The recent sluggishness of the U.S. economy has had a positive impact in immigration law. Many of our nation’s best and brightest are foreign-born professionals and entrepreneurs. They come to the United States seeking education in our world-class higher educational system or seeking to invest and participate in our economy. Many of these foreign-born graduates, professionals, and investors participate in the H-1B visa program - to the benefit of our nation’s businesses, nonprofits, educational institutions, and even our government.
The H-1B visa is available to U.S. businesses and other institutions seeking to employ foreign workers in specialty occupations requiring expertise in specialized fields. These occupations include executives, accountants, engineers, scientists, doctors, computer programmers, and others requiring a bachelor’s degree or higher or equivalent experience. Participation in the H-1B visa program is accomplished through the filing of an H-1B petition with U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security component administering the program.
At the beginning of every fiscal year, October 1, an allotment of 65,000 visas is made available to the program (the Regular Cap). An additional 20,000 visas are also made available each fiscal year to H-1B petitioners hiring foreign workers who possess a master’s degree or higher from a U.S. institution of higher education (U.S. Master’s Cap). Finally, a maximum of 6,800 visas are deducted from the 65,000 visa allotment and made available exclusively to U.S. petitioners seeking to higher Chile and Singapore nationals who are eligible for H-1B1 visas under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Petitions filed in the H-1B visa program can be filed six (6) months ahead of the beginning of the fiscal year or on April 1. Petitions filed after the cap is reached are rejected for that fiscal year.
Historically, the H-1B visa program is a competitive visa classification. Over the past decade the H-1B cap has been reached almost every year on the first days visas are available - or on April 1 for an October 1 start date. In the past USCIS used a lottery system to select which petitions where accepted under the caps. This system was costly and unpredictable. U.S. businesses that undertook the expenses of preparing petitions under the H-1B visa program stood to lose their investment, and the future productivity of this worker, due to simple chance.
The recession and economic contraction of the past year or so has lessened demand for these visas. Last year, the H-1B cap was not reached for fiscal year 2010 until December 22, 2009 - almost three (3) months after the beginning of fiscal year 2010.
This year, fiscal year 2011, USCIS has received 26,000 H-1B petitions under Regular Cap and 11,300 H-1B petitions under the U.S. Master’s Cap as of July 23, 2010. This leaves approximately 46,700 H-1B visas available to H-1B petitioners seeking to hire foreign workers for an October 1 start-date. The availability of these visas for the foreseeable future allows U.S. businesses, nonprofits, and other institutions to benefit from the productivity, drive and ingenuity many foreign professionals, and graduates of U.S. universities, possess and contribute to their employers. U.S. businesses can plan their hiring carefully without fear of losing their potential hire to a roll of the dice.
If you or your business has been waiting to participate in the H-1B program, now is the time. If you would like additional information regarding participation in the H-1B program or to schedule a meeting, please contact the Wiggin & Nourie, PA Immigration Department.
Wednesday, July 28, 2010
Tuesday, April 13, 2010
Lesser-Known Aspects of Health Care Reform
With a law spanning thousands of pages, it is no surprise there are components to health care reform receiving little attention. Here are a few:
* Small businesses with fewer than 25 full-time employees may be eligible for tax credits to purchase health insurance for their employees if the employer's workers have average wages of less than $50,000.
* Beginning January 1, 2011, nonprescription drugs cannot be reimbursed tax-free through a health savings account (HSA) for flexible spending account (FSA).
* Employers must provide an unpaid breastfeeding break for nursing mothers. Employers with 50 or more employees must provide a nursing location other than a bathroom that is shielded from view and free from intrusion by co-workers and the public.
* Employers will be able to offer employees rewards of up to 30% of the value of coverage for participating in wellness programs and meeting certain health-related standards, but this provision will not become effective until 2014.
* Effective January 1, 2011, employers must report the value of employer-provided health coverage on each employee's W-2 form.
