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But the child's not mine! What do I do?
We answered a question about a shocking "child is not mine" revelation in a recent forum about custody and family law. It is repeated here: I have been married for 5 years to my wife. During that time (on 06 Jan 2012) we had a daughter. I just took a dna test and found out she is not mine. What can I do? How can I end this marriage? The case of the "child that's mine." Generally, the Courts frown on breaking up a family, even if it later turns out that the child was not the biological offspring of one of the putative parents (that means one of the parents that the law assumes should be the parent, i.e. mom and dad). The key, in cases of DNA showing that one parent is not the actual parent, is how long this has been known, and how long the child has been treated as belonging to the parent. In your case, the child has been alive for just ...
Stopped by CBP - Deferred Inspection
Deferred Inspection with CBPIn this instance, there are a couple of considerations. You should expect to be placed in removal proceedings. It does not sound like you will be charged with an aggravated felony. First, this does not appear to be a crime of violence, and secondly, as you described it, it sounds like you received straight probation. As such, under sec. 1101(a)(48)(b), this probably wouldn't be an aggravated felony anyway (called "agg-fel" in our parlance). Now, if this is NOT an aggravated felony, you might qualify for various types of relief when put into removal proceedings. Most importantly, however, you are not disqualified from bond. That's really important -- as nothing is a morale crusher like sitting in the pokie for six months waiting for your immigration court individual calendar hearing (fancy term for trial on the merits). Various places in the country have differing bond amounts (i.e. each immigration court is different). However, for a ty...
What should I do before my Sentencing Hearing?
So I am going to be sentenced...what should I do? Often, after a plea, defense (and prosecution) will "reserve allocution" at sentencing. That means that each reserves the right to argue about what sentence you get. The basis for sentencing is the "guideline" -- and there are two types, state sentencing guidelines and federal sentencing guidelines. Generally, you can find these online. What can you do? Learn your guidelines! Learn the range of "punishment" that can be given for the crime, determine if any is mandatory, and if any prior convictions "enhance" the penalty. Sentencing is based on the number of "points" you have on your record (a lot like driving points from DMV) and the enhancements for the serious nature of the crime (for example, a crime involving firearms). Be sure to read your plea agreement, if you have one. Often enhancement papers are waived, and allocution is capped at a certain part of the sentencing range (say, the lower quartile) -...
Ukraine and Asylum - what if you are already here?
Ah -- the Ukrainian pains of asylum. A couple of pointers about applying for asylum when you are already in the US. First, affirmative asylum (that's the kind you apply for when you aren't in the hot seat, i.e. in front of the immigration court!) must be done in the first year you are in the country. Sadly, the government does not want nor approve opportunistic "squatting" in the US -- hanging out here in the States until something bad happens at home, and then...poof! Asylum time! So, as for affirmative asylum, you have a great shot if you're in the first year of your presence a la United States. Otherwise...nada. See 8 U.S. Code § 1158 for information on asylum and the process of applying. What may come open, and is designed for ye olde squatters as mentioned before, is relief called "TPS"-- temporary protected status. From time to time, the President deigns to designate certain places of the world as "particularly nasty and worthy of politi...
I-864 and Form Questions
What is annual income?While chatting on Avvo, a question was asked about how to complete the I-864 income questions (Part 6). Our ResponseAh -- the question of the I-864. Look on the bright side -- you are not trying to get multiple sponsors! Or self sponsoring...or any other more complicated fumbles that cause heartache on this form. I believe a colleague on this board answered correctly -- just provide the annual income (expected) for the year. The real key to the I-864 are tax returns. As for Part 6, Question 6c, the instruction state: 6. Annual Household Income. This section is used to determine the sponsor's household income. Take your annual individual income from Item Number 5 and enter it on Item Number 6.c. If this amount is greater than 125 percent (or 100 percent if you are on active duty in the U.S. military and sponsoring your spouse or child) of the Federal Poverty Guidelines for your household size from Part...
Padilla and Post Conviction Immigration Relief in VA -- WE WANT YOUR CASE!
Padilla and Virginia -- we're looking for a good case! Do you have one? In immigration related matters, the controlling case is Padilla v. Kentucky. This case indicated that if the judge did not review the immigration consequences of a plea, and further that the defense attorney did not advise the defendant of the impact a plea may have on him immigration status, that the case should be re-opened. This process is collectively known as "post-conviction relief." However, there are a couple of caveats to this. First, under another case decided shortly after Padilla (Chaidez v. US), the Supreme Court ruled that no criminal conviction BEFORE the holding in Padilla could be challenged for want of informing the defendant of his/he immigration consequences. You did not indicate when your son was convicted. Finally, the Supreme Court of Virginia basically indicated it would not follow Padilla. In a decision entitled Commo...
Sex Crimes -- mixing minors and mayhem
Hanover Law answers questions on a variety of topics, and one recent inquiry stood out in our criminal discussions. In VA, what is statutory rape and what are other possible charges for sex with minors? Seems like a bizarre and slightly embarrassing question. However, if you have a teenager or young adult who is experimenting with sex, it is good to know what the risks might be. Question:I am 20 years old and have a child with an 18 year old. When we had sex, I was 19 and he was 17.His parents are pissed, but knew of our relationship. It actually started when he was 16 and a half and I was a little over 18. The night we conceived he took me to a party where we both got drunk. He drove me home, and the rest is history. What will happen to me? Statutory Rape? Not a chance. The father of your child must pay child support, so you can certainly...
Criminal Indictment -- what is it?
So What's an Indictment anyway?The term "indictment" (pronounced in-dite-ment) is used to indicate the process where a grand jury finds sufficient evidence to charge a person for a specified felony offense. The prosecutor must bring evidence and witnesses to the grand jury in order to convince the jurors that the charges are "real" and substantiated. The term for this is "taking the case to the grand jury", and under the constitution, this must be done in a speedy manor (Sixth Amendment to the Constitution). States have considerable leeway to decide what constitutes "speedy", and if the accused is not detained, the definition becomes even more broad. But generally, detained = ~100 days; non-detained = ~9 months. If this period elapses with no action on the case, a motion can be made to acquit the accused for want of prosecution. For example, possession of 5 grams of marijuana is a misdemeanor offense, not a felony. Therefore, there would be no grand jury....
IRS Tax Deficiency
So You Have A Tax Bill....Generally, you are not going to jail for not paying a minor tax bill. Less than $50,000 is considered quite minor on the books of the IRS. This, however, should not confused with the IRS not making your life a living hell. Oh, no! They will. There are three stages to IRS wrangling. The first stage is a notice that is mailed to you. This notice, commonly called a deficiency notice, will indicate you have an outstanding liability, why you have the liability, and what steps you can take to immediately fix the liability and avoid further IRS intervention. Often, the IRS is incorrect in its calculations, or you have misfiled something. When that happens, you can submit a modification to earlier filings or challenge their finding. If you do nothing, the second stage occurs. You are notified of the IRS's intent to levy your wages, and b...
So you want a divorce...now what?
So my friend Amy came to to talk to me about family law problems. Her husband had walked out rather unexpectedly. They owned a home in Virginia, and her children were mostly grown and gone. She was really annoyed that Mike was gone for the last few weeks, and asked our Firm what she should do. I answered her question thus: Sounds like it might be time to file for divorce. If he has been absent for more than 30 days, you have a strong case for desertion. That gives rise for an at-fault divorce. As you have no young children at home (all 18 or older), you should be able to get a standard, no-fault divorce in 6 months (must be separate and apart). However, if you prove cause, you may be able to get it sooner. The law dealing with these matters, and others discussed in this post, can be found at VA Code §20-79. Speed, however, is not the salient reason for filing a for-cause...
