One way to get a green card is through family sponsorship. There are 5 main categories of family-based adjustment of status and some subcategories.
As with any of these categories, there are specific limits to how many can be issued per year. And there are specific backlogs for each category and for aliens from certain countries. To see how long the backlog is for each category, you can see the current Department of State Processing times at https://egov.uscis.gov/cris/processTimesDisplayInit.do. The Department of State Bulletin can be found here: http://travel.state.gov/visa/bulletin/bulletin_1360.html.
Immediate relatives of U.S. citizens are given special preferential treatment. They are allowed to immigrate in unlimited numbers as there is no limit set per year for these relatives. Since there is no limit on this category, there is no backlog and thus this category does not appear on the Department of State Bulletin. The following are immediate relatives:
Spouses of U.S. Citizens
Children (unmarried and under 21) of U.S. Citizens
Parents of U.S Citizens
There are no derivative beneficiaries of immediate relatives. This means that a separate petition must be filed for each person in this category. In other words if a U.S. Citizen files for her parents, her brother cannot be included in their petitions.
Since there is no wait here, if the relative is already in the country, then most likely they can be sponsored without having to leave, but an attorney should be consulted.
All the other categories after immediate relatives have a certain limit per year, per country and the backlog can be checked in the Department of State Bulletin. Also, all the other categories (except for immediate relatives) do cover derivative beneficiaries (this will be discussed below).
The first preference category covers Unmarried and Over 21 Sons and Daughters of U.S. Citizens. The son or daughter needs to be unmarried at the time of filing, admission into the U.S. If they get married before admission, their application will fall under the 3rd preference category (below).
This category allows a green card holder to file for family. There are 2 subcategories here. Note, that green card holders cannot file for their parents. This benefit is only allowed for U.S. Citizens.
This subcategory covers Spouses or Children (Unmarried and Under 21) of Permanent Residents.
Note, that if the Permanent Resident becomes a U.S. Citizen, then the relative becomes an immediate relative, assuming they still meet the requirements of that category.
This subcategory covers Unmarried and Over 21 Sons and Daughters of Permanent Residents.
Note, that if the Permanent Resident becomes a U.S. Citizen, then the relative falls into the first preference category, assuming they still meet the requirements of that category.
This category covers Married Sons or Daughters of U.S. Citizens. If they are unmarried, they are in the 1st preference category (above).
This category covers brothers and sisters (over 18) of U.S. Citizens.
There are many additional issues in family-based adjustment of status, which may apply to a case, and an attorney definitely should be consulted. These issues include:
The Child Status Protection Act (which freezes age before a relative reaches 21 for a certain amount of time
Death of the Petitioner
Battered Spouse or Child
Note, very importantly, filing addresses have recently changed for most of the applications for this type of case.
One way to get a green card is through employment. There are 5 main categories of employment-based adjustment of status (EB-1 through EB-5) and some subcategories. We will go through these this week.
A with any of these categories, there are specific limits to how many can be issued per year. And there are specific backlogs for each category and for aliens from certain countries. To see how long the backlog is for each category, you can see the current Department of State Processing times at: www.attorneyrehan.com/links.htm.
EB-1: Priority Workers
The first employment based category is called Priority Workers. This group has 3 subcategories: 1)Aliens of extraordinary ability, 2)Outstanding professors or researchers, and 3)International managers and executives.
The main thing to remember about this category is that there is no labor certification requirement. So, it does not take as much time to process this type of case compared to a labor certification case.
Aliens of Extraordinary Ability
This subcategory requires the applicant to have extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer or employer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the US. Extraordinary ability is defined as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.” There are about 10 types of evidence that can show a person has extraordinary ability. If you believe you may qualify for this category, you can contact our office.
Outstanding Researcher or Professor
This subcategory requires at least 3 years of research or teaching in the field and an offer of employment, along with international recognition in the field. Again as all the subcategories of EB-1, no labor certification is required.
International Managers and Executives
The alien must have worked for the sponsoring employer for at least 1 year out of the last 3 years in an executive or managerial position. Also, the US branch sponsor must have been in operation for at least one year. This category is very similar to the L-1 visa and is often used to get an L-1 visa holder a green card.