* Small businesses with fewer than 25 full-time employees may be eligible for tax credits to purchase health insurance for their employees if the employer's workers have average wages of less than $50,000.
* Beginning January 1, 2011, nonprescription drugs cannot be reimbursed tax-free through a health savings account (HSA) for flexible spending account (FSA).
* Employers must provide an unpaid breastfeeding break for nursing mothers. Employers with 50 or more employees must provide a nursing location other than a bathroom that is shielded from view and free from intrusion by co-workers and the public.
* Employers will be able to offer employees rewards of up to 30% of the value of coverage for participating in wellness programs and meeting certain health-related standards, but this provision will not become effective until 2014.
* Effective January 1, 2011, employers must report the value of employer-provided health coverage on each employee's W-2 form.
Friday, March 5, 2010
Is LegalZoom Legal?
Irrespective of whether the courts ultimately rule that LegalZoom is engaging in the unauthorized practice of law or not, there is an inherent problem with using LegalZoom or any other do-it-yourself approach to estate planning. As estate planners, we may begin the drafting of a plan with templates, it would be inefficient not to do so. However, at Wiggin & Nourie, the templates we use are the product of decades of varied legal experience and opinion. The templates are constantly updated to ensure that they remain technically correct. Further, there are dozens of templates and a great deal of care is taken in selecting which template to use to lay the groundwork for any client's plan. Once selected, the template is carefully tailored to a client's specifications and the content of the document is explained in detail to the client. Moreover, our client conferences provide us with the ability to develop a relationship with clients and an opportunity to extract information surrounding client finances, goals and family dynamics that are relevant to the drafting process. Finally, once a plan is executed, we ensure that it is safely stored and we continue to follow-up with the client for years to come to ensure that trust funding issues are attended to and that technical modifications and updates continue to be made as necessary. In short, there is a human and professional component to estate planning that should not be discounted.
I think that people generally have a tendency to underestimate the work that goes into the preparation of an estate plan, it requires a great deal more than simply printing off forms. LegalZoom and other such services reinforce the opinion that estate planning may easily be accomplished by generating simple forms, but if you are considering the use of such services, you should look closely at the service provider's disclaimer. You will likely see, as in the case of LegalZoom, that the service provider is not serving as your attorney, does not review the documents you prepare for legal sufficiency and does not guarantee that the documents are correct. Preparing estate planning documents without the benefit of a legal opinion may result in unintended consequences that may be costly to correct in the future. In my experience, the vast majority of clients engage in estate planning to gain a sense of reassurance that their family will be cared for after their death in the manner that the client thinks is most appropriate, to pay for documents to be prepared without receiving the benefit of legal advice may undermine the entire purpose of the planning in the first place.
http://www.abajournal.com/news/article/suit_claims_legalzooms_document_prep_is_unauthorized_practice
I think that people generally have a tendency to underestimate the work that goes into the preparation of an estate plan, it requires a great deal more than simply printing off forms. LegalZoom and other such services reinforce the opinion that estate planning may easily be accomplished by generating simple forms, but if you are considering the use of such services, you should look closely at the service provider's disclaimer. You will likely see, as in the case of LegalZoom, that the service provider is not serving as your attorney, does not review the documents you prepare for legal sufficiency and does not guarantee that the documents are correct. Preparing estate planning documents without the benefit of a legal opinion may result in unintended consequences that may be costly to correct in the future. In my experience, the vast majority of clients engage in estate planning to gain a sense of reassurance that their family will be cared for after their death in the manner that the client thinks is most appropriate, to pay for documents to be prepared without receiving the benefit of legal advice may undermine the entire purpose of the planning in the first place.
http://www.abajournal.com/news/article/suit_claims_legalzooms_document_prep_is_unauthorized_practice
Tuesday, August 4, 2009
US Tax Court rejects IRS position on deducting losses in LLC's
LLCs, LLPs, and tenancies-in-common should be aware of this US Tax Court decision:
In a recent Tax Court case, the IRS asserted that interests in LLCs, LLPs, and tenancies-in-common were limited partnership interests, thereby disallowing losses to the individual owners generated by passive investments. However, the Tax Court determined that the ownership interests were not the same as limited partners and that the losses were therefore fully deductible.