Access to Employee Records
While answering questions on a review board, I came across a request for information on employee records. I responded by citing to a Virginia CLE document covering the same topic -- see below! Blocking Access to Employee Records A recent Virginia CLE had a great write-up on this topic. I'll share excerpts from it here: Are Virginia employees entitled to a copy of their personnel files?No, with respect to employees of private sector employers. Most employees mistakenly believe that because a file has their name on it, it is their file. In fact, a personnel file is like any other company record and, unlike many other states, including Massachusetts (Mass. Gen. Laws Ann. ch. 149, § 52C) and California (Cal. Lab. Code § 1198.5), Virginia does not have a statute requiring that private sector employers permit employees access to their personnel file informa...
Harassment and Extortion
They Took a Video of WHAT!? What do you do if someone is threatening to do something (say, post a video) against you unless you pay them money, or give them something? There are really three avenues here. The first is criminal law. You can swear a warrant out against the offending individual. The code section is VA Code 18.2-59 and reads in pertinent part: "Any person who (i) threatens injury to the character, person, or property of another person, (ii) accuses him of any offense...and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony." Saunter down to the local magistrate office (usually at the adult detention center, but contact the non-emergency police number, and they can provide the proper address for your locale) and bring proo...
So I messed Up -- What do you do when you are the bad actor in a divorce?
From a recent discussion on the family law forum:Question to Hanover Law:My husband was cheating on me for fifteen years before I found out. Then I left the home after he became abusive to me in front of our children. I was gone for a while, so when I returned he had divorce papers served on me. Only for the divorce and no money was involved; the papers said that they were for divorce only and no settlement was involved. So I Left.... Answer: Generally, leaving the home without securing a separation agreement, protective order, court order, or some form of agreement opens you up to a claim of desertion. This is made worse by leaving the kids with the alleged "abusive" spouse. Would you leave your kids with someone that hurt you? That does not make a lot of sense. Usually, the Court will find that when one parent left, absent e...
Who will hear my child support/custody case?
A question of jurisdiction and venue: I was recenlty asked the following question in an online forum: I live in Virginia and my husband and I separated 7 years ago. We have a child custody agreement but no child support agreement; I want to file for child support and to change the custody agreement but I don't live in the county where it was filed. Should I file for the custody case to be transfered to the county I will be filing for child support? Should I transfer it first and then file for support? Venue vs. Jursidiction...just how does this work?Answer: Great question! We lawyers talk about jursidiction and venue all the time...well, more appropriately, jurisdiction. Rarely is venue an issue in a divorce/child support case. The proper location for divorce is circuit court. The proper venue for custody and support issu...
Waivers and Adjustment of Status for Refugee/Asylee Cases
A Clever Waiver for Humanitarian Refugees and those holding Asylum Adjustment of status for individuals granted asylum or refugee status can be tricky. Because they have no sponsor in the US, they have no easy means of converting from "legally here" to "lawful permanent resident" or LPR. In the code there exists a provision for just this case -- INA 209. Under INA 209, any refugee admitted under the 50,000 person cap as a humanitarian refugee pursuant to INA 207, and any individual granted asylum under INA 208, may apply for LPR status after 1 year (See, INA 207(a) & (c), INA 208(d)(3), and INA 209(a) & (b)). However, what if the individual applying for adjustment has a criminal history? Typically a 212 or 601 waiver would address these problems in an I-130/I-485 context (including removal proceedings) -- however, that cannot be done when the refugee or asylum holder cannot return to his/her home country to await adjudication of the waiver. Grid lock.
Legal Custody - a quick example
From a recent question/answer session on family law: Question: How does Legal Custody work? My sister is divorced, and she and her ex-husband have joint legal custody of their 7 year-old son. He has attended a blue-ribbon private school for the past two years, and he is thriving. He absolutely loves his school, which he attends with his cousin, who is his very best friend. His father wants to switch him over to public school, and has provided only a few (and in the mother's and my opinion, ridiculous) reasons to do so. The mother is the one who takes their son to school, picks him up, does all the volunteer hours, attends school functions, aids with homework, etc. The father has done NOTHING concerning the child's education so far, other than paying all the tuition the past 2 years (in lieu of the $300/month child support that is in the separation agreement, I might add!). The mother is willing to pay the ENTIRE tuition herself. Can ...
IRS Section 1244 - Claiming Worthless Shares
What happens when you invest in a company -- large or small investment -- and the company goes belly up? Usually, you are limited to claiming a max of $3,000 against regular income (unlimited against capital gains). But what if you invested much more? Enter 1244!Tax code 26 USC §1244 deals with the deduction for worthless stock -- either because of mismanagement or simple bad luck. Known as "1244 stock", qualified deductions under this regulation are not limited to the capital gains deduction cap ($3K outlined above), but rather have a much higher deduction of $50,000 for individuals, and $100,000 for married couples. To qualify for "1244" status, a company, whose stock is now worthless, must meet the following requirements:1) The taxpayer has to be the original holder of the stock (can't inherit it, or buy it from someone else).2) Taxpayer must ...
Ducking Service -- can I hide from a lawsuit?
Question:Can I hide?How important is it to have the parties' names spelled correctly on the complaint and other documents? An unhappy individual is attempting to sue my small corporation and me personally. If my name is John Smith and the corporation is ABC Inc. but the named defendants are John Smyth and ABCs Inc., could eventual default judgments be enforced against the correctly named parties? “John Smyth” has been "served" by posting at an incorrect address and the sheriff has been unable to locate a registered agent for the non-existent corporation, but I noticed in courthouse records that the plaintiff recently gave the sheriff a new address for an uninvolved person bearing my registered agent’s name. (Does the sheriff ask “Are you John Doe, registered agent for ABCs Inc.” or does the sheriff merely ask “Are you John Doe?”) I know the State Corporation Commission FAQ specifically says that ABC Inc. is distinguishable from ABCs Inc., but ...
HOME EQUITY CREDIT LINES -- AND DIVORCE
At a recent discussion on family law matters, I answered the following question: Question:HELOC Obtained without Joint Deed Holder Signature or ApprovalMy spouse obtained a $50K home equity loan behind my back, without me knowing about it, on our home in Virginia. We have since divorced, and now the bank is coming to me. Nothing was ever disclosed. I had no idea. What can I do? Answer:Unwanted HELOC and DivorceI am presuming that the property and the loan were taken in VA. If this is not the case, then the advice needs to modified (obviously). Two core issues: First, the divorce and the separation agreement attendant to the divorce; Secondly the Virginia Code section dealing with property and property transactions within a state. As to individuals (vice corporations, etc.), there are three methods for holding assets -- tenants in common, joint tenants, and tenants in...
Problems with Protective Orders
Another divorce question from the Boards: Question: Can i file a harassment suit against wife, she keeps taking me to court to get protective order but they won't grant and i have to keep taking off work. Answer:How to deal with harassment via protective orders:A couple of potential angles. First, you need to review your custody or divorce order and determine if there is a provision you can charge her with violating. If so, see about a show cause (contempt) order. Secondly, you can possibly bring an action for interference with your employment contract. Don't know enough if that will work. Finally, you can file a show cause on the current protective order itself. However, you definitely need to meet with an attorney about this. Why did you get a protective order in the first place? Why does a magistrate con...
A question of BANKRUPTCY -- can you hide an asset?
I was discussing bankruptcy on an Internet legal site, and was asked the following question: Question: If a family member is on the verge of bankruptcy, can I purchase their house for the small amount still owed to the bank and have the house exempt as an asset when they declare bankruptcy? Or, would this be considered conspiracy to commit bankruptcy fraud? My answer:There is no conspiracy here! Interesting idea, though. Generally, when a person declares bankruptcy, any asset is fair game for creditors. If the house in question has a good amount of equity, and the person declaring bankruptcy sells it for "a song" just before declaring bankruptcy, the trustee will yank it back (generally, a sale within 2 years of bankruptcy will be scrutinized -- beyond that, only if one of creditors ask for an investigation). He or she will void the sale and take possession of the property in the interest of the other creditors. Now this is just...
