or employees of a qualifying organization or company who will be engaged in international trade. Trade to be considered for this category includes both physical movements of goods or transportation and non-physical services (including banking, insurance, tourism, journalism, or technology). E-1 Requirements for Eligibility Individual They must be a national of a qualifying treaty country. They must show that they intend to engage in “substantial trade.” The United States Citizenship and Immigration Services (USCIS) states that this generally refers to, “the continuous flow of sizable international trade items, involving numerous transactions over time.” They must carry out “principle trade,” meaning at least half of all trades are between the U.S. and the designated treaty country. They must prove intent to return to their home country at the end of the visa. Employee They must be the same nationality of the principal employer and the principal employer must have the nationality of a qualifying treaty country. They must meet the definition of an “employee.” They have a supervisory or managerial role that requires specialized knowledge or skills. The employer must be either in the U.S. on a current E-1 visa or if applying outside of the U.S., they must prove that they can meet the E-1 qualifications. E-1 Visa Terms Family Members:Spouses and unmarried children (under the age of 21) can be granted E-1 nonimmigrant visas as dependents of the treaty trader or employee. They do not need to have the same nationality as the qualifying treaty country. Period of stay:Those with E-1 status are allowed to stay for a period of two years. Extensions of two years are allowed, with no limit to the number of extensions as long as the treaty trader or employee can continue to show that they qualify, including proof of intent to return to their home country. An E-1 visa holder may travel outside of the U.S. and will likely be granted a two-year extension upon their re-admission into the U.S. However, this also means that family members who are dependents of the treaty trader or employee will also need to travel abroad and reenter the U.S. for an automatic two-year extension. Restrictions:The E-1 visa holder may only work in the area in which they have been approved for when their classification was granted. However, it may be possible for them to work for their qualifying employer’s parent company as long as there is an established relationship among the organizations, the employment requires executive, supervisory, or essential skills, and the terms of the employment have not otherwise changed. E-2 Treaty Investor Visa One alternative to the E-1 Treaty Trader visa is the E-2 Treaty Investor visa. For those with significant funds to invest and from a treaty trader country, this may be an option. There are two ways to apply for an E-2 Treaty Investor Visa. If you are in the U.S. on another status, you can file a petition with USCIS to change your status to an E-2 Visa. You must file an I-129 form, complete the E-2 visa supplement, and provide all documentation required to support your E-2 visa request. If your petition is granted you will be in E-2 status which typically lasts two years. To change the status of any dependents that are also in the U.S., you must file an I-539 form. If you wish to petition for an E-2 visa and are outside of the U.S., you will need to apply through a consulate. You will file an online application DS-160. You will also need to complete a DS-156E supplement. Instructions on how to do so are outlined on the website of the relevant consulate. Documentation to include is typically the same as those you would submit if filing in the U.S., however you should still check with the consulate to see if other documents are required. Visas are typically granted between 2 and 5 years and allows for you to leave and enter the U.S. for travel. If you have dependents, they will file separate DS-160 applications. E-2 Requirements for Eligibility The applicant must be a citizen of a treaty country. This visa is only available to individuals from the countries that the U.S. has a treaty agreement with. Visit the Department of State website to view the complete list. You must have invested or be in the process of investing funds. There are three requirements for this investment criteria:You must show legitimate possession and control of funds. The funds to be invested must have been obtained lawfully. You must provide evidence on how you acquired the funds, either earned or as a gift. Some examples of evidence include tax returns, bank statements, documents to support source of money (e.g. proof of sale if you sold property) investment accounts, etc. This may be challenging in some countries that do not have records available. All funds invested are subject to risk and loss. This provides proof that you are irrevocably committed. At risk money includes credit card, debit, or other loans as long as the debts are not secured by business assets. You must be close to starting the business. Although no work can be done prior to the visa approval, the business should be ready. This may include a signed lease, a business bank account, an established website, and having purchased everything needed to start the business. You must be in a position to develop and direct the business. The visa applicant must be the one to direct and run the business. This also means that the applicant must have the appropriate education or experience necessary for the position and business. Your investment must be substantial. The U.S. Citizenship and Immigration Services (USCIS) has not defined what they mean by “substantial,” and there is no set minimum or maximum amount. This depends on several variables, including the total capital of investment in relation to the total amount required to set up the business. Only working capital (not cash sitting idle in a bank account) will be considered by the USCIS as part of an investment. Your investment and business cannot be marginal; meaning, you cannot start a business just for you and your family. There must be a business plan in place to show growth over a 5-year period or that you plan to hire employees. You must intend to return to your home country after the visa expires. To document this, provide a signed affidavit stating such. You do not need to show ties to your home country. E-2 Visa Terms Family Members: E-2 derivative visas are available for the spouse and children (under 21) of the E-2 Investor. Children may attend school in the U.S., but unlike the spouse, they are not authorized to work. Spouses are eligible to work by applying for an Employment Authorization Document (EAD). Period of Stay: If you received E-2 status through change of status, it will generally last two years. If processed at the consulate, the visa can last five years. Restrictions: A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. Examples Following the previous approval of an E-2 applicant by Mr. Syed, a local Korean restaurant business wanted to add a new investor. The initial E-2 applicant was a student at a local business school who had worked for her family’s restaurant business in Korea. She wanted to establish her own restaurant here in the United States. She also wanted to bring an essential employee to work in the restaurant. Three years later, her business was successful, and she wanted to add a second investor. Given his success in the initial application, she returned to Mr. Syed, where he was able to obtain an E-2 visa for the new investor. With their business expanding, Washingtonians will be able to sample a range of Korean delights.
January 8, 2024
Family Law
What Happens to My Business During Divorce?