The IRS argued that the Petitioners' interests in the tavpayers' various companies should be considered as limited partners in limited partnerships, which then presupposes that the subject interests' income is generated from passive activities. Underlying the IRS position was inability of the subject interests to control the parent entities, and the limited liability the interests received in exchange for the lack of control. The holding companies were disregarded by the IRS.
The taxpayers argued that § 469(h)(2) was not applicable because none of the companies in which they owned interests were limited partnerships and because the subject interests were general partner interests rather than limited partner interests.
The Court disagreed with the IRS position and cited the legislative history of the regulations in finding that that although Congress considered limited liability in the enabling legislation, limited liability was not the only determinative factor.
Further, Congress believed that statutory restriction on a limited partner's ability to manage the business meant the limited partner did not materially participate. The Tax Court believed such logic did not apply to the taxpayers' interests in this case, as their interests were not restricted statutorily from participation in company management. Accordingly, the Tax Court ruled the taxpayers' interests were general partners' interests within the meaning of the regulations. Therefore the losses generated by the interests were allowed by the Tax Court.
Paul D. Garnett and Alicia Garnett v. Commissioner, 132 T.C. No. 19, Docket No. 9898-06, June 30, 2009.
In a recent Tax Court case, the IRS asserted that interests in LLCs, LLPs, and tenancies-in-common were limited partnership interests, thereby disallowing losses to the individual owners generated by passive investments. However, the Tax Court determined that the ownership interests were not the same as limited partners and that the losses were therefore fully deductible.
The IRS argued that the Petitioners' interests in the tavpayers' various companies should be considered as limited partners in limited partnerships, which then presupposes that the subject interests' income is generated from passive activities. Underlying the IRS position was inability of the subject interests to control the parent entities, and the limited liability the interests received in exchange for the lack of control. The holding companies were disregarded by the IRS.
The taxpayers argued that § 469(h)(2) was not applicable because none of the companies in which they owned interests were limited partnerships and because the subject interests were general partner interests rather than limited partner interests.
The Court disagreed with the IRS position and cited the legislative history of the regulations in finding that that although Congress considered limited liability in the enabling legislation, limited liability was not the only determinative factor.
Further, Congress believed that statutory restriction on a limited partner's ability to manage the business meant the limited partner did not materially participate. The Tax Court believed such logic did not apply to the taxpayers' interests in this case, as their interests were not restricted statutorily from participation in company management. Accordingly, the Tax Court ruled the taxpayers' interests were general partners' interests within the meaning of the regulations. Therefore the losses generated by the interests were allowed by the Tax Court.
Paul D. Garnett and Alicia Garnett v. Commissioner, 132 T.C. No. 19, Docket No. 9898-06, June 30, 2009.
Wednesday, July 8, 2009
I-9 enforcement inspections
Immigration Customs and Enforcement (ICE) has just announced a new initiative whereby it will conduct I-9 enforcement inspections at 652 companies nationwide. It is important that companies conduct inhouse I-9 audits in order to ensure compliance with all I-9 regulations. If you would like assistance in this matter or have questions regarding I-9 compliance and/or employer sanctions, call our immigration department: 603-669-2211.
www.wiggin-nourie.com/pdfs/ICE I-9.pdf
www.wiggin-nourie.com/pdfs/ICE I-9.pdf
“What part of illegal don’t you understand?”