401K Rollover WARNING!
Folks - just a friendly reminder. I wrote a blog about QDRO's a few days past, and I had a couple of questions asked as follow-up to that post. There is a critical error you want to watch for when dealing with 401K and other "qualified plan based" retirement programs. ALWAYS ALWAYS ALWAYS do a rollover from the source retirement plan into a qualified retirement account (usually an IRA of some type is easiest and fastest to setup). There are some exceptions to this -- especially for folks that are particularly young, or for emergency situations. Here is why you want to do this:There is a 10% penalty if you withdraw funds from a retirement plan before you are 59.5 years old. You do not have this penalty if the funds are rolled into another retirement account.Taxes are withdrawn from the amount transferred unless the funds are stored in a qualified retirement account.
Drugs in DC - a posted question
I recently answered a DUI/Drug question on a legal board, and I thought the information was relevant to all visitors on our site -- so I am reposting it here: Question: So I live in DC and me and a few friends got caught the other day with about 6 grams of marijuana between us....the cops took us in finger printed us and all. I have a court date set for February 20th but I do not know what will happen to me in DC since I just moved here. The officer arresting me said that I would not be sent to prison but would likely have the charges dropped or be fined....how much would I be fined though? and would I have to go on probation for a first offense to get my charges dropped? Will i get drug tested in court? Please help...this whole thing is stressing me out...horrible way to start second semester. Reply: Firstly -- stop using drugs. This is neither humorous nor a light matter. Regardless of your personal view, drugs are still illegal and you wi...
The QDRO - Qualified Domestic Relations Order...or, Divorce and Retirement Funds
This week I helped coordinate the amicable end a cantankerous divorce case -- favorably, I might add. This issue revolved in part around the elderly couples retirement accounts (married for over 26 years - in their late 60's). As I completed the negotiations and concluded the settlement, one remaining task made me think about writing this blog -- the drafting of the QDRO (Qualified Domestic Relations Order). Now, a QDRO is a tricky beast. It involves dividing a qualified retirement plan (that's a 401K, IRA, or really most employer sponsored plan -- which includes non-profits, too!). Interestingly, as a small footnote, military and many federal government retirement plans are not handled via a QDRO, but rather through a separate procedure relative to each federal government plan! Be careful here. Where is the code defining a QDRO (pronounced "quad-roe") live? That would be 29 U.S. Code § 1056(d)(3)(A) which reads:Paragraph (1) ...
IRS Regulations Concerning Short Sales and Debt Forgiveness - FORM 982
Tax season is once again upon us. As our firm considers different methods for helping folks, one common theme we often encounter is short sales. We're located in the Northern Virginia/DC Metropolitan area. The number of short sales and foreclosures in this area is, and has been, high. Short sales, and foreclosures, often result in a write-off for the bank that holds the mortgage. This means that the bank cannot collect all the money that you owe on the mortgage itself, and just writes the reamining balance off as a loss. They agree not to pursue you to collect the difference. The problem, however, is that by writing that amount off, the bank is, in essence, giving you the balance of the loan as a gift. You are being told that you don't have to pay it any longer, and the bank will forgive the debt. Good news when your debt is forgiven. Bad news when it comes to taxes. A debt "forgiven" counts as income, and you should expect to get a tax form from the bank showing that...
Jury Instructions -- key to victory at trial
A jury trial is comprised of multiple steps -- and one of the most critical is the formulation of jury instructions. Instructions are drafted, generally, at the pre-trial conference stage. Opposing parties exchange suggested jury instructions on each area of contested law. Now, if there are nbo novel concepts to consider, then the instructions can be taken from the "generic" jury instruction selection provided by each Courthouse. You can find these in the law library or online from a sevice such as Lexis. However, when specialized, or non-normative instructions are required, you will need to write them yourself. A jury instruction is comprised of three components: (1) any statute or ordinance on point, (2) relevant case law, and (3) the instruction itself. An example of a jury instruction on "equitable estoppel" (lulling) might be:Governing StatuteNone known. Case LawFrom JANKOVIC v. INTERNATIONAL CRISIS GROUP, 494 F.3...
Voire Dire -- and the jury trial
Ever wonder how a jury trial really works? There are quite a few steps. In the next several articles, I will discuss a few really important aspects of jury trials. While we've been handling complex jury matters for years, we just finished (successfully!) a jury trial where the key elements really made a difference: voire direjury instructionsthe jury verdict form. "Voire Dire" is French, and means to see and to speak. A slightly more easily digestible translation would be "to observe and discuss." Although "question" would be more appropriate, the French word for that is "demander" -- and certainly nothing close to "dire". So we're stuck with observe and discuss. C'est bon! You may have heard the terms translated as: "speak the truth" -- that is pure fiction. Now, it is important to understand that you must get a good lawyer for a jury trial. Not only must your attorney be an excellent cross-examiner, he or...
BIA -- remember to STAY REMOVAL during Appeal
Happy Holidays to everyone -- and I hope this posting finds folks setting enjoying the season, and a warm fire. As I contemplate the thought of Christmas, I am reminded of the many clients we have that may not be with there loved ones. One method of ensuring that our friends who have been denied relief in immigration court is through a BIA appeal. However, it is very important to remember that once an appeal is filed, a stay of removal must be requested before the stay will be granted. Stays are granted as a matter of course when an appeal is filed.What are the steps to a BIA (Board of Immigration Appeals)filing? There are several routes, however, today we speaking only of an appeal from an immigration judge's decision. Generally, you have 30 days to appeal a decision of the Court. You must note your appeal at trial. Appeals are divided into three categories: (a) procedural deficiency, (b) abuse of discretionary (defined as a misapplication of fact or denial...
Model Witnesses -- a review of a trial strategy book.
This is a different Blog approach. For my posting this week, I thought I would review a book I recently purchased. I have several upcoming jury trials, and thought I would see if there were any good resources on trial tactics that perhaps I had not seen before. Never hurts to pursue new reading material! I decided on Model Witness Examanations, by Paul Sandler and James Archibald (Third Edition -- 2010). Not sure if there was a fourth edition, however, this work was recommended to me by a fellow practitioner so I thought I would give it a go. This is a very interesting work -- first, it provides concrete examples of how to conduct a direct (and cross) examination of a witness under different circumstances and for different purposes. Secondly, it sites rules and cases heavily, providing a strong basis for the example and supporting "reasons" for the rules. However, there are two significant detractors, and I am unclear why the book does a poor job of...
The abused spouse and the I-360 - VAWA
An interesting crossroads between Family Law and Immigration Law is the I-360 -- Petition for Special Immigrant Visa. While this form can be used for a couple of purposes, by and away the largest utilization is for VAWA purposes -- Violence Against Women Act (VAWA). Fortunately, this Act applies to both men and women, so do not be confused by the gender in the title. The I-360, in the Family Law context allows an abused immigrant to self-apply for a green card (LPR status) if the marriage that brought him/her to the US was broken due to violence, abuse, or fraud by the his/her partner. Under normal I-130/I-485 procedures, in order to apply for a green card (LPR status), once married, the sponsoring spouse (citizen or LPR) must submit supporting forms to show that the immigrant is lawfully married, and that the marriage is not a sham. This involves, among other things, the requirement that the sponsoring spouse attend the LPR interview for the immigrant. In the 1980'...