EB2: Aliens of Exceptional Ability or Advanced Degree Holders
For this category, usually a labor certification is required, though in some cases a national interest waiver is available.
Alien of Exceptional Ability
The key here is to show that the alien possesses a level of expertise above average in the field of arts (includes athletics), science, or business. There are 6 main types of evidence that can be used to show you qualify. If you believe you qualify, please call our office.
Advanced Degree Holder
The profession needs to be one in which a bachelor’s degree is the minimum requirement and the alien must have a degree above a bachelor’s degree in the field. You can substitute experience for the degree.
This category has 3 subcategories: 1)Professionals with a bachelor’s degree, 2)Skilled workers, 3)Other workers. This category requires an approved labor certification and a job offer.
Professionals who hold a Bachelor’s Degree
This subcategory is available only to those who hold a US bachelor’s degree or its foreign equivalent. Unlike the H-1B nonimmigrant category, one is not able to substitution education with experience. A profession is a field which requires at a minimum a bachelor’s degree for entry. There is no requirement that the bachelor’s degree be in the field of offered employment.
For a person to qualify as a skilled worker, the position offered must require at least two years training and experience. The alien must possess the required background, but simply because the alien has two years of training and experience, does not make it a skilled position if it does not otherwise require two years of training and experience.
This category covers “unskilled labor,” defined as work that takes less than two years training or experience to perform. Because there is an annual limit of 10,000 visas in this subcategory, regardless of how many are available in the entire EB-3 category, there are extreme backlogs in visa numbers for this category.
EB-4: Special Immigrants
This category includes religious workers, certain employees of the US government abroad, and widows and widowers of US citizens.
EB-5: Immigrant Investors
Alien entrepreneurs whose new business will directly create 10 or more new jobs in the U.S. and invest approximately 1 million dollars can apply in this category. If the investment is made in a “targeted employment area” the amount can be half a million dollars.
The following visas are temporary and do not entitle the person to remain in the U.S. permanently nor does it provide the person with a green card. A person has to go through other means to get permanent residence (such as labor certification, etc.). We handle all types of non-immigrant visas, some of these are listed below.
There are two types of E Visas: the E-1 and the E-2. The main thing here is that you must be from a country, which has a treaty with the U.S. Countries like Pakistan and Bangladesh have one (Bangladesh only has one with respect to E-2 visas). India does not have this type of treaty with the U.S. These visas allow you to remain in the U.S. temporarily for two years and can be extended for two years each time.
The E-1 visa requires the alien to come to the U.S. solely to engage in trade of a substantial nature principally between the United States and the alien’s country of nationality.
The E-2 visa requires the alien to come to the United States solely to direct and develop the operations of an enterprise in which he or she has invested a substantial amount of money.
The alien will direct or develop the enterprise and must demonstrate that he or she controls the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other means.
The question often comes up here, what is substantial” enough? There is no real amount that the INS/CIS has given here but there are factors that the CIS takes into account. If you are interested in this type of visa, please call our office.
Dependents (i.e. spouses and unmarried children under 21 years of age) of E investors/traders get status also. Spouses of E investors/traders can get work authorization.
L Intercompany Visa
The main thing for an L visa is there must be a company outside of the U.S. that the alien has worked for at least one year in the past three years. L-1 category applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers come to the U.S. as intracompany transferees who are coming temporarily to perform services either: 1)in a managerial or executive capacity (L-1A) or 2)a position which requires specialized knowledge (L-1B)
Dependents (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status. Spouses of L-1 workers can get work authorization.
These visas allow you to remain in the U.S. temporarily usually for three years (unless you are coming to open a new office in the U.S.-initial term is one year) and can be extended for a second 3-year period.
H-1B Work Visa
The H-1B is a work visa for an alien who will be employed temporarily in a specialty occupation or as a distinguished fashion model.
The worker must be employed in a specialty occupation, which is defined as a job that requires application of specialized knowledge and at least the equivalent of a 4-year degree. Examples of specialty occupations are: architects, engineers, scientists, attorneys, etc.