Divorce is a challenging and emotionally charged process, and when business ownership is thrown into the mix, it can become even more complex. For business owners, the stakes may be high, as the outcome of a divorce can significantly impact the future of their business. One of the initial steps regarding a business is to value the business or the owner’s interest in the business. Business valuation often involves assessing the company’s financial statements, assets, liabilities, and future earning potential. This process can be intricate and usually requires the expertise of financial professionals, such as forensic accountants or business valuation experts. In many jurisdictions, marital assets, including businesses, are subject to equitable distribution. Equitable distribution does not necessarily mean equal distribution but rather what is deemed fair and just by the court. Factors such as the contribution of each spouse to the business, the length of the marriage, and each party’s financial and non-financial contributions are considered during this process. There are several potential outcomes for the business in a divorce: One spouse may choose to buy out the other’s share of the business, allowing them to retain sole ownership. This buyout is typically based on the valuation of the business and the agreed-upon terms negotiated during the divorce proceedings. In some cases, divorcing spouses may opt for continued co-ownership of the business. This arrangement requires a well-defined and often legally binding agreement outlining each party’s responsibilities, decision-making authority, and financial contributions. Another option is to sell the business, with the proceeds being divided between the spouses according to the terms of the divorce settlement. The sale may be facilitated either on the open market or through a negotiated private sale. To protect their interests, business owners can take proactive measures before and during marriage. Implementing prenuptial or postnuptial agreements that specifically address business ownership can provide clarity in the event of a divorce. These legal documents can outline how the business will be valued, divided, or managed in the event of marital dissolution. Navigating the complexities of divorce and business ownership requires the expertise of professionals. Engaging attorneys with experience in family law and business matters is important. Additionally, financial experts, such as forensic accountants or business appraisers, can provide valuable insights into the financial aspects of the business and assist in the valuation process. When businesses are an issue in divorce, interest owners should be prepared for an examination of their business and its financial intricacies. By seeking professional guidance, understanding their legal rights and responsibilities, and exploring the available options, business owners can increase the likelihood of reaching a fair and equitable resolution during this challenging time.
January 5, 2024
Immigration Law
Updates to the H-1B Work Visa Petition Process for 2020 Applicants and What Employers Need to Know
Originally posted 2.28.20, no content changes. This blog post may contain information that was accurate at the time of publication but could become outdated over time. We strive to provide relevant and timely content, but circumstances, facts, and data can change. Users are encouraged to verify the current status of any information presented and seek updated guidance where necessary. The process for obtaining H-1B visas, which allow employers to hire foreign nationals to work in the U.S., has undergone significant revisions. These changes impact new hires that have recently graduated from U.S. universities, as well as foreign workers applying to jobs from overseas, or those workers who are already in the U.S. but changing to H-1B visas from another previous visa status. Changes by the U.S. Citizenship and Immigration Services have gone into effect this year, impacting employers who rely on foreign national employees and candidates looking to start work in October 2020. In December 2019 the USCIS announced a successful test run of the new H-1B registration system, which introduced key changes to the filing and lottery process that both employers and workers should be made aware of. The advantage of this system is that the bulk of the petition process takes place after the lottery selection has been made. In the past, fully completed petitions supported by the legally mandated evidence were due even before the lottery took place. Under the present system, employers can participate in the lottery in an abbreviated process and avoid spending time and money on applications that eventually do not get past the lottery stage. The USCIS has introduced a new online-only H-1B Registration tool, which according to an official statement “[streamlines the] processing by reducing paperwork and data exchange.” An initial registration period will run from March 1 through March 20, 2020. The new tool, which was first seen in a nearly-identical preliminary phase during late 2019, requires less information about the sponsored applicant to be provided by employers than in previous years. Employers are no longer required to submit a certified Labor Condition Application or provide information regarding wages and other details of employment during the registration process. To access the Online Registration tool, employers and attorneys sponsoring beneficiaries must create accounts with the USCIS here. Candidates looking to submit H-1B registration require a sponsor or employer to be considered for a work visa. The current quota cap for H-1B visas is 65,000 for regular registrants and 20,000 for registrants with master’s degrees. To obtain a work visa, candidates must first be successful in a lottery via a computer-generated random lottery. Registrants are expected to be made aware of their lottery status by April 1. Unselected registered candidates are placed on a list of reserves. Full details regarding the new registration process are publicly available and can be found in the DHS Federal Register found here. If you have any questions about H-1B Visas or would like further information about this or any other immigration law matter, please contact me.
January 5, 2024
Estates and Trusts
2024 Update – Federal Exemption and Exclusion Amounts
Beginning January 1, 2024, the IRS has increased the federal estate tax exemption to $13.61 million per person and $27.22 million for married couples. This increase also applies to the lifetime gifting exemption and means that individuals can transfer up to $13.61 million tax-free during their lifetime or at death. Married couples can double the exemption amount through portability and gift-splitting. As a result of the increased exemption amount, individuals who have previously used all of their lifetime gifting exemption now have an additional $690,000 that they may use to make gifts in 2024. Additionally, the 2024 annual gift tax exclusion amount has increased from $17,000 to $18,000 per donee in 2024. The increased exclusion also means that a married couple may gift up to $36,000 in gifts to individuals this year. Although the exemption amounts have increased for 2024, it is important to note that the 2017 Tax Cuts and Jobs Act, the federal legislation that increased these estate and gifting exemptions, is set to end on December 31, 2025. Unless Congress acts in the interim, the federal exemption amounts will revert to $5 million per individual (adjusted for inflation) on January 1, 2026. As a result, it is best to consider gifting now while the exemption amounts are higher and perhaps earlier in the year before the 2024 election in the event of further congressional action. An experienced planning attorney can advise you on estate and gift tax avoidance strategies that may be of benefit to you and/or your family.