That was a theme running through many of the letters and emails our office received, as well as in posts on various blogs, four years ago when we successfully defended clients charged with criminal trespass. Why criminal trespass? The cases arose when the Chiefs of Police in Hudson and New Ipswich, New Hampshire arrested and charged our clients because they did not have valid immigration status.
http://www.hispanic5.com/town_uses_trespas_law_to_fight_undocumented_immigrants.htm
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf
First, the part I do understand…
I understand that it is illegal for a non-citizen to enter the country without inspection; specifically, it is a class B misdemeanor or a “petty offense” as defined under federal immigration law and criminal law. This criminal provision of the law is, in my experience, seldom used except at the border. Rather, the cases are most often handled as civil matters. Most people who enter the United States without inspection and are later caught by Immigration & Customs Enforcement Officers are not charged with a crime – they are charged as being deportable from the United States. They go to a specialized administrative court called the Immigration Court, which is part of the Department of Justice.
Now here’s the part I don’t get…
With a very few exceptions, people who have lived here for decades get basically the same deal as those who illegally crossed the border last week. The petty offender gets nearly the same treatment as the very dangerous criminal – and that treatment is deportation. This is a problem. Why? You might ask. If they all broke the law they should be treated equally and get the same punishment right?
Wrong.
The United States has a “destroy the village to save the village” strategy when it comes to immigration policy. When we deport someone who has been here 10, 15, or even 20 plus years – that person often has a home, a business or a strong work history, and a family. So what is the result? It can often be a fire sale of the family home, a business closure or an employer who loses productivity while training a new worker, and U.S. born children that end up on public assistance or in foster care. For a class B misdemeanor? This is not smart public policy; it is self-defeating and unnecessary.
We have the right as a country to limit immigration levels and to secure our borders. However, that we have the right to deport persons from our soil if we wish does not mean that we should always do so. The United States needs some alternative remedies for dealing with immigration law violations. Alternatives that are not so destructive to the economy and the society that (through our laws) we claim to be trying to preserve.
In the 1990’s there was a program that allowed illegal immigrants to become legal residents if they had a U.S. citizen spouse or a U.S. employer to petition for them. They had to be otherwise admissible (meaning no serious criminal record, no communicable diseases, not likely to use public benefits, and no prior deportations, etc…) and they had to pay a $1,000.00 fine on top of the usual fees (over a thousand dollars each) the government charges immigrants to process their paperwork. That is called paying a fine for breaking the law; that is not amnesty -- unless you consider it an act of amnesty when you pay a speeding ticket.
Legalization of those immigrants who are not a danger to the public and who have family and employment ties to the United States would bring thousands of dollars per capita in fees to the U.S. Treasury ($24 billion perhaps). Investigating, detaining, trying and deporting a far smaller number of these same people each year costs the tax payers millions of dollars. There is no logic to inflicting emotional and financial damage on families and communities and to emptying the Treasury on account of the vast majority of illegal immigrants who are not terrorists or hardened criminals or otherwise undesirable. So why do we continue this way? It is time to change our approach.
“FAIR and Unbalanced”
There is more at work in America’s immigration policy debate than the simple logic of law enforcement. There is a coordinated attempt to blame immigrants for most, if not all, of society’s ills and to dehumanize them and make them objects of hatred and derision. I don’t just mean the talk radio and television pundits. Their constant drumbeat of negative stereotyping, name calling and scapegoating is an important part of driving any rational debate into the ditch. However, there is another more insidious factor at play.
You might remember hearing about how the cigarette companies used to commission their own studies from their own laboratories staffed by scientists and doctors on the company payroll. What a surprise it was that they concluded that cigarettes were safe and nicotine was not addictive. It’s kind of the same with anti-immigrant research. When Lou Dobbs, Pat Buchanan or Sean Hannity needs an anti-immigrant study, report or poll to quote they can turn to several organizations for back up such as the Federation for American Immigration Reform (FAIR), the Center for Immigration Studies, or NumbersUSA.