The applicant for this visa must show 1)they possess such qualifications, as stated above, 2)the job is a specialty occupation, and 3)the employer has a need for such a position. The applicant does not have to show that there are no qualified U.S. workers. That is required in a labor certification not an H-1B application. However, there are other representations made to the Department of Labor including paying the prevailing wage.
These visas allow you to remain in the U.S. temporarily for three years and can be extended for a second 3-year period (after that you can apply for one year extensions if certain requirements are met).
Dependents (i.e. spouses and unmarried children under 21 years of age) of H-1b workers are entitled to H-4 status. Dependents are not eligible for work authorization. There are other H visas but they each have separate requirements.
If you have been arrested and/or are facing removal proceedings by U.S. Customs and Enforcement (ICE), there are various forms of relief that may help you remain in the U.S.
One form of relief available to those facing removal proceedings is cancellation of removal. You may be eligible for cancellation of removal if satisfy the following requirements:
1. Permanent resident (green card) for at least 5 years, and 2. Lived in the U.S. continuously for 7 years after having been admitted to the U.S., and 3. No aggravated felony conviction(s)
You may be eligible for cancellation of removal even if you never had a green card if:
1. You have been physically present in the U.S. for 10 years, and 2. You have maintained good moral character during that time, and 3. Your deportation would cause ‘exceptional and extremely unusual’ hardship to your U.S. citizen or lawful permanent resident spouse, parent or child
Most criminal convictions would render you ineligible for this relief because you cannot demonstrate good moral character.
There are a couple waivers available to those facing removal proceedings. Under the section 212(c) waiver, if you pled guilty to a crime before April 24, 1996, your criminal conviction may be waived. In order to qualify you must satisfy the following:
1. Permanent resident (green card), and 2. Lived in the U.S. lawfully for 7 years, and 3. Not served 5 years or more in prison for an aggravated felony
Another waiver available is the section 212(h) waiver. This waiver excuses you for certain crimes if you can prove that removal from the U.S. would cause extreme hardship to a U.S. citizen or permanent resident spouse, child or parent.
Some other forms of relief include asylum, withholding of removal, and the Convention Against Torture. You may be eligible to apply for asylum if you fear harm in your country because of your race, religion, nationality, actual or suspected political opinion, or membership in a social group. Withholding of Removal may be available to you if you can show your freedom or life would be threatened due to your race, religion, nationality, political opinion or membership in a particular group. Finally, you may be eligible for relief under the Convention Against Torture if you fear that you will be tortured if you return to your country.
Adjustment of Status is another form of relief available to those who satisfy one of the following:
1. Married a U.S. citizen, or 2. Have a U.S. citizen child over 21 years of age, or 3. Have a U.S. citizen parent
However, you may be ineligible to adjust status if you were convicted of a crime of moral turpitude, a drug crime, or two crimes where you received a sentence of 5 years or more.
Most employers will never file a visa application for a worker. But the mistake many business owners make is assuming that no foreign employees means no need to worry about immigration laws. Under Immigration Reform and Control Act of 1986 (“IRCA”). Those provisions made every employer in the country a deputy of US Immigration and Customs Enforcement. Employers are required under that law to verify the identity and work authorization status of every employee of the business. The mechanism for compliance is the I-9 Employment Verification Form that every worker must complete on the day of hire or earlier. Failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company. But despite the focus on immigration in the news, a large number of companies fail to comply with IRCA’s I-9 rules.
The I-9 process must start on the day an employee starts work. The employee must complete the first section of the I-9 form and must provide the supporting documents noted above within three days of the date of hire.
What is an I-9 Form?
The I-9 is a one page form employees complete verifying their identity as well as proving they are allowed to work in the United States. The form itself has three parts. Section 1 includes basic biographical information on the employee and also asks the employee to certify that he or she is a citizen, permanent resident or authorized to work under another status. The second section is completed by an employer who must verify what documents an employee presented to prove their identity and right to work and that the paperwork was completed in a timely manner. The third section is reserved for employers who must periodically update the I-9 Form if the worker is not authorized to permanently work in the US.
What documentation must an employee present along with an I-9 Form?
