BIZLAWYER.BIZ

Entrepreneurs may get Green Cards if they are Exceptional and will Benefit the U.S. National Interest

2011-10-12T15:47:00Z

The usual path to a green card based on an alien’s occupation requires a U.S. employer to petition for the alien for a green card. Before the U.S. employer can do so, it is necessary for the employer to prove that there is a shortage of U.S. workers for that job. This process is known as applying for a Labor Certification.

The exception to this rule allows aliens to petition for themselves and avoid the labor certification process, if they are exceptional in their field and they will benefit the U.S. national interest. In other words, the labor certification requirement is waived, if the alien’s occupation will benefit the national interest of the U.S.A., hence it is known as a “national interest waiver. (NIW)”

An entrepreneur can qualify if the:

Entrepreneur will be working in the sciences, arts, or business;
Entrepreneur has exceptional ability in the sciences, arts, or business; and
Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States

How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?

Entrepreneurs should discuss in their petitions, which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit. For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.

As another example, the entrepreneur could demonstrate that at least one aspect of entrepreneurial enterprise to be located in the United States. It should be noted that number of areas.

DHS Comment Request on a Proposal Impacting Certain EB-5 Applications Approved Between 1995 and 1998

2011-10-11T17:04:50Z

The Department of Homeland Security (DHS) is proposing to amend its regulations governing the employment creation (EB-5) immigrant classification. This rule only proposes requirements and procedures for special determinations on the applications and petitions of qualifying aliens whose employment-creation immigrant petitions were approved by the former Immigration and Naturalization Service (INS) after January 1, 1995 and before August 31, 1998. This rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act.

The Regulations can be found at: Federal Register Vol. 76, Number 192, October 4, 2011 modifying Federal Register Vol. 76, Number 188, September 28, 2011 from page 59927 onwards.

Anyone wishing to comment on these regulations must submit them in writing on or before November 28, 2011.

Payment in Full?

2011-08-08T18:15:21Z

Consider the following facts:

A debtor owes $50,000 to a creditor. The debtor sends a check for $30,000 and marks the check "Payment in Full."

If the creditor deposits the check, will he/she have a right to collect the remaining balance?

There is no clear answer in law. This issue falls under the concept of "Accord and Satisfaction." This is simply an agreement to accept a payment different from what the parties contract stated.

If the creditor accepts the tendered payment then it extinguishes the remaining balance and the claim is "satisfied" for the lesser amount.

However, for there to be a true Accord and Satisfaction, there must first be a dispute between the parties.

It is simply a new contract with an offer an acceptance.

In order for there to be an Accord and Satisfaction it must be clearly stated that the amount tended is in complete satisfaction of the dispute.

What happens if the creditor just strikes out the words "Payment in Full?"

In California there is a conflict because Civil Code Section 1526 says that the creditor can simply strike through the "Payment in Full" language and it will be ineffective.

On the other hand, the Commercial Code Section 3311 states that the "Payment in Full" condition is binding whether or not the creditor strikes out the language.

In the case of Directors Guild of America vs. Harmony Pictures, the court resolved the inconsistency of the two statutory sections by stating that the more recent of these enactments, mainly the commercial code would control. Accordingly, a creditor may not strike out the words "Payment in Full," cash the check, and claim the remaining balance.

If the check is cashed in error, the creditor has 90 days to remedy the error and return the money to the debtor. In that case the debt will be reinstated. The main issue is whether the parties did in fact reach an agreement of Accordance and Satisfaction.

Is Your Independent Contractor Really your Employee?

2011-04-27T21:36:00Z

In today’s business world most employers would rather classify the people, who help them achieve their objectives as independent contractors rather than employees. There are some obvious differences between employers and employees:

Employers must withhold taxes from employees while independent contractors pay their own employment taxes.
Employers have vicarious liability for the acts of their employees like car accidents caused by employees. An independent contractor's accident would not make the employer liable.
An employer must pay unemployment insurance and have Workman's Compensation Insurance for employees, but not for the independent contractors.

Get all the details at our Business Law Blog: http://www.bizlawyer.biz

Validation Instrument for Business Enterprises (VIBE)

2011-04-26T21:25:00Z

Currently, when adjudicating employment-based petitions, USCIS primarily relies on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. Petitioners often submit large amounts of paperwork as evidence of their current level of business operations. When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS issues a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition.

The Web-based Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data from an independent information provider (IIP) to validate basic information about companies or organizations petitioning to employ alien workers. Currently, the independent information provider for the VIBE program is Dun and Bradstreet (D&B. USCIS is beta-testing VIBE, and petitioners may begin seeing VIBE-related Requests for Evidence (RFEs).

VIBE Program

VIBE allows USCIS to electronically receive commercially available information from an IIP about a petitioning company or organization, including:

Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
Financial standing, including sales volume and credit standing
Number of employees, including onsite and globally
Relationships with other entities, including foreign affiliates
Status, for example whether it is a single entity, branch, subsidiary or headquarters
Ownership and legal status, such as LLC, partnership or corporation
Company executives
Date of establishment as a business entity
Current physical address

A USCIS officer will review all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators will use the information provided from VIBE to verify the petitioner’s qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioners’ financial viability. USCIS will not deny a petition based upon information from VIBE without first giving a petitioner the opportunity to respond to USCIS’s concerns. USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested. The Immigration Services Officer (ISO) will make a final decision based on the totality of the circumstances.