The Useful "Q" Visa -- another way to work in the US
I recently had the pleasure of writing an article or two for use in the AILA Paralegal Handbook. For informaton on ordering or learning more, go here: Paralegal Manual. For an overview of material covered by the book, go here: Table of Contents. An area I covered for the book included Q visas. This handy visa is an excellent work-around for finding a legitimate means to bring over a foreign worker for a short duration work experience. I've included an excerpt below. There are two forms of exchange visas issued by the United States. The first, and most common, is the J visa. Less common is the Q. This under-used visa category offers unique opportunities for the immigration advocat...
DUI -- and the five day rule
Recently had a couple of DUI's that seemed to have come to me after they had attended their initial hearing. This is just a reminder about seeking to have your license re-instated prior to your hearing date. In order to do so, you must file with the DMV to have a preliminary hearing within five days of having your license taken by the police for a DUI. This is known as the "five day rule." A mere arrest for DUI is not a conviction, and an argument to have your license re-instated pending a trial on the merits will usually be permitted. Remember, though -- you must contact the DMV within 5 days of getting the DUI or jurisdiction on the license question is permanently transferred to the courts. Need help with a DUI or OWI? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in drunk driving, operating while impaired, and drug cases.
TRO (Temporary Restraining Order) and Injunctions in Civil Cases
I had an interested day in Court today. We won our case -- the surprise was the amount of evidence and the depth of the hearing. Usually a TRO -- slang for a temporary restraining order -- is almost universally granted pending a full hearing on the matter. In this case, we represented the respondent -- the individual being accused of taking actions that should be "stopped." How did we beat this case? The key is understanding what is requried for a TRO. First, a discussion of the process. When a petitoner brings a complaint of harassment, threats, or assault, that is not family related, the Court will schedule an initial TRO hearing. Additionally, the court will schedule a full injunction hearing for about 90 days following the TRO hearing date. The full hearing is conducted in front of a judge, using strict rules of evidence. A TRO requires that the petitioner (the person bringing the case) show:(1) that there is a substantial like...
Tax Liability and Divorce
So what happens when your love is shattered on the shoals of acrimonious divorce? Well, according to the tax man (aka Federal Government) -- not much. A joint tax liability waits for no man (or woman!), regardless of the current status of the divorce. Let me explain what this means, and then a few tricks to address the problem. Okay -- here's the scenario. Wife and Husband have been married for five years. They created a joint basket business supplying eager underwater artists. The business was a success but the marriage was not. On the eve of the fifth anniversary, wife informs husband that the honeymoon is over, and serves him with a causes bellos for mensa et thoro in Virginia. All is progressing as these actions are want to do, with a large joint asset pool, including vehicles, an expensive home, and two kids. Then -- the unexpected happens. In August of 2012, the IRS contacts the husband (nominal CEO of the basket business). They are being audited. The t...
IRS Form 443 -- Help, I can't pay my taxes!
So what really happens when you are waaayyy behind in your taxes? You see those ads on TV that promise to reduce your debt -- "Call us! We'll handle the IRS for you!" How true are they? What is an offer in compromise, and what it the process for contactin the IRS Field Office? Can you do this without an attorney? Are they unfriendly!? Enter the IRS form 433A. These are great questions! And, yes, you can do much of this without an attorney. This blog post will talk about what is required to "fix" deliquent taxes. Remember, an attorney (that would be Hanover Law, of course!) can really help sort through the mess and guide you in the process. However, believe it or not (gasp) -- the IRS is rather helpful in providing pointers and tips on how to move forward. The difference with an attorney is that we can often get help faster for you, and usually talk directly to the folks that make decisions on your case. More on that in a moment. So is there a magic button? ...
CBP and LPR -- what happens at a "deferred inspection"
Interesting case recently. A client called us with a not-to-uncommon problem. On the way back from visiting an ailing relative in Costa Rica, the family was stopped at Dulles International Airport (a la Virginia). The dreaded hand gesture was made by an immigration border officer to "go to line B". Deferred inspection is in your future. When Custom and Border Patrol (CBP) takes your passport and gives you a date to return to talk to them -- that is deferred inspection. So what happens? You get a deferred inspection when you have criminal incidents in your past that could reasonably lead to inadmissibility into the United States. Eh, you say? What is THAT!? So first, a discussion on crime and immigration. Remember, no matter how old your criminal convictions they are still eligible for immigration review. There is no "ignore after certain date" -- although, there are crimes that are treated differently if your convictions fall before 1990 (among...
So you're going to immigration court...what should your lawyer do?
Ah...the fun of the court room! Gotta love it! Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a...
PODR - ICE Detention with a Final Order of Removal
Front-line immigration law work (affectionately known as "in the trenches" law) usually involves taking crazy situations and attempting to find some nuance -- a subtle interpretation of an obscure memo or regulation -- to give an otherwise hopeless situation a glimmer of "possibility." One are ripe for such plucking is the post order environment. "Post Order" refers to the period after a removal order has been entered, but before a client has been transported to a holding camp, and then off to the country of deportation. Post Order Deportation Relief (PODR) are the tactics used to attempt to jam that process based on ICE not moving forward in a timely manner. PODR does not grant any benefit to your client, only prevents them from being vacuumed out the exit door prematurely. There are four steps to PODR:1. 30 Day automatic review by ICE2. The 90 Day Letter3. The 180 Day Letter4. The habeas corpus filing Governing regulations are Zadvydas v. ...
TPS for late filers -- Asylum and a new approach that might work...
We were recently approached by a charming fellow from El Salvador. He had been here illegally from 2008, and was not eligible for most forms of relief under standard INA outside-of-court options. Although, he did not have a phenomenal claim for asylum, he had been badly abused in El Salvador, which gave rise to his "escape" to America. I do believe we have some traction with a late asylum filing, but it will be tough. However, I wanted to see if there was some way to get him Temporary Protected Status -- or TPS. TPS is the golden grail for El Salvadorians without other means of adjusting. The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our desponde...
DACA (deferred action) and crime -- what happens when you have a conviction?
We recently completed a DACA (Deferred Action for Childhood Arrivals) case for a client who was convicted of simple possession of marijuana (less than 30 grams). What is involved with resolving criminal convictions for DACA applicants? You may have heard that criminal convictions are a complete bar to deferred action -- and this is largely true, unfortunately. But like every good rule, there are...exceptions. It is often worth speaking to a qualified immigration attorney (that would be us!) to determine if you meet one of the exceptions and are in fact eligible for I-821D (deferred action) relief. To begin an analysis of whether you can apply for DACA, we will review the level of criminal activity. What is a "significant" misdemeanor as barred by the deferred actions rules? Any offense that has a term of imprisonment less than one year but more than five days and is an offense of: 1. Domestic violence 2. Sexual abuse/exploitation 3. Firearm violation...
GALs (Guardian Ad Litem) -- when and why
Guardian Ad Litem (GALs)By Shara HerrToday I had the chance to speak with our Family Law attorney, Stephen Salweirak, discussing the topic of GALs and their importance in difficult Divorce/Child Custody cases involving neglect or abuse of children. What is the role of a GAL? In some cases, especially those involving abuse or neglect, the children involved have rights and interests they are unable to protect on their own. The GAL provides the voice for these children, protecting their safety and needs and finding the best options specific to the case. Good GALs will not only interview the child in their home environment, but also take them out of their typical environment so the child is able to speak freely about any neglect/abuse in the home. They may also interview teachers, other child care providers, family members and anyone else that would have relevant information about the child’s best interests. These attorneys are appointed...
So you are a witness...