January 4, 2024
Immigration Law
E-2 Treaty Investor Visa
Originally posted 11.2.20, content updated 1.3.24 An E-2 Treaty Investor visa[1] is a non-immigrant visa that allows foreign nationals of a treaty country to enter the U.S. to work on developing and directing the operations of a business. This visa is for an individual who wishes to invest by starting up or buying a business, small or large, in the U.S. In order to qualify for this visa, applicants must meet a series of requirements[2]. Six Requirements to be Eligible for the E-2 Visa: The applicant must be a citizen of a treaty country. This visa is only available to individuals from the countries that the U.S. has a treaty agreement with. Visit the Department of State[3] website to view the complete list. You must have invested or be in the process of investing funds. There are three requirements for these investment criteria:You must show legitimate possession and control of funds. The funds to be invested must have been obtained lawfully. You must provide evidence on how you acquired the funds, either earned or as a gift. Some examples of evidence include tax returns, bank statements, documents to support the source of money (e.g., proof of sale if you sold property), investment accounts, etc. This may be challenging in some countries that do not have records available. All funds invested are subject to risk and loss. This provides proof that you are irrevocably committed. At-risk money includes credit card, debit, or other loans as long as the debts are not secured by business assets. You must be close to starting the business. Although no work can be done prior to visa approval, the business should be ready. This may include a signed lease, a business bank account, an established website, and purchasing everything needed to start the business. You must be in a position to develop and direct the business. The visa applicant must be the one to direct and run the business. This also means that the applicant must have the appropriate education or experience necessary for the position and business. Your investment must be substantial. The U.S. Citizenship and Immigration Services (USCIS) has not defined what they mean by “substantial,” and there is no set minimum or maximum amount. This depends on several variables, including the total capital of investment in relation to the total amount required to set up the business. Only working capital (not cash sitting idle in a bank account) will be considered by the USCIS as part of an investment. Your investment and business cannot be marginal; meaning, you cannot start a business just for you and your family. There must be a business plan in place to show growth over a 5-year period or that you plan to hire employees. You must intend to return to your home country after the visa expires. To document this, provide a signed affidavit stating such. You do not need to show ties to your home country. Applying for an E-2 Visa in the U.S. (I-129 Change of Status): If you are in the U.S. on another status, you can file a petition with USCIS to change your status to an E-2 Visa. You must file an I-129 form[4], complete the E-2 visa supplement, and provide all documentation required to support your E-2 visa request. If your petition is granted, you will be in E-2 status, which typically lasts two years. To change the status of any dependents that are also in the U.S., you must file an I-539 form[5]. Applying for an E-2 Visa at a Consulate (An E-2 Visa): If you wish to petition for an E-2 visa and are outside of the U.S., you will file an online application DS-160. You will also need to complete a DS-156E supplement. Instructions on how to do so are outlined on the website of the relevant consulate. Documentation to include is typically the same as those you would submit if filing in the U.S. However, you should still check with the consulate to see if other documents are required. Visas are typically granted between 2 and 5 years and allows for you to leave and enter the U.S. for travel. If you have dependents, they will file separate DS-160 applications. Things to consider: If you have been granted a change of status and then leave the U.S., you must reapply for the E-2 visa along will all supporting documentation (as if submitting a new application) at the consulate abroad. If the application is approved, you will receive an E-2 visa and will then be able to leave and reenter the U.S freely. Some consulates are easier than others to get am E-2 visa approval. Some are unwilling to approve an E-2 if the investment is less than $100,000. For others, the threshold is even greater. Common Questions: How long does the visa last? If you received E-2 status through a change of status, it will generally last two years. If processed at the consulate, the visa can last five years. How are family members treated? E-2 derivative visas are available for the spouse and children (under 21) of the E-2 Investor. Children may attend school in the U.S., but unlike the spouse, they are not authorized to work. Spouses are eligible to work by applying for an Employment Authorization Document (EAD). Does an E-2 Visa lead to a green card? An E-2 visa is a non-immigrant visa and will not lead to a green card. However, renewals of the E-2 are allowed indefinitely so long as the business is still in operation. Since the visa is temporary, applying for another green card option while on E-2 status may show immigrant intent. If you are considering this option, please contact our office. Do I need to hire U.S. employees? You do not have to hire employees immediately; however, your 5-year business plan should include information on when you plan to start the hiring process. There is no minimum number of U.S. employees needed. However, if no workers are hired, USCIS may consider that the business is established only to support the E-2 applicant and family and is as such “marginal” and not qualified. Therefore, it is important to at least hire some workers as reasonably necessary for the business to operate. Do I have to invest $1,000,000 and hire 10 employees? No, that requirement is for the EB-5 immigrant (green card) visa. There is no specific amount of investment or number of employees required for the E-2 visa, unlike the EB-5 visa classification.[6] Is there a minimum amount needed for the investment? There is no required amount necessary for the investment. There have been approvals of investments that were as low as $15,000 spent with $35,000 as working capital saved in the bank. Your investment amount depends more on your business; if you are a service business such as a consulting company, then the investment will be lower than a capital-intensive business such as a manufacturing plant. Can I borrow money to start the business? Unlike the EB-5 visa, you can borrow money as long as the business is not overly leveraged. Do you need a business plan to get the E-2 visa? Yes, a 5-year business plan is necessary for your visa petition to be considered. Can a real-estate investment such as purchasing a home qualify for an E-2 visa? No, the investment must be for either starting a new business or purchasing an existing business in order to qualify for the E-2 visa. The business must be active in the U.S. Passive investments such as in real-estate or stock are do not qualify. Not-for-profit organizations are also excluded since it is required that your business make money. How long does the process take to get an E-2 Visa? Since a number of USCIS forms and extensive supporting documents are needed, it can take time to prepare a successful filing. Once the filing has been submitted, the processing time can range from three weeks to three months (or longer). This time depends on where the consulate is that the applicant filed. What kind of business is eligible for an E-2 visa? Any lawful and legitimate business that meets the requirements stated above. This could be anything from a wine distributor, law firm, or coffee shop. Assistance on E-2 Process E-2 visas are complicated and require careful revision of documentation for a successful petition. If you are interested in starting or investing in a business in the U.S., please contact our office to learn more about the E-2 visa and how we can assist you.
January 3, 2024
Business
The Corporate Transparency Act and FinCEN Reporting
As you may already know, the Corporate Transparency Act (“CTA”) goes into effect on January 1, 2024. Under the CTA, many privately held companies will be required to file beneficial ownership information (“BOI”) reports online with the Financial Crimes Enforcement Network of the U.S. Treasury (FinCEN). For more information, see an overview linked below. We will continue to monitor updates to this process in the new year.