The problem is (according to the Southern Poverty Law Center) all of these organizations owe their existence to one very rich and very racist man named John Tanton. Check this SPLC link to find out more about Tanton and his organizations.
http://www.splcenter.org/intel/intelreport/article.jsp?aid=981
It took a long time to get past the propaganda machine that cigarette money built. I hope it doesn’t take as long for people to realize that much of the complaining and pot stirring about illegal immigration is being bought and paid for by a small number of wealthy cranks. Here’s another name to be aware of - Frosty Wooldridge (notice who he is talking up in his online article?):
http://www.borderfirereport.net/frosty-wooldridge/actions-you-can-take-to-save-america-from-mass-immigration.php
Unfortunately, when people with power, money and a media platform start broadcasting messages of fear and hate it can have some really horrible effects downstream when the not so rich and powerful take up the cause in violent ways. Scott Roeder’s “alleged” murder of abortion providing physician George Tiller and James Von Brunn’s “alleged” recent murder of security guard Stephen T. Johns at the Holocaust Museum in Washington, DC are the most publicized episodes of right wing domestic terrorism by mentally unbalanced individuals.
Here are links to some stories that discuss, if not acts of domestic terrorism, certainly crimes motivated by hate and fear of immigrants. These appear to be crimes committed to send the message that immigrants (and Latinos in particular) are not welcome in the United States. The seed of that message germinates in groups like John Tanton’s; it is spread on a cultivated field by hate spouting media and it flowers in acts of violence.
http://heraldnet.com/article/20090613/NEWS01/706139922#Activist.Shawna.Forde.charged.in.double.slaying
http://www.philly.com/inquirer/front_page/20090615_Attacks_on_Mexican_immigrants_often_go_unreported.html
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/16/AR2009061603518.html
http://www.hispanic5.com/town_uses_trespas_law_to_fight_undocumented_immigrants.htm
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf
First, the part I do understand…
I understand that it is illegal for a non-citizen to enter the country without inspection; specifically, it is a class B misdemeanor or a “petty offense” as defined under federal immigration law and criminal law. This criminal provision of the law is, in my experience, seldom used except at the border. Rather, the cases are most often handled as civil matters. Most people who enter the United States without inspection and are later caught by Immigration & Customs Enforcement Officers are not charged with a crime – they are charged as being deportable from the United States. They go to a specialized administrative court called the Immigration Court, which is part of the Department of Justice.
Now here’s the part I don’t get…
With a very few exceptions, people who have lived here for decades get basically the same deal as those who illegally crossed the border last week. The petty offender gets nearly the same treatment as the very dangerous criminal – and that treatment is deportation. This is a problem. Why? You might ask. If they all broke the law they should be treated equally and get the same punishment right?
Wrong.
The United States has a “destroy the village to save the village” strategy when it comes to immigration policy. When we deport someone who has been here 10, 15, or even 20 plus years – that person often has a home, a business or a strong work history, and a family. So what is the result? It can often be a fire sale of the family home, a business closure or an employer who loses productivity while training a new worker, and U.S. born children that end up on public assistance or in foster care. For a class B misdemeanor? This is not smart public policy; it is self-defeating and unnecessary.
We have the right as a country to limit immigration levels and to secure our borders. However, that we have the right to deport persons from our soil if we wish does not mean that we should always do so. The United States needs some alternative remedies for dealing with immigration law violations. Alternatives that are not so destructive to the economy and the society that (through our laws) we claim to be trying to preserve.
In the 1990’s there was a program that allowed illegal immigrants to become legal residents if they had a U.S. citizen spouse or a U.S. employer to petition for them. They had to be otherwise admissible (meaning no serious criminal record, no communicable diseases, not likely to use public benefits, and no prior deportations, etc…) and they had to pay a $1,000.00 fine on top of the usual fees (over a thousand dollars each) the government charges immigrants to process their paperwork. That is called paying a fine for breaking the law; that is not amnesty -- unless you consider it an act of amnesty when you pay a speeding ticket.
Legalization of those immigrants who are not a danger to the public and who have family and employment ties to the United States would bring thousands of dollars per capita in fees to the U.S. Treasury ($24 billion perhaps). Investigating, detaining, trying and deporting a far smaller number of these same people each year costs the tax payers millions of dollars. There is no logic to inflicting emotional and financial damage on families and communities and to emptying the Treasury on account of the vast majority of illegal immigrants who are not terrorists or hardened criminals or otherwise undesirable. So why do we continue this way? It is time to change our approach.