For some people, there is great anxiety in appearing in court. This is especially true if the case in question revolves around you personally. Always a challenge! However, as trial attorneys, we have learned a few tricks that make appearing in court easier. Specifically, what the heck happens when you "go on the stand" -- this article will talk about immigration court, and state court specifically (criminal law, and family law), but it applies to any hearing where you are in adversarial proceedings. The key thing to remember about testifying is -- everything you say can and will be used against you. It is the job of opposing counsel (or the state, in criminal cases) to try to learn everything he/she can about you, and then use that information against you, or against some individual in the trial. Remember, you are speaking under oath. That means, if you lie, bad things can happen to you. Perjury is the act of lying under oath (to perjurer one's self...
New Provisional Waiver -- I-601A. Key for EWI I-30 Processing
The long awaited issuance of the state-side 601A waiver is over! The new regulations go into effect 04 March 2013. This is great news to many individuals waiting for 601 waivers in order to proceed with their I-130/I-485 processing packages.HistoryPerhaps a brief explanation is order for the rest of us! Many immigrant family members find themselves with a serious problem. They realize that, although they qualify for sponsorship by an LPR spouse, because they entered the country illegally, they are no allowed to convert from non-immigrant status to LPR status without first obtaining a waiver (called an I-601) allowing them to be forgiven for entering, and remaining in, the country illegally. Living in the US illegally triggers a 3 or 10 year bar, depending on how long you remained here illegally (1 year = 10 year bar). You cannot be sponsored until you have spent that time outside of the country. In order to avoid the...
IRS -- Stopping Collections and the awesome 433A (or 433F) form
Ho Ho Ho! It's getting right around the end of the year now, and that means the dreaded specter of taxes! Everyone is ready, right!? Well, perhaps. But if you are like many of our clients, you're more worried about the past than the future. Past IRS tax debt can be a monster. In this article, I'll discuss one tool in the arsenal of tax attorneys -- the 433! IRS form 433 is a collections information form, and completing it, along with substantiating documentation, is the first step to getting things "right" with the IRS. So..what exactly is this IRS 433 form? Glad you asked! In the days of yore, the IRS was little interested in whether you had money or not. If you did not pay your taxes, the Service would just "swoop" in and take everything. Furniture, cats, small children -- all your money, bank accounts, etc. There was extremely little they would not touch, and absolutely no mercy. If you did not pay your taxes, you were considered a fraud, and very little effort ...
A Primer on Divorce -- the three key areas and samples
Folks -- we get a lot of phone calls on divorce. Most people come very angry and often confused as to what steps are required to get a divorce. That is not altogether a bad thing -- divorce should only be undertaken if there is no chance of reconciliation or there is danger to one or both parties. That having been said, I wanted to provide a brief overview on divorce, what you can expect to discuss with your attorney, and provide a sample separation agreement (this is from VA, but it is very similar for DC and MD, too). There are three areas to divorce, and one special cavaet. The three areas are: 1. Separation Agreement: Covers property and marital assets obtained during the course of the marriage. This includes things purchased separately, but during the marriage (i.e. the car is only in husband's name, but it was purchased during the marriage -- it is still joint property in a joint property state (MD, VA, DC). Ditto on the house only in the wife...
A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief
I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth. After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012. I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprise...
Marriage Fraud and INA 212 - or 237(a)(1)(H)
Marriage fraud is more common than most folks think. Application for US Citizenship and green-card status (LPR) is a long, painful road. Marriage offers a relatively rapid acceptance into the USC/LPR ranks, and is therefore extremely tempting from a fraud persepctive. To defeat a claim of marriage fraud, some of our clients have actually attempted to to bribe their respective former spouse to recant his/her statement to USCIS that the marriage was fraudulent. Usually, it is the sworn statement of one or the other spouse that gives rise to a fraud claim. Of course, our law firm starts singing loudly at that point and covering our ears..one can never condone such conduct (perpetuating fraud and all). However, if the original nay-sayer DID recant, you would have a legal argument… That having been said, if you really want to fight a marriage fraud, you really need to attack the original marriage and show that the spouse currently being charged with marriage fraud was...
Clarification on Double EWI -- follow on to the post from June 2012
I was contacted by a fellow practioner today regarding double EWI's. She had an excellent question, and I thought I would display my answer here. You are right about the need to accrue 1 year unlawful presences before you’re really “in the soup” with a double ewi. The catch-22 is that if you cannot prove the time you entered and left, the presumption is that you did accrue the requisite time and the double ewi becomes a bar. Fancy, eh? Wait until they pull that on you at court! It usually goes like this…Client stopped by police for driving on expired tags (or whatever)Asked when she came to the US – she says 2001.ICE later interviews her and she tells them she has been going back and forth across the border “for years”.The last time she crossed was in 2003 when she decided to “stay for good…too dangerous to make the crossing anymore.” Uh oh.Presumption is that between the first EWI in 2...
CBP Code Stamps (Codes found in passports -- immigration law)
From time to time, we get requests to dechiper scrawl found on I-94 forms, passports, or even handwritten notes on visa pages. I am including in this brief post the codes that are often associated with those scribbles, and what they mean:(As a footnote, credit is due to Mr. Robert Rone, an attorney in Mobile, Alabama, and Ms. Meighan L. Vargas, another attorney specializing in immigration law. While they did not come up with the codes (obviously!), they did format them in these nice tables I am displaying here.) CBP is an abbreviation for "customs and border patrol", and it refers to the officers that inspect incoming aliens upon arrival in the US. From the CBP website: After the successful completion of processing the applicant, a CBP officer stamps the applicant’s CBP Form I-94, Arrival and Departure Records, and the passport. The CBP Declaration, used at air and sea ports of entry, may also be stamped by the CBP officer. The CBP officer reta...
I-94 and -Humanitarian- Notation in Immigration Law
I was recently answering questions on AVVO, an attorney inquriy board that, in part, specializes in immigration questions. An interesting question about I-94 forms and humaitarian/refugee parole was asked. First, you need to understand the purpose of an I-94. The I-94 is often (but not always) given when an immigrant enters the country through a boarder crossing or inspection point. The actual name of the form is "arrival/departure record". It should be noted that many immigrants do NOT get this, and its absence does not per se cause a denial of any benefit (although it does shift the burden of proving legal entry onto the immigrant). Most commonly, folks come to the United States under a B2 visa. This visa, known as a visitor visa, entitles the bearer to remain up to 6 months in the country. The actual amount of time the visa holder may stay is -- you got it! - marked on the I-94. There are also certain codes entered on the I-94 that tell CBP (custom and board patrol officers...
Duty of Fiduciary Care -- Duty of Loyalty (business law)
While the Firm is quite adapt at handling immigration cases, and frankly, many of our clients are aliens, illegal or otherwise, we also have a vibrant business law practice. We recently filed in Superior Court (Washington, DC) for a client suing a former business with which he was associated. While the case is interesting on its own, just for the relationship between the plaintiff and defendant(s), the matter at focus in this blog is one cause of action brought forth in the complaint -- Duty of Fiduciary Care (and as a subset, duty of loyalty). What are these concepts..what do they mean? When an executive or key employee is entrusted with operations at a company (corporation, partnership, or LLC), they have a duty to place the wellbeing of the company above their own gain. They cannot "sell-out" the company, and they cannot purposely fail to take action that would benefit the company or keep the company in the same position it currently holds -- just so that they pro...
Gang Asylum-Withholding Cases (second post)
In my previous posting, I shared relevant case law governing BIA decisions in gang related asylum/withholding I-589 cases. I now turn to a discussion on how to argue the actual case. For security and privacy purposes, the name of the petitioner is removed. However, this material can be used as a tool for organizing a logical appeal brief. For brevity sake, footnotes have been excluded. Contact me for case information located in the footnotes. A. CRITERIA 1: Immutable characteristic In the December 2007 Executive Office for Immigration Review, Immigration Law Advisor, the article, Gang Violence and Asylum: The Problem of Defining a Particular Social Group by Ms. Katherine A. Smith, discusses the immutable aspect of gang membership. She argues: ...[O]ne view is that a group consisting of former gang members meets the immutable characteristic test because former membership is a characteristic of the past that cannot be changed. For example, in Sepulveda v. Gonzales, 464 ...