December 27, 2023
Estates and Trusts
Wealth with Wisdom: Leaving Educational Legacies in Your Estate Plan
As estate planning attorneys, we guide our clients in distributing their wealth to the next generation efficiently. However, Guy Fieri and Shaquille O’Neal recently made headlines by stating that their children need to earn two degrees to inherit from them. There is a trend articulated in the headlines, namely that tying inheritances to education goals, especially the size of inheritances from celebrities like Shaq, should contribute to the personal and intellectual growth of your children. Conditions requiring certain educational milestones or that an inheritance may only be used toward this goal in order to inherit from a loved one can be a powerful way to leave a lasting impact. The following are a few tips to consider when exploring the idea of leaving assets in your estate plan with educational conditions for your children, emphasizing the importance of combining financial legacy with a commitment to lifelong learning. The Purpose of Leaving Educational Legacies: Empowering Future Generations: When a condition of education is articulated in an estate plan, a message is received. That message, stating that education is a prerequisite to receiving an inheritance, not only encourages your child to pursue additional education but also sends a message that you believe life is more than just financial security, that education is a prerequisite to obtaining that financial security. It is the hope of many of my clients who choose to have educational prerequisites in their estate plan that they not only instill the importance of learning but perhaps demonstrate that education can empower them to also accumulate wealth for future generations. Fostering a Growth Mindset: A requirement that a child meets an educational condition can also encourage a “growth mindset.” Many clients see this condition as a conduit to inspire their children to embrace the challenge of higher learning. So many of our clients who worked hard to accumulate their own wealth have concerns that simply handing over an inheritance will mean that their own child will never face the challenges that the client has faced nor understand the value of “hard work” or the “struggle” to succeed and accumulate wealth. Placing a “two degrees” condition on an inheritance might be a way for your child to not only prove to themselves that they are up to the challenge, but the hope is that further education will also better equip the child to not only manage the inheritance more efficiently but also have a greater appreciation for that inheritance. How to Create Educational Conditions: How the Funds Can be Spent? Your Will or Trust is your “universe,” and therefore, it can define the educational conditions and expenditures as you see fit. For example, an inheritance can be left in trust, and distributions might only be made for tuition and educational expenses related to pursuing a college or an advanced degree. You may even specify what portion of the inheritance can be allocated to cover the costs associated with pursuing a degree and further define those expenses (i.e., books and transportation but not living expenses). The requirements can be even more granular to state that an inheritance can only be used to pay for graduate school in a particular field of study that a parent deems worthwhile. Educational Attainment Milestones: Like Shaq and Guy, many clients determine that their child’s entire inheritance is conditional upon earning a degree. As Shaq said so eloquently, “No cheese without two degrees.” Guy has made public statements following Shaq’s lead. Unless the O’Neal and Fieri children earn two college degrees each, they will not inherit at all from their fathers. Milestones like these are easy to add to an estate plan and are easily enforceable. As already mentioned, the spirit behind the milestones is to foster that growth mindset and empower their family’s future generation to ensure a more educated family tree. The hope is that the more educated the child, the more responsible they will be in managing those assets and preserving the wealth for generations to come. Important Details to Consider: Flexibility: Life is unpredictable, so it’s important that your estate planning documents are drafted in such a way that it is possible to adapt to life’s changing circumstances, particularly for your children. It is essential to design your educational conditions with flexibility to accommodate unforeseen challenges or opportunities for your children. Perhaps this means that you should extend the scope beyond traditional education to include opportunities for professional development, ensuring your children are equipped for success in their chosen fields. What happens if your child, while responsible and hardworking, is not college-bound? Conditions can also be tied to earning a vocational degree or being gainfully employed. Additionally, conditions can be tailored to encourage entrepreneurial ventures to foster their creativity or business acumen. Communication: Communication is key! If you want to empower your children and foster a growth mindset, you need to share this with your children. Therefore, it is so important when these types of estate planning conditions are imposed that they are communicated transparently to your children so that they have the opportunity to meet and exceed the conditions. It would be best to discuss your intentions with your children so they fully understand the conditions, how the funds can and cannot be used, and your rationale for imposing these conditions. Trusteeship. It cannot be understated how important it is to appoint a Trustee who will not only enforce the terms of your educational conditions but also understand and respect them. A trustee will enforce the terms of the conditions to ensure that all of the terms are met by your children. Most importantly, the trustee will be your voice long after you’re gone and can help communicate those educational conditions to your children so that they can successfully manage their inheritance and their future security. In conclusion, leaving assets in your estate plan with educational conditions for your children is a profound way to extend your influence beyond your lifetime. By intertwining financial legacies with a commitment to education, you not only provide for their immediate needs but also empower them with the tools to thrive intellectually and professionally. As you plan for the future, consider the legacy of wisdom and knowledge you can pass on to future generations, leaving a lasting impact on their lives.
December 22, 2023
Family Law
Cohabitation Agreements: Protecting Assets and Income of Unmarried Couples Residing Together in DC
Unmarried couples residing together in the District of Columbia would be wise to execute a cohabitation agreement defining their rights and responsibilities to avoid substantial financial risk. The District of Columbia is one of a small number of jurisdictions in the United States that recognize “common-law marriage.” Contrary to popular belief, there is no minimum amount of time that couples must live together to form a common-law marriage. Instead, a couple forms a common-law marriage in the District of Columbia when there is cohabitation following an express mutual agreement, which must be in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage. A common-law marriage can be formed without any marriage ceremony or marriage license. A well-drafted cohabitation agreement signed and notarized by both parties will unequivocally explain that the parties do not intend to form a common-law marriage. The agreement should also clarify that each party will retain their own assets and income and assume responsibility for their own debt if and when the relationship ends. In the absence of a cohabitation agreement, one of the parties to the relationship might file a complaint for divorce in the Superior Court for the District of Columbia, asserting that the parties formed a common-law marriage. If the Court concludes that the parties formed a common-law marriage, the Court can order one party to pay spousal support to the other, depending upon the facts of the case. The Court can also equitably distribute property and debt acquired by the parties from the date of marriage to the date of divorce, except property acquired by gift or inheritance, and order one party to reimburse the other party for attorneys’ fees incurred in the divorce proceeding. Even if the parties never formed a common-law marriage, the party who denies the existence of a common-law marriage will have to engage in lengthy and costly litigation to prove that the parties were never common-law married to avoid having his or her assets and income divided by the Court. The attorneys’ fees involved in defending against a false common-law marriage claim can be substantial. To avoid costly and time-consuming litigation and protect your income and assets, anyone planning to reside with another person in a romantic relationship or already residing with another person in a romantic relationship should promptly seek the assistance of an attorney in preparing a cohabitation agreement.