“FAIR and Unbalanced”
There is more at work in America’s immigration policy debate than the simple logic of law enforcement. There is a coordinated attempt to blame immigrants for most, if not all, of society’s ills and to dehumanize them and make them objects of hatred and derision. I don’t just mean the talk radio and television pundits. Their constant drumbeat of negative stereotyping, name calling and scapegoating is an important part of driving any rational debate into the ditch. However, there is another more insidious factor at play.
You might remember hearing about how the cigarette companies used to commission their own studies from their own laboratories staffed by scientists and doctors on the company payroll. What a surprise it was that they concluded that cigarettes were safe and nicotine was not addictive. It’s kind of the same with anti-immigrant research. When Lou Dobbs, Pat Buchanan or Sean Hannity needs an anti-immigrant study, report or poll to quote they can turn to several organizations for back up such as the Federation for American Immigration Reform (FAIR), the Center for Immigration Studies, or NumbersUSA.
The problem is (according to the Southern Poverty Law Center) all of these organizations owe their existence to one very rich and very racist man named John Tanton. Check this SPLC link to find out more about Tanton and his organizations.
http://www.splcenter.org/intel/intelreport/article.jsp?aid=981
It took a long time to get past the propaganda machine that cigarette money built. I hope it doesn’t take as long for people to realize that much of the complaining and pot stirring about illegal immigration is being bought and paid for by a small number of wealthy cranks. Here’s another name to be aware of - Frosty Wooldridge (notice who he is talking up in his online article?):
http://www.borderfirereport.net/frosty-wooldridge/actions-you-can-take-to-save-america-from-mass-immigration.php
Unfortunately, when people with power, money and a media platform start broadcasting messages of fear and hate it can have some really horrible effects downstream when the not so rich and powerful take up the cause in violent ways. Scott Roeder’s “alleged” murder of abortion providing physician George Tiller and James Von Brunn’s “alleged” recent murder of security guard Stephen T. Johns at the Holocaust Museum in Washington, DC are the most publicized episodes of right wing domestic terrorism by mentally unbalanced individuals.
Here are links to some stories that discuss, if not acts of domestic terrorism, certainly crimes motivated by hate and fear of immigrants. These appear to be crimes committed to send the message that immigrants (and Latinos in particular) are not welcome in the United States. The seed of that message germinates in groups like John Tanton’s; it is spread on a cultivated field by hate spouting media and it flowers in acts of violence.
http://heraldnet.com/article/20090613/NEWS01/706139922#Activist.Shawna.Forde.charged.in.double.slaying
http://www.philly.com/inquirer/front_page/20090615_Attacks_on_Mexican_immigrants_often_go_unreported.html
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/16/AR2009061603518.html
Tuesday, July 7, 2009
Comprehensive Immigration Reform
Is there a chance for Comprehensive Immigration Reform this year? The list of proponents is growing.
Response to immigration a 'test of our humanity,' Archbishop Chaput says at forum
http://www.catholicnewsagency.com/new.php?n=16275
Colin Powell on Comprehensive Immigration Reform
http://www.carnegie.org/reporter/18/backpage/index.html
Texas Police Chief Says Immigration Reform needed to help fight crime
http://www.postandcourier.com/news/2009/jun/12/zumalt_joins_call_reform85721/
Response to immigration a 'test of our humanity,' Archbishop Chaput says at forum
http://www.catholicnewsagency.com/new.php?n=16275
Colin Powell on Comprehensive Immigration Reform
http://www.carnegie.org/reporter/18/backpage/index.html
Texas Police Chief Says Immigration Reform needed to help fight crime
http://www.postandcourier.com/news/2009/jun/12/zumalt_joins_call_reform85721/
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