Gang Asylum-Withholding Cases
Our firm recently submitted an I-589 asylum/withholding appeal for a client that was involved in gangs while living in Guyana. Our BIA appeal centered on what is considered a "social group" for purposes of withholding. We argued that, "former gang members who have publically renounced their gang affiliation and taken substantive steps to effect the renunciation" are a discreet social group warranting protection. This is the first of a two part posting on the topic. This first post covers current cases (we are located in the 4th (Federal) Circuit -- The 4th Circuit has upheld BIA’s definition process for social groups. Citing to the same cases outlined in the text below, the Court stated: “Neither the relevant statute nor its associated regulations specifically define the term "particular social group." We therefore defer to the BIA’s reasonable interpretation of the term.” (citing to Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir. 2009)). Lizama v. Holder, 629...
Assignment -- what the heck is that? (contracts)
A former client of ours revisited our shop this week, and asked for help in modifying an employment agreement. Nothing unusual about that -- but the requested paragraph was rather interesting. He asked us to modify/update his Assignment terms.In contracting, the terms "Assignment" refers to the right of one or more of the parties in the contract to "assign" (give their rights, privileges, or duties to another) their portion of the contract to a third party. Why would anyone want to do that? Restatement (2nd) of Contracts, chapter 15, deals with assignment of both duties and rights under a contract. Assignments are generally important to folks for two reasons (most common -- this is not exclusive): (a) death of a party and the liability of the estate, and (b) right of sale of the contract (such as a business). If one party to an agreement dies, who is responsible for fulfilling the obligations or receiving the rights/privileges of the contract? Gener...
Defense to Traffic Stops (no license/etc.)
We have a section of the firm that specializes in criminal law, and a frequent cause of action in this group is (are) traffic stops. Now, for your average ticket, this is not an issue. But what if you are stopped and then fined for having an expired license? For driving without a license? For driving on a suspended license? Even some DUI issues fall into the questionable area of: Do police have the right to stop you for no reason other than to check your credentials or who is in your car? I spoke with an associate of Hanover Law, Mr. Stephen Salwierak. He is the attorney that handles most of our litigation in Virginia, and often runs into illegal stop questions in traffic matters. He provided a brief explanation out of a recent case filing he made in Fairfax. (from Mr. Salwierak)Without violating Fourth Amendment protections, an officer may conduct a brief, investigatory stop when he has a reasonable, articulable suspicion that criminal a...
Motions to Re-Open in Absentia Decisions
Many of our immigration clients come to us with serious problems -- often with imminent threat of deportation looming over their heads. I thought I would take a moment to discuss how to re-open a case where a decision was made against you in absentia (you weren't at the hearing). When a client has been found deportable in a prior removal hearing, an order of removal will be issued by the judge, and the immigrant should be deported. However, it happens frequently that immigrants who should be removed are left languishing in the United States. One reason this happens is failure of the ICE or DHS representative to properly serve the alien with a notice to appear, or if served, with a trial date he/she needs to be present at. This is especially true when the alien does not have an address to mail notice to, or the address given was not properly understood and no notice was ever received by the alien. The take away from this: To be a valid form of service, the alien ...
I want my money! What do I do? (What to do when you are not paid)
This has been an interesting week for civil trials at Hanover Law. A common theme was - "I want my money, bitXX!" (ahem). Namely, how do you collect money owed to you for work done? First, let me caution you that obtaining a lawyer to go after money that is owed to you is often not a good idea. We attorneys tend to charge a minimum of $1500 to go to trial, and unless you can expect to get at least double that, a civil suit to collect money is likely a bad choice. A good attorney will always discuss whether a suit makes sense for you -- and be sure to ask about fees and the likelihood of success. Oddly, hand-in-hand with this, we have had to turn down clients that absolutely wanted to sue, even if they would lose money doing it. Revenge and anger are poor motivators for legal action. NOT because they can't be legitimate and proper, but because they tend to cool llloonnnggg before trial is ever had. As such, the client wakes up 6 months into the battle, only...
Lost Entry Document (non-EWI proof!)
Occasionally we get an immigrant/alien in our office who was admitted to the United States legally, but is still considered EWI (entry without inspection) by the government. For those new to the immigration law arena, EWI is a criminal act. A double EWI can lead to a permanent bar from the US, and a single EWI can bar any change of status while in the US, and prevent entry (via visa) into the US for up to 10 years. Theses are serious consequences! The burden on proving lawful entry into the US rests with the alien. He/She must show a valid I-94 stamp or document in his/her passport to rebut the presumption of illegal entry. What happens if you enter the US and don't get an I-94? Happens all the time. Most common example is Canada. Cars are frequently passed through the border crossing with only a cursory glance at ID or passports -- especially if one of the members in the vehicle is a US Citizen. Entry through a valid border -- even if just waived thru by the CBP (cust...
Stopping Deportation - Difference between CAT and ASYLUM type relief
Admittedly, this is an odd title for a blog post. However, the focus of this entry is tactics -- and it is not just limited to removal proceedings. Specifically, this post will cover the difference between ASYLUM and WITHOLDING relief/submissions and CAT/TPS claims. The key difference between the two groups is focus. A CAT (Convention Against Torture) and TPS (Temporary Protective Status) claim focuses NOT on the client or alien, but rather on the state of the country from which he/she comes. What are the conditions of the home country? Would the alien likely be tortured or killed if they returned? Is the country listed on the TPS register (State Department)? Whether the fear or torture is reasonable or not, or whether this particular alien is well founded in his or her fear has much less weight. A brief note about TPS and CAT: TPS is not so much a defense, as it is a request by an alien, already present in the US, to be allowed to stay while conditions i...
EWI -- Entry without Inspection
There was an interesting question on the AILA Boards recently (America Immigration Lawyers Association). The question dealt with an individual who had entered the U.S. twice via EWI (or just "EWI" which is pronounced "eee-weee"). The individual was married to a U.S. citizen, but in a nutshell, the question could be distilled to: What is the effect of double EWI on an I-130 application for change of status when the illegal is married to a U.S. citizen? The problem is that a double EWI is an automatic permanent bar to U.S. citizenship -- or, in fact, any entry into the U.S. at all. That means no visa, no LPR, no spousal waiver -- nadda. See INA code section INA 212(a)(9)(C)(i)(I). To analyze this problem, we first must discuss what the heck an EWI is. EWI means you entered the U.S. without going through a custom's "portal", such as an airport, border crossing, etc. In some instances, such as Canada/U.S. border, where the citizen is Canadian or U.S., this is really ...
TAX: Failed to file proper Sub-S Election? IRS Proc. 2003-43
So...you are frustrated! Your sub-s company receives an IRS Notice and an IRS Letter from your accountant apologizing for an odd problem -- it appears that your IRS form 2553 (Election by a Small Business Corporation) was not received in time for this years taxes. Despite having filed the taxes timely, and sent appropriate K-1's, the IRS is now considering the company as a standard "C" corporation. This has devastating consequences for taxes and the treatment of corporate income. You are not alone. Misfiled, lost, or not-filed elections are quite common in small business. If the IRS processes your company as a "C" corporation instead of an "S" corporation, the most obvious result is that pass-thru income is no longer a valid tool in your corporate tax tool-box. The firm itself will now owe taxes on the net income earned by the company. Individuals who received distributions from the company will still owe taxes on the amount earned. This is the cursed "double taxation" ...