December 21, 2023
Immigration Law
B-1 Visa for Domestic Workers
The B-1 visa is an ideal solution for personal employees or domestic workers to accompany or join a U.S. citizen employer temporarily in the United States. This visa category caters to a range of domestic roles, including cooks, chauffeurs, valets, footmen, nannies, housemaids, gardeners, and paid companions. Requirements for the B-1 Visa The U.S. citizen employer must either have a permanent home or should be routinely stationed in a foreign country. The U.S. citizen employer is temporarily traveling to the U.S. The employer’s return to the U.S. should not exceed six years. The employer can demonstrate the regular employment of the domestic worker in the same capacity as the intended employment in the U.S. or a minimum 6-month employment relationship prior to the employee’s entry into the U.S. The employee must provide evidence of employment experience as a personal employee or domestic worker (i.e., attested statements from previous employers). A signed and dated employment contract for the intended employment in the U.S. must be provided. Requirements of the Employment Contract The employment contract must be signed and dated. The employee’s daily wage should be the greater of the minimum or prevailing wage under U.S. federal, state, or local law. The employer must provide living quarters and airfare for a round trip to the U.S. to the employee. A certification to affirm that the employee may only be required to stay on the premises after working hours if appropriately compensated. The employee must only be employed by the employer in the U.S. The contract should mirror the standard benefits provided to U.S. domestic workers in a similar area of employment. Application Process The employee should work with an immigration attorney to prepare a detailed B-1 application addressing the employee’s qualifications for B-1 status. Once the application is complete, the employee should schedule a visa appointment at a U.S. Embassy or Consulate abroad to present their B-1 visa application and discuss their qualifications. Once the application is approved, the employee’s passport will be returned with the B-1 visa within 3 to 5 business days. The B-1 visa may be granted for a period ranging from 6 months to 10 years, at the discretion of the interviewing officer. Post-entry in the U.S., the employee must then apply for an Employment Authorization Card (Form I-765, Application for Employment Authorization). This process may take from 3 to 9 months. The Employment Authorization Card will be limited to the expiration of the employee’s I-94 admission period. Work Authorization Once the employee receives the Employment Authorization Card, the employee may apply for a U.S. Social Security number and receive a salary from a U.S. source. Holders of B-1 visas are subject to taxation obligations imposed on U.S. wage earners and may avail of the same protections as U.S. workers. B-1 Employment Status Post Entry in U.S. The initial authorized entry period typically spans from 6 to 12 months. The employee may be eligible for an extension status (Form I-539, Application for Extension of Status) for six months, which may be renewed. It is imperative that the employee keep track of the expiration dates of their visa, I-94 admission period and Employment Authorization Card. Unlawful presence in the U.S. can have serious consequences on their ability to return to the U.S. in the future.
December 20, 2023
Family Law
In Landmark Ruling Pope Francis Approves Priestly Blessings for Same-sex Couples (Under Certain Circumstances)
On December 18, Pope Francis approved a landmark ruling allowing Roman Catholic priests to administer blessings to same-sex couples as long as they are not part of regular Church rituals or liturgies nor given in contexts related to civil unions or weddings. The declaration from the Vatican’s doctrinal office, approved by Pope Francis, said such blessings would not legitimize irregular situations but be a sign that God welcomes all and does not discriminate. Francis’ comments are the first uttered by a pope about such laws. But they are also consistent with his overall approach to LGBTQ people and belief that the Catholic Church should welcome everyone. Earlier this year, in January 2023, Pope Francis criticized laws that criminalized homosexuality as “unjust,” saying “being homosexual isn’t a crime,” and “God loves all his children just as they are” and called on Catholic bishops to welcome LGBTQ people into the Church.1 The formal declaration entitled “Fiducia Supplicans” (“Supplicating Trust”) was subtitled, “On the pastoral meaning of blessings” (“Fiducia Supplicans”), is a resistance to a rigid church, one that excludes people from blessings because they fail doctrinal or moral litmus tests, but also one that turns blessings — including to same-sex couples — into the supports of a new Canon legal structure. The Fiducia Supplicans evolved from a letter Francis sent to two conservative cardinals in October. It reaffirms that marriage is an “exclusive, stable and indissoluble union between a man and a woman, naturally open to conceiving children.” The declaration insists that Mass is not the proper setting for the less formal forms of blessing that could include the blessing of a gay couple, and it repeats that “it is not appropriate for a diocese, a bishops’ conference” or other church structure to issue a formal blessing prayer or ritual for unwed couples. Further, the blessing should not be given “in concurrence” with a civil marriage ceremony to avoid appearing as a sort of church blessing of the union. And it stresses that blessings in question must be non-liturgical in nature, must avoid using set rituals, and avoid the clothing and gestures that are traditional in a wedding. But it says requests for such blessings for same-sex couples should not be denied outright. Priests are to decide on a case-by-case basis and “should not prevent or prohibit the Church’s closeness to people in every situation in which they might seek God’s help through a simple blessing.” “Ultimately, a blessing offers people a means to increase their trust in God,” the document said. “The request for a blessing, thus, expresses and nurtures openness to the transcendence, mercy, and closeness to God in a thousand concrete circumstances of life, which is no small thing in the world in which we live.” Conclusion There has been a small burst of liberal activity in the Catholic Church on several fronts in 2023 from the Vatican’s Office of the Doctrine of the Faith, not just on the LGBTQ issue. On Oct. 31, Francis approved another document, making clear that transgender people can be baptized, serve as godparents, and be witnesses at church weddings, furthering his vision of a more inclusive church. And, for the first time, women and laypeople can vote on specific proposals alongside bishops, a radical change that is evidence of Francis’ belief that the Church is more about its flock than its shepherds. Pope Francis has worked steadily to open the Church to the LGBTQ+ community. For some, his efforts are too much. For others, they are not enough. 1 “Being homosexual isn’t a crime,” Francis said during an exclusive interview on January 24, 2023, with Tuesday with The Associated Press.