San Diego Business Lawyer- Beware That Your Independent Contractor is not Your Employee.

2010-04-13T22:57:00Z

1. Employers must withhold taxes from employees while independent contractors pay their own employment taxes.

2. Employers have vicarious liability for the acts of their employees like a car accidents caused by employees. An independent contractor’s accident would not make the employer liable.

3. An employer must pay unemployment insurance and have Workman’s Compensation Insurance for employees, but not for the independent contractors.

It is not enough for an employer to classify a worker as an “independent contractor.” There are different tests under federal and state law as well as case law, which determine whether a person is truly an employee despite being called an independent contractor.

There can be serious consequences for an employer whose “independent contractor” is reclassified as an employee:

1. Income Tax withholding.

If an independent contractor is reclassified as an employee, a significant liability arises out of the failure of the employer to withhold employment income taxes.

If the independent contractor is actually an employee and he/she did not pay his/her own income taxes, the employer could be required to pay the tax that should have been withheld from the payments that were made to the employee.

2. Social Security Tax. Federal Insurance Contributions Act (FICA).

This is commonly referred to social security withholdings and is required on all wages up to an annual limit. People who are correctly classified as independent contractors are responsible for their own self-employment taxes. If a worker were reclassified from contractor to employee, the business would be responsible for paying half his contributions.

This can result in back payments of 7.65% due to the authorities on all money paid to the incorrectly classified independent contractor.

3. Other tax responsibilities

These would include the federal unemployment tax and any unpaid state employment tax.

4. Workman’s Compensation Insurance.

If a contractor is reclassified to being an employee, the employer could be responsible for the contributions it should have been made to workman’s compensation. In addition, the employer will be responsible for future premium payments.

5. Health and Welfare.

In the past, an employee’s rights to these benefits have been dependent on whether the employer has had benefit plans for employees.

Under the new health care laws, the employer’s liability will be far greater.

6. Reimbursed business expenses.

Many independent contractors agree to bear their own business expenses, but there are statutory rights, which an employee has to expenses incurred during the course of employment.

7. IRS Penalty Assessments.

The amount of such penalty assessments will depend on whether the employer “deliberately” misclassified employees to independent contractors or whether there was no deliberate intent to misclassify such worker.

If the Service decides that the employer deliberately misclassified workers, it can hold the employer responsible for all employment taxes that should have been paid, including income tax and the employer’s share of FICA and unemployment taxes. What could be worse is that the IRS is not limited to getting paid from the employer; it can attach the personal assets of officers, even in a limited liability company or corporation.

Conclusion

It is important that an employer correctly classifies business workers as either employees or independent contractors at the time of hiring services.

Business Lawyer, San Diego – Loans for Businesses

2009-05-19T18:59:00Z

The government has announced that it will infuse $15 billion into the loan market for small businesses. This will make it easier for small businesses to obtain Small Business Administration (SBA) loans.

Applications for SBA guaranteed loans are made through regular banks. Certain banks specialize in SBA loans.

Besides more money being available through SBA loans, the fees involved in generating loans will be waived until the end of 2009. Furthermore, the SBA will guarantee 90% of those loans known as 7a Loans. This is up from 75%. The waiving of fees will only apply until the end of this year.

While there is more money available for SBA loans, the requirements for qualifying will not change. It will be essential to provide a detailed business plan showing how you intend to repay the loans.

San Diego Business Lawyer - Employers Must Take Care to Comply with the Employment Authorization Rules on Hiring Employees

2009-03-20T22:46:00Z

The Department of Homeland Security is serious about employers ensuring that their employees are authorized to work in the United States.

From April 3, 2009 there will be strict compliance requirements in the completion of I-9 forms and other aspects of hiring employees. The U.S. Citizenship and Immigration Service has published a 65 page booklet which explains the requirements an provides photographs of documentation establishing work authorization. This booklet is available free here.

San Diego Corporation Lawyer – Incorporating in the State of Delaware

2009-03-13T18:02:00Z

There are certain advantages to incorporating in the state of Delaware, but many of these advantages are lost to corporations that intend carrying on business in California.

You do not have to be in business in the state of Delaware to be registered there. However, if you carry on business in the State of California, you will still have to pay the usual California corporate tax, because your Delaware corporation must be registered in California.

The Corporate Franchise Tax can be as low as $60 (USD), in Delaware but if the corporation is doing business in California you still must pay the California Franchise Board.

The state of Delaware claims to be pro-business, because many business and corporate issues are decided by their Chancery Court, which reaches decisions without jury trial. The judges also concentrate on business law so they are more familiar with business issues.

It is necessary to have a registered agent in Delaware.

Other reasons to incorporate in Delaware:

Shareholders can act in writing without the need to hold meetings. People who are not shareholders may serve on the Board of Directors.

Notwithstanding the number of shareholders, one person can act as the only officer and director of the corporation. Note: In California, the same is possible if there is one shareholder.

There is no Sales or Personal Property Tax in Delaware.

If you wonder why so many banks are registered in Delaware, it is because that state has given them a wide birth on the interest rates that they may charge. So if your interest rate is sky high, you can be sure the corporation is registered in Delaware.

Before insisting on setting up a Delaware corporation, it is a good idea to refer to legal counsel to determine whether there is a real benefit for you in having a Delaware corporation doing business in California.

Welcome

2009-02-10T00:08:53Z

Welcome to my blog. Please check back soon for new entries.