Defamation and Slander
Everybody has experienced this -- someone has spread rumors or nasty comments about you or your activities to others. When does this conduct rise to the level of defamation? Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation. To prove a case of defamation, the plaintiff must show: 1. The offending party acted intentionally, and2. The offending party's statement was publicly uttered (i.e. it was published or spoken), and3. The offending party's statement was false, and4. The offending party's statement caused some ec...
How to win a B2 visa application interview
How to win a B2 visa application interview:This post really applies to individuals who have been denied a B2 visa in the past. For a full list of US Consulate criteria for passing a visa interview (for non-immigrant visas -- all types), see www.hanoverlawpc.com/immigration_visa_tests.php. Of course this list is NOT a substitute for talking to an immigration attorney (that would the Hanover Law firm). Additionally, this has NOTHING to do with out-of-status, or illegal immigration. This only applies when you are attempting to get a visa at an overseas US consulate. Non-immigrant visa application questions you should have answers to (specifically for B1, B2, but actually for ALL non-immigrant visas): Family Situation1. Discuss any living, immediate, family members (brothers, sisters, mother, father, children, spouse, etc.) Specifically, name, age, living addres...
Military Spouses -- Another tool to Get Legal!
Members of the military often face special challenges when bringing foreign born nationals into the United States. The Department of Defense recognizes any spouse, regardless of nationality, where the marriage to the service member is legal. However, for immigration purposes, foreign born spouses present unique challenges when returning to the United States. The ability to remain in the US legally (that is, "in-status") and to obtain a green card (LPR status) can be challenging. This blog article deals only with the challenge of military spouses who did NOT properly obtain a valid visa when entering, or allowed their visa to lapse AFTER entering the US but before filing for I-485 adjustment of status (converting to an LPR). The standard, I-130/I-485/I-601 (and soon, I-601A) method for correcting this status can still be used -- however, military spouses have an additional tool in their arsenal -- the Del Mundo Case (Del Mundo v. Rosenberg, 341 F.Supp. 345). A...
I'm married to a US Citizen -- What Happens Next?
Marriage is a wonderful thing -- but how does it effect immigration law? Legal status? LPR (legal permanent resident or lawful permanent resident) and work status (EAD -- employment authorization documentation)? It is important to remember that immigration is roughly divided into to sections -- innies and outties. Alright, perhaps the simplistic description is misplaced here, but the concept is the same. Are you inside the country, or outside the country? If you are outside the country, the process is I129F, I130, K3 (spouse). If you are inside the country, the process is I130, I485, and if illegal, I601 (waiver/hardship -- tricky here, as there are proposed rules changes with the 601/601A). What are all these "I" forms, and what do they do? First, "I" stands for "Immigration" and designates a type of government form related to USCIS (United States Customs and Immigration Service). You will occasionally also see EOIR forms (Executive Office of Immigration...
Duration of H1B Visas in terms Business Contracts
Interesting contract drafting exercise today. I was working with business contracts -- specifically, an employment agreement between an employer and an employee. During the course of writing the document, we hit both business law and immigration law -- It made me think it might be useful to discuss foreign workers and their impact on employment agreements in my blog. It certainly applied to today's contract, and it seems to be a growing trend. To address this problem, you really need a business lawyer who also specializes in immigration law. Look no further! The frustration for many employers is the cost of the H1B visa -- and the omnipresent risk that once an employee obtains a visa, they will "jump ship" and work for another company who pays more because they did not have to "foot the bill" for the visa expenses. For those of you who are not aware, an H1B visa costs about $1500 in legal fees to pursue, and that does NOT include the cost of filing with the USCIS.
Privity and the Ties that Bind...
As a business owner myself, I completely understand the frustration of not getting paid! Or, still better -- being the sub-contractor on business contracts that for reasons not related to your conduct, the prime does not get paid, and so YOU don't get paid. We at Hanover Law are business lawyers (among other things!). Payment is often the number one reason why clients come to us with business disputes, and the first discussion Hanover Law has with them -- are you in privity? As a concept, privity stems from the root word "privy" meaning, "to be a party to". Privity developed as a formal legal doctrine in the mid-1800's in England as an attempt to define why, without consideration, a third-party had no rights in a contract (i.e. "privity" was the term coined to describe this state). While there are some clear exceptions to the rule of privity, essentially, the original meaning still stands. An example of "in privity" would be:ABC Company signs...
Difference between an employment CONTRACT and employment AT-WILL
At Hanover Law, we frequently are called upon to draft employment agreements. I thought I would take a moment to explain the basic difference between employment at-will, and employment for a specific duration or case (called "term"). I should note that there is a difference between independent contractors and term employees -- I'll write about independent contractors at a later time. I won't be focusing on them in this blog today. Additionally, do note that "term employees" is not slang for "terminated employees" or "employees who are going to be terminated." Think of "term" in the sense of life insurance -- for a stated duration or purpose only. Once the time-frame or purpose has elapsed, the contract is extinguished. While there may be "closing" or "residual" obligations stemming from the contract, an extinguished contract is just that -- over. Generally, the term "at-will" means that an employer or employee may end the working relationship with or without rea...
What to Expect When Arrested
A rather bleak topic, but one that I encounter from time to time -- and an honest question. What happens? The good news is that for the most part, the system is on auto-pilot. Booking, and intake is largely routine; and few individuals are really questioned for misdemeanors or petty crimes. It goes without saying -- however, I'll say it anyway -- be respectful, cooperative, and considerate to the arresting officers. A combative nature only puts you at higher risk. And, surprisingly, many police officers are just as anxious making an arrest as you are being arrested. Do your part to lower tensions and let the process play out.Once you are "booked" (slang term for being photographed and entered into the police tracking system), you will be place in the "tank" -- a holding area. If you have not been taken before a magistrate, that will happen immediately before being placed in the tank, or very shortly after being held. The magistrate will listen to the arresting officer,...
Really? An unbelieveable linked in invite...
So here I am, meandering the great labyrinth of the Internet, when I receive a notice from LinkedIN (Sean Hanover) about an individual who wants to "link" with my profile. For those who are unaware of what this means, essentially, once "linked" we can view each others' full profiles and it shows that we are -- you got it! -- linked! Very useful for networking and blitz emailing. Also helpful for my IT operations, as it keeps me in contact with contractors and potential business leads. Handy. I digress, however. I'm not that popular, so the occasional request for "linking" causes a raised eyebrow. This link request include an explanation as to why they wanted to link (remember, I'm an attorney here):You asked for humor when connecting and I appreciate your honesty, but isn't a honest lawyer an oxymoron? (followed by other information on how he purported to know me) What the ...
Are They Crazy!?
I usually take a fairly tempered view of news articles about legal events, but this most recent posting from the New York Times (see Hutaree Militia) just baffles me. In truth, it makes me jealous. This would be a lot of fun to defend. Everyone deserves a fair trial, and a good defense -- I should know! I'm a defense attorney. But even I have to raise an eyebrow at the shenanigans our fellow "patriots" can pull. To be clear -- I use the term loosely. The case centers around a homegrown vigilante group called "Hutaree" who, living in the backwoods of Lenawee County, Michigan, seem to have confused Star Wars and reality. In their effort to "strike back" against the evil oppressive empire (err...US), they snuck around in ghillie suits and amassed over 140,000 rounds of ammunition. That might explain why there was no room in the trailer for the leader, Mr. D...
Difference Between Jurats and Acknowledgments
Near my home is a Navy Federal Credit Union branch. Being a member, I availed myself of their convenient location; this last weekend I had several documents for the Virginia Bar notarized. While standing in line, I had an opportunity to chat with another customer who was curious about what, exactly, a notary does. I thought I would explain the basics of notary lore, and remind you that our VA office provides notary service, too! The two main duties of a notary (but by no means the only ones) are the taking of jurats and acknowledgments. A jurat is an oath, administered by the notary, stating that the individual making the oath "swears or affirms" the truth of the matter asserted in the document. Note, it is not the notary swearing the document is truthful; it is the individual who gives the oath to the notary. A jurat has legally binding power, but requires that the affiant have actual knowledge of the information they are affirming, and that they have the ca...