December 19, 2023
Estates and Trusts
When to Review your Estate Plan: The 5 Ds
Originally posted 12/17/2020, no content changes. You finally sat down with an estate planning attorney after years of procrastination and created an estate plan that reflects your wishes: can you file it away with the rest of your important documents and never think about it again? Not exactly. As a rule of thumb, you should review your estate plan every three years or when there are significant tax changes at the state or federal level - much like the changes (likely) on the horizon this January. However, if your life has been touched by the 5 D's - Death, Disability, Divorce, Distance, and/or Descendants you should speak with your estate planner right away. Death When a family member or close friend dies, there are a few reasons to trigger a review of your own estate plan. First, the deceased loved one may have left you a significant inheritance that changes the schematic of your own estate plan from a tax perspective. Receiving a large inheritance will necessitate a review of your plan to ensure that you have considered the tax ramifications of the same. Second, the deceased loved one may have been named as a fiduciary in your estate plan. If you named the deceased loved one as your agent under a Power of Attorney, or Health Care Proxy, it is important to review those documents to make sure that you have an alternate agent and if you do not, you should update those documents right away. In your own Will, if the deceased loved one is a beneficiary of your estate, are you satisfied with who will inherit from you instead of the deceased loved one? It is often necessary to revise the plan of distribution considering a loved one's death. Disability Receiving a diagnosis of an illness or life altering condition for you or a loved one can be overwhelming. In addition to grappling with the realities of a diagnosis, it is imperative to review your estate plan from the lens of that disability. For example, if your spouse is diagnosed with a memory impairment condition such as dementia or Parkinson’s Disease, your estate plan should be reviewed by an elder law attorney to make sure that your assets are held in a trust that will allow for Medicaid eligibility in the future to pay for care one day. If a beneficiary in your Will is now disabled and relies on public benefits to pay for his care, you may wish to revise your own Will to direct that your disabled loved one's bequest is left in trust for him, so that his future inheritance will not disqualify him from the benefits upon which he relies for his disability. If you received a diagnosis, you should make sure that those you nominated as your agents under your Power of Attorney and Health Care directives are the people you still entrust with these particularly important and vital roles. Divorce If your marital status changes - a divorce, or a new marriage, your estate plan will certainly change. In the case of a divorce, each of your estate planning documents should be reviewed. If your estate plan was created during your marriage, it is likely that you chose your former spouse to act as your agent under a Power of Attorney and Health Care Proxy and as Executor or Trustee under your Will or Trust. In many states, a divorce will automatically end such an appointment without changing your documents - but not in every state. In addition to reviewing your documents, you should also consider the assets that have beneficiaries to ensure that your former spouse is not named as a beneficiary on your retirement savings plan, life insurance, and other financial accounts. In the case of a new marriage, it is important you have a discussion with your new spouse about your assets entering into the marriage and your wishes as related to the distribution of those assets in the event of your death. In many cases, spouses enter into pre- or post-nuptial agreements to address estate inheritance issues and estate planning documents should reflect those agreements. Distance If you relocate from the state where your estate plan was created, it is important to have your estate planning documents reviewed by an attorney licensed in your new home state. Laws vary greatly from state to state with respect to rules of inheritance, asset protection, and estate taxes. While states do honor other states' documents under the Full Faith and Credit Clause of the US Constitution, each state has its own forms and provisions that may make a revision of your estate plan in the new state more practical and cost-effective in the future. In addition to your own move, if a fiduciary that you have named in your Health Care Proxy or Power of Attorney moves across the country it should be considered whether it is practical for that person, who now lives in a different time-zone, to continue in that role. It becomes even more complicated in the case of a fiduciary moving out of the United States. In New York for example, if you name a person as your executor who resides in a foreign country, it is unlikely the Court will honor your choice and instead appoint someone else as an executor. Descendants It is imperative to create an estate plan when you have children. In 2020, I generally do not have to remind clients that bad things happen. In the unfortunate event that you and your spouse or partner die with minor children, it is imperative that you make an election with respect to your children's care. A Will should provide a guardianship provision for your minor children in the event of your death. Leaving this information out of your Will or relying on a Will that was created before you became a parent could be catastrophic for your minor children. If you are a single parent, the importance of a Will with a guardianship clause is exponential. If you die without a guardianship provision, anyone in your child's life could petition the court for her guardianship. The court will decide guardianship based on your children's "best interests" - which might not match what you would believe to be in your children's best interests. In the case of a grandparent who excitedly amended her Will to include her first grandchild as a beneficiary, it is important that her estate plan is updated for each new grandchild. With all of this in mind, it is important to think of your estate plan as fluid. Whether it is a new presidential administration or one of the 5 D’s, it is so important to stay in touch with your estate planning attorney and review your estate plan to make sure it is reflective of your current life circumstances.
December 18, 2023
Construction
Protecting Contractors’ Rights Filing and Perfecting Mechanic’s Liens in Virginia
In the complex realm of construction and property development, contractors and suppliers often find themselves grappling with payment disputes. A Mechanic’s lien can provide a powerful tool to secure payment for services rendered or materials supplied. This article briefly introduces the procedures to file and perfect a mechanic’s lien under Virginia law.[1] What is a Mechanic’s Lien? A mechanic’s lien is a legal claim against a property that ensures contractors, subcontractors, and suppliers receive payment for their work or materials. In Virginia, this remedy is governed by Virginia Code § 43-3, et seq. Timely Filing is Paramount: Under Virginia law, it is imperative to file the mechanic’s lien within 90 days from the last day of work. § 43-4. Failure to perfect a Mechanic’s lien by that deadline may result in the loss of lien rights. Prepare the Lien Claim: Crafting and perfecting the Mechanic’s lien requires: Identification of the Parties: Clearly state the names and addresses of the property owner, the claimant (contractor or supplier), and the general contractor. Property Description: Provide an accurate description of the property subject to the lien. This should include the legal description and the street address of the property where the contractor or supplier performed work or provided materials. Detailed Statement of the Debt: Clearly outline the services rendered or materials supplied, along with the corresponding costs. Be specific and transparent in detailing the debt owed. Notarization & Copy Mailed to Property Owner: In Virginia, it is essential to notarize the lien and mail a copy of the lien to the property owner’s last known address. Use the following form to identify and state a Mechanic’s lien: Virginia Mechanic’s Lien form. Filing the Mechanic’s Lien: Once the lien claim is prepared, it must be filed and recorded with the Circuit Court in the county or city where the property is located. Along with the claim, a claimant should expect to pay a filing or recording fee to the circuit court clerk’s office. Enforcing a Mechanic’s Lien: If a contractor or supplier still has not received payment despite filing and perfecting a Mechanic’s lien, a claimant may file a lawsuit to enforce the lien. However, a claimant must file an enforcement action s within 6 months of lien’s filing date (or 60 days if the property owner has recorded a notice of completion). Failure to file a lawsuit to enforce the lien within the above time limits could render the lien unenforceable. Conclusion Navigating the intricacies of mechanic’s liens in Virginia demands precision and adherence to statutory timelines. If you or your organization have an outstanding construction-related claim, consulting with a trusted attorney in your area might prove to be the difference between securing payment or not. While outcomes cannot be guaranteed and past performance cannot assure future success, Offit Kurman litigator Anders Sleight | Offit Kurman is available to evaluate your specific situation. [1] These materials have been prepared for informational purposes only and are not legal advice. Reviewing this post or contacting Offit Kurman in response does not create an attorney-client relationship. Case results depend upon a variety of factors unique to each case, including the specific factual and legal circumstances of each case. This post may constitute ADVERTISING MATERIAL.
December 14, 2023
Family Law
It’s Tax Time
Although most folks think that tax time is April 15th or thereabouts, there are a number of things that you should consider doing before the end of the year that may affect your tax obligation for 2023. Certainly, check with your accountant or tax advisor, but generally, the end of December and the beginning of January are prime times to get organized. If you don’t already have a CPA or tax professional, this is a good time to find one and establish a relationship. CPAs often stop taking on new clients after the beginning of the year, and some tax planning in December may be very beneficial. As those forms come in, file them away in a safe place so that you can produce them easily when you begin the process of sharing them with your tax advisor. If you have had big changes in the past year, like a new baby or a second job, you may want to adjust your withholding early in the year. Of course, December is a great time to make donations to charity and maximize your IRA. If you are going to owe taxes when you file your return, you may want to pay as much as possible towards that obligation before the actual filing deadline.
December 13, 2023
Litigation
Possession – Is It Really Nine-Tenths of the Law?
What does the expression “possession is nine-tenths of the law” mean? “Possession is nine-tenths of the law” is simply a recognition of presumed ownership. As highlighted recently in an Alexandria federal case over the rightful heirs to four original Norman Rockwell paintings (see Elam v. Early, Case No. 1:23-cv-229), the common law provides that the one possessing property is presumed to own it. On the flip side, one claiming ownership in property possessed by another has one’s work cut out. Why does the common law presume that one in possession is the rightful owner of something? Why does the common law presume that one in possession is the rightful owner of something? Stated alternatively, “Why do we infer ownership from possession?” Because the alternative is too impractical! Imagine a world in which you had to carry or produce receipts or other proof of ownership for anything and everything you own, everywhere, all the time! Absent such proof, you would instead be presumed a thief subject to arrest. One will note that we have developed certain exceptions to the general rule – vehicle registries and cattle branding come immediately to mind. While not expected to produce a car title if stopped by police, drivers are expected to produce proof of registration in part to evidence that the vehicle they are driving isn’t stolen. Similarly, ranchers have a longstanding tradition of uniquely branding their livestock as a means of readily identifying ownership of the animal. The exceptions are generally accepted as appropriate due to the significant value of the items involved. Similar “branding” exists with other items of significant value to which unique identifiers or serial numbers are inscribed or otherwise affixed. While registries and unique identifiers may prove helpful in establishing ownership, however, it must be noted that they, too, merely provide evidence on which one might rely in proving one’s status as the rightful owner. How does one legally challenge the “possession is nine-tenths of the law” presumption? The ability of one not possessing property to establish proof of ownership renders the original presumption rebuttable. One claiming ownership might claim, for instance, that the possessor stole or, in non-criminal terms, “converted” the property. Alternatively, if one had originally come into possession of property legally but subsequently refused to return it, an aggrieved owner of the property might argue that a breach of bailment had occurred. While proof of theft would serve to rebut ownership, it would not necessarily be conclusive in a particular situation where what is ultimately called for is proof of superior title. One might imagine a situation, for instance, where the true owner is shown to have improperly stolen an item back from the original thief. Proof of superior title would prevail as to ownership even if the owner might remain answerable for any legal consequences of the thievery. Establishing proof of a gift of an item is another foreseeable step in a case in which burdens of proof shift back and forth. As a presumption can be rebutted, so too can additional evidence of many kinds serve to support an ownership claim grounded in possession. The challengers in the Norman Rockwell case failed utterly to produce any evidence of superior title such that the party possessing the paintings need not establish, even in the absence of proof that the paintings had been gifted by the decedent prior to death, anything more than unquestioned possession. Proof of a gift is not always impossible, however. Testimony of anyone aware of the gift is generally relevant and admissible, as would be a reference in a gift card (in the event it still existed) to the gift itself. I am reminded of a case of my own early in my career in which my client, for reasons I no longer recall, actually had a Polaroid picture of herself with a gift cuckoo clock and writing from the decedent on the bottom of the frame referencing how pleased he was to have given it to her. Then again, one of my all-time favorite lawyer movies, Legal Eagles (a 1986 romcom starring Robert Redford, Debra Winger, and Darryl Hannah – check out its IMDB), draws a much closer parallel to the Eastern District’s recent summary disposition of the Norman Rockwells. While I’ had not intended this as a movie review or date night recommendation, I can’t help but encourage my fellow law-minded movie lovers to check out this legal classic in which Redford and Winger struggle with proving their non-possessory client’s (Hannah’s) ownership of a valuable painting which ultimately comes down to establishing the existence of a gift inscription on the back of the painting (the fiery pursuit and result of which I wouldn’t dream of spoiling for you!). [You’re welcome in advance for this “oldie but a goodie,” 2-in-1 romcom – “lawyer movie” recommendation, notwithstanding the purposefully only-a-lawyer-could-love, yawnfest of a description! I’ll look forward to reading your critical movie reviews.] Does “nine-tenths of the law” equate to only a 10% chance of successfully challenging one claiming ownership merely by possession? Possession may be nine-tenths of the law, but legally supporting or refuting ownership on behalf of either the one in possession or in favor of the other one-tenth is when you need 100% confidence in the legal advocate you choose to help make your case. Don’t make the mistake of equating “nine-tenths of the law” with a 90/10 probability outcome regardless of who represents you. Good legal representation can increase your odds of success, and indifference in the selection process can lead to unfavorable results. Don’t leave your outcome to chance. Relevant experience matters.