New Immigration Rules Proposed
Things just got a little easier -- maybe! Proposed rule changes by Alejandro Mayorkas, the Director of US Customs and Immigration Services, would make it easier for an illegal immigrant married to a US citizen spouse to leave the country and return legally to the US. This is a major change he is proposing, and worth understanding a little better. As it stands today, a major source of frustration for illegals and attorneys alike is the 3/10 rule. Essentially, if you are in the country illegally for over 180 days, but under one year, you have to be out of the country for three years before you may apply to re-enter legally. If you have been in the country over one year, you have to wait 10 years before you are eligible to re-enter the US. As you might imagine, this presents a serious problem to married couples (and families). There are numerous ways to attempt to overcome this base regulation. However, one of the more common, and legally accepted methods, inv...
Immigration Laws Get Nasty in VA
My practice manager brought a series of recent develops to my attention today that I thought would make a good blog post -- illegal aliens in the state of Virginia pay heed. If you are not legal, you need to contact a good law firm immediately (let me recommend Hanover Law PC). The Washington Post and many other online resources reported several new measures that recently passed in the VA House of Delegates. While these are not yet law, they will almost assuredly pass and be signed into law within the next 90-180 days. (This list is from NumberUSA, a blog site tracking immigration issues) HB 1430: would require sheriffs to inquire into the legal presence of anyone arrested, independent of whether they were taken into custody at a jail, and require federal immigration queries on self-professed non-citizens. It passed 72-to-27. HB1465:
When Should you Sue your Boss? Your Employee?
Angry employees, and for that matter, angry bosses, are not at all rare at work. But when does an outrage rise to the level of warranting litigation? This is a tricky question balanced on both pride, cost, and potential degree of injury. The hardest aspect for most would-be litigants to understand is that in order to be successful, the plaintiff (he or she who is suing) must do much more than just feel slighted. Unfortunately, most courts are not persuaded by the desire, passion or feelings of the plaintiff. It requires that awful word...proof! So what exactly is "proof"? Well, from a strictly legal standpoint, it is evidence that can be corroborated or authenticated in a courtroom setting. This requires witnesses to working conditions and hours, independent verification of work performed and pay rates (must be brought to court and authenticated)and in the case of the employer, often expert testimony validating the discipline or action take...
When Do You Really Need a Business Lawyer to Start a Business or Review Contracts?
I receive several calls a week asking for business law support. Specifically, there are two categories that come up most frequently -- contracts and "starting a business". The question is -- do you really need to pay for a lawyer in either case? Now, obviously, if you have a voluminous contract with complicated contingencies and difficult to follow clauses, a business lawyer is key. But what about the standard two pager? How can you tell? First, you don't always need a lawyer. At least half the folks I speak with end up not needing legal assistance. Part of my job as a good attorney is to not only recommend the proper course of action, but also be willing to indicate when you should not pay for legal services. Sound counter intuitive? Not really. A good lawyer is honest about services, and should always be upfront with what's best for the client. Period. In terms of contract law, the rule of thumb is NOT how long a contract is (I have seen some...
S-Corporation (and Partnership) Tax Filing Date Cometh...
While IRS Publication 509 calls for tax submission no later than the 15th day of the 3rd month after the end of the corporate year, for most S Corporations, that means March 15th. In the frenzy to file personal taxes, sort receipts, business expenses, and general mish-mash of taxable items, it is easy to forget the filing of an 1120S. You'll need the K1 from this filing in order to complete your own personal taxes, and any shareholder will need them, too. What happens if you forget? The IRS will assess you a fine of up to $195 per shareholder, per month. This is galling, not only in the price tag, but also because for most of us, this is merely an "informational return". Information returns are to (surprise!) inform the IRS of tax status, or distribute such forms as K-1's of partnership notices. No taxes are paid. Sub S corporations are generally automatically eligible for a 6 months extension (file IRS form 7004), although I have never seen this done. I...
Same-Sex Couple Married in DC and Moves to VA...and Files State Taxes Jointly. Uh oh....
The problem is that Virginia does not recognize same sex marriages. In fact, it gives no comity to same sex marriage performed in sister states. This presents a rather difficult legal pickle. The whole idea behind comity is to prevent an impossible mish-mash of laws between the states; and ensure fairness -- you agree to my laws, I'll agree to yours (admittedly simplified). So..what happens when this breaks down? In the example from the title, a lesbian couple legally married in DC has no rights as a couple in Virginia. They could not file a joint tax return claiming married, filing jointly. If the couple did, they would be filing a fraudulent return, as VA specifically disclaims same-sex partnerships, and affirmatively denies them the right of married couples (such as joint filing of taxes). But is this legal? Arguably, it is not. This is genesis of a really interesting lawsuit. If you argue the Constitution grants the right (via a "penumbra" emanating ...
Do Immigration Lawyers "Matter"?
This seems to be a season of lost spouses. Today, I had the privilege to chat with another potential client regarding her spouse who appears trapped overseas. I discussed a similar situation in an earlier post. In this case, a gentleman went overseas to take care of family business in Nigeria. He is married to an American here in DC. He was gone for 9 months. BAM -- no return entry permitted. Now here is the debate: Is it better to pay less (at least in terms of legal fees; filing with USCIS is expensive regardless)and file your own SB1, K3 or appeal, and hire an attorney to draft the paperwork and send it to your spouse overseas? Honestly, the results are mixed in my opinion. Assuming the party to whom you are providing legal serves is competent and savvy, they may be able to handle the drafting of the requisite USCIS/Consulate forms themselves (or with minimal advisement and review by counsel). However, where I DO find legal assistance is rea...
Nothing Like Arguing By Yourself -- or -- What Happens When Your Client Changes Positions Without Telling You...
I really enjoy contract negotiations.  The repartee can be invigorating, and the opportunity to make a huge difference is immediate.  However, from time to time...a client will really catch you off guard and the results can be either frustrating...or humorous.  I was negotiating on behalf of a business client who was concerned about her interests in a business venture she owned.  She had brought in investors and executed share trade and invest agreements in return for money, and was quickly learning she ought to have hired counsel when doing those agreements.  Regardless, she was concerned she would be pushed out of the business if the group of investors "ganged" up on her and voted her out (she had not split share classes or protected her interests in this regard).  Initially, she had taken quite a hard stance...and we had pursued a vigorous "do what I say or I will buy back your shares and kick you out" type approach.  At one of our final meetings, ...
Lost in a Foreign Country -- K3 or SB1?
So I was chatting with a potential client the other day regarding an interesting problem.  He was a citizen, and his wife was a permanent resident alien (aka green card holder).  The wife had left the country several years prior to take the the offspring back to Indonesia so they could receive a "proper" education (one daughter).  You guessed it!  Violation ensues.For those of you unfamiliar with this type of case, it is a lot more common than you might think.  Green-card holders often forget that they are not permitted to leave the country for more than 6 months or risk not being permitted to re-enter.  This individual was the second person to call me on this same topic in one week -- so it seemed like a perfect blog topic.There are really only two methods for fixing this problem.  One -- apply for an SB1 visa and pray you can convince a rather surly consulate officer that your "overstaying the 6 month perio...

Service - Integrity - Results

The firm is professional and incredibly knowledgeable! They have helped so many people, clients, colleagues, and whoever asks. They are generous with their time, knowledge, and always readily willing to assist in any way they can.

Maryam Kia (Attorney), Immigration Law, 2013