December 13, 2023
Family Law
Dirty Tricks Employed by Lawyers and Disregarded by Judges
People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide. (Will Rogers) Divorce proceedings can often be emotionally charged and contentious, requiring individuals to seek legal representation to navigate through the complexities of the process. While most divorce lawyers uphold the highest standards of professionalism and ethics, there are, unfortunately, a few who resort to unscrupulous tactics to gain an advantage for their clients. This article aims to shed light on some commonly known trickery employed in divorce cases, i.e., bad behavior a litigant can expect to see coming from the other side, and with which they will need to cope, inasmuch as judges rarely punish any of this behavior. In other words, as one climbs onto the divorce carousel, make sure to fasten the belt around your waist because it is going to be a bumpy ride [1]. Concealing Assets One of the most prevalent unethical practices involves lawyers helping their clients hide or undervalue assets during the discovery portion of the case, which will ultimately lead directly into the property division segment of the case. This may include transferring assets to third parties, creating fake debts, or underreporting income. Typically, this will involve a lawyer’s failure to produce the financial documents sought by the other side in full or in part. Such actions hinder a fair distribution of marital property and can have severe consequences for the other party involved. Stirring Up Conflict Some lawyers intentionally fuel animosity between divorcing spouses instead of promoting amicable resolutions. By exacerbating conflicts or encouraging their clients to adopt hostile approaches, these lawyers create a more challenging environment for negotiation, causing emotional distress and escalating legal costs. Misrepresentation and False Accusations In pursuit of securing advantageous outcomes, some lawyers resort to presenting false information or distorting facts about the opposing party. This may involve fabricating evidence, making baseless accusations of wrongdoing, or tarnishing the reputation of the other spouse. Such behavior not only undermines the integrity of the legal process but also damages the overall trust between parties. Exploiting Power Imbalances Lawyers are expected to function as advocates for their clients, but when they exploit power imbalances between divorcing spouses, it can lead to unfair negotiations. Manipulating vulnerable clients or bullying the opposing party can distort the outcome and perpetuate injustices within the divorce process. Unnecessary Delays and Legal Maneuvering Some attorneys deliberately prolong divorce proceedings through excessive paperwork, unnecessary motions, or aggressive litigation strategies. This tactic aims to exhaust the opposing party’s financial resources and stamina, forcing them into a disadvantageous settlement or conceding to unfavorable terms out of desperation. Some refer to this as adopting a “scorched earth” policy, i.e., victory or supremacy at all costs [2]. Conclusion While the majority of divorce lawyers adhere to ethical standards, it is crucial to acknowledge the existence of unethical practices that can harm both parties involved in a divorce case. Recognizing these “dirty tricks” allows individuals to be vigilant and seek legal representation from reputable attorneys who prioritize fairness, transparency, and ethical conduct throughout the divorce process. [1] Paraphrase from “All About Eve” (1950). [2] https://www.merriam-webster.com/dictionary/scorched-earth
December 12, 2023
Family Law
Imputation of Income: Rebalancing the Support Scales
Money is like love; it kills slowly and painfully the one who withholds it, and enlivens the other who turns it on his fellow man. (Kahlil Gibran) When one or both spouses in a divorce fail to properly account for their income and expenses or pursue unemployment or underemployment in an attempt to inflate or deflate their or the other’s support obligations, the concept of imputed income can serve to be a great equalizer, rebalancing the marital financial scales. Imputed income can have significant financial consequences for both parties involved. The party against whom imputation is sought may be required to pay higher child support or spousal maintenance, while the party seeking imputation may potentially receive increased financial support. Through the imputation of income, courts can ensure that the proper amount of support is awarded, even in instances where the financial disclosure provided is deemed unreliable or suspect. Imputed income refers to the potential income that a court assigns to a party in a divorce case, even if they are not currently earning that amount or are unemployed. In New York, imputed income can have significant implications for determining child support and spousal maintenance. Under New York law, imputed income is based on a number of factors, including a party’s health, age, and the availability of job opportunities. The Court will strive to be fair and equitable in its determination, taking into account the individual circumstances of each case. This means that the Court will consider such as the party’s education, job experience, skills, and prevailing wage levels in their field when determining an appropriate income to impute. The goal is to ensure that individuals do not intentionally reduce their income to avoid their financial obligations in a divorce. It is important to note that imputed income is not automatic and must be proven by the party seeking it. The Court will carefully consider the evidence presented, including testimony from expert witnesses, to determine whether imputation is appropriate in each case. Examples Of Situations Where Imputed Income May Be Applied Where there is voluntary unemployment or underemployment: If one party voluntarily quits their job or takes a lower-paying job without a valid reason, the court may impute income based on their previous earnings or their earning capacity. When education or training opportunities are rejected: If one party refuses education or training opportunities that could improve their earning potential, the Court may impute income based on what they could have earned with that additional education or training. Where there is an intentional reduction of income: If one party intentionally reduces their income by working fewer hours, taking a lower-paying job, or refusing promotions, the Court may impute income based on their previous earning levels or what they could earn with reasonable effort. When there is unreported or hidden income: If one party attempts to hide or underreport their income to avoid financial obligations, the Court may impute income based on evidence of their true earning capacity. Where questionable Financial Records are produced. If a spouse’s financial records lack credibility or are incomplete. When a party or the parties are living above one’s/their means. If expenses exceed presented income. Where there is a reliance on the generosity of strangers. If a spouse receives gifts from or has ordinary expenses paid by third parties or When there are complicated business structures present. If a spouse appears to have used their business(es) to disguise income. Real-Life Examples Where Income Was Imputed to a Party K. v. K.: The expenses listed on each party’s Statement of Net Worth ($96,624 annually for the wife and $102,636 annually for the husband) far exceeded their respective earnings, and there was no indication that their expenses were not timely being paid. Indeed, both parties acknowledged receiving substantial financial support from their family members. Thus, the Court concluded that that the parties’ financial resources were greater than their self-reported incomes. H. v. B.: $45,000 of income was imputed to the husband based on a brokerage agreement he signed identifying his income as $50,000 per year, documentation showing he held an ownership interest in a trucking business, and the testimony of his ex-wife who worked in the trucking business and had personal knowledge of the company’s payroll. N. v. K.: $46,609 of income was imputed to the husband “based upon his prior income, his training, his choice to pursue only part-time employment, and his current living arrangement, in which he did not pay rent.” S. v. S.: Income of $78,000 per year was imputed to the wife based on evidence at trial that showed she could earn that sum due to her degree and her nurse practitioner license, which was further supported by facts adduced at trial and expert testimony. DV. v. D.: $100,000 of income was imputed to the husband where the expenses he listed in his Statement of Net Worth far exceeded his income as reported on his tax returns, and he lived 3 in a two-bedroom apartment in a luxury apartment building. In addition, after his job for 12 years at a “major bank” was eliminated, he did not demonstrate that he “diligently sought new employment commensurate with his qualifications and experience.” G. v. G.: $151,000 of income was imputed to a wife based on rental income she received from separate property investments and her access to over $500,000 in trust assets that were her separate property. Conclusion In conclusion, imputed income in New York divorce cases is a legal concept that aims to ensure fairness and prevent individuals from intentionally reducing their income to avoid financial obligations. It is important to consult with a qualified family law attorney who can provide personalized advice based on your individual circumstances if you have questions or concerns about imputed income in your divorce case.
December 7, 2023
Page 20 of 35
About the Blog
Receive timely content, newsletters and event information delivered to your inbox.