Employees must present documentation of identity and work authorization and can present documents from a pre-set list included in the I-9 Form’s instructions. Some documents, like a US passport or a permanent residency card, can prove both identity and that one is legal to work. Some documents, like a driver’s license, prove identity only and some documents, like a social security card (other than a card stating it is not valid for employment) prove work eligibility. Employers are not allowed to tell employees which documents from the pre-set list they must present. Occasionally, an employee is authorized to work, but they have not been issued a document on the list. In such a case, an immigration lawyer may be able to provide a legal memorandum for an employer documenting the authorization to work and that will normally insulate an employer from liability. In some of these cases, the worker is entitled to 90 days to get the documentation to the employer though there are occasional cases where more time is permitted.
Who must complete an I-9 Form?
IRCA requires all employers to have all employees hired after 1986 complete I-9 verification paperwork. Workers who are not hired do not need to complete I-9 Forms and employers who selectively choose who will and will not complete I-9s could face penalties under anti-discrimination rules. Volunteers are not subject to I-9 rules since they receive no “remuneration” for their services. Independent contractors are also not subject to the I-9 rules, but employers should note that if they contract work to companies they know use unauthorized workers, they could be held liable as well under IRCA. Persons transferring within a company are not required to complete an I-9 form, but the easiest practice is usually to complete a new I-9 anyway rather than having to document the I-9 was done previously. Employees rehired by a company need not complete a new I-9 as long as they resume work within three years of completing the initial form I-9. Also, it is not necessary to complete a new I-9 after:
an employee completes paid or unpaid leave (such as for illness or a vacation),
a temporary lay-off,
a strike or labor dispute,
gaps between seasonal employee
When must the I-9 Form be completed?
The I-9 process must start on the day an employee starts work. The employee must complete the first section of the I-9 form and must provide the supporting documents noted above within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together). While it is possible to require people to complete the I-9 form before the first day of employment, many immigration lawyers caution against this because the form does elicit information about one’s national origin and a decision not to hire a worker could trigger a discrimination claim.
To the extent an employer chooses to have I-9s completed before the date of hire, they should only be requested after a position has been offered and accepted and there should be a uniform policy applicable to all employees receiving an offer of employment having to complete the I-9 ahead of time.
Can an I-9 Form be completed electronically?
In October 2004, legislation was enacted that allows for the I-9 to be completed, signed and stored on a computer. In June 2006, regulations were issued implementing the new statute. The new rules sets standards for completing forms electronically and also for the scanning and storage of existing I-9 forms.
What are the I-9 recordkeeping requirements?
Employers must keep I-9 Forms for all current employees. For terminated employees, the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.
Retaining copies of the supporting documents is voluntary, however. Employers can retain copies of documents and attach them to the completed I-9 Form. Immigration lawyers disagree over whether employers should or should not retain copies of supporting documents. Certainly maintaining documentation could provide a good faith defense for an employer in showing that it had reason to believe a worker was authorized even if the paperwork was not properly completed. IRCA compliance officers may also be suspicious of employers that don’t keep copies of documents. Of course, keeping documents also leaves a paper trail. Whatever a company decides, however, it is important that the policy be consistently applied. Keep all the documents or keep none of them.
What are the I-9 re-verification requirements?
If an employee is not a US citizen or lawful permanent resident, they are likely working based on a status with a defined end date. For these employees, the employer must note the expiration of their documents on the I-9 Form and then must pull their I-9 Form before the expiration date and re-verify that the worker’s status has been extended. Employers need to establish a reliable tickler systems to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.
How do mergers, acquisitions and other major changes affect I-9 requirements?
While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed I-9s for an acquired company invalid. If the acquiring company does not assume all of the assets and liabilities, then the I-9s will likely not transfer. In a merger case where the acquiring entity is a successor in interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure that the acquired I-9s are in good shape. Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand. In any case, an immigration lawyer should be consulted in any merger, acquisition or divestiture to ensure that the transaction does not result in new immigration problems.
What are the IRCA anti-discrimination and document abuse rules?
While employers need to be diligent about complying with IRCA’s employment verification rules, they should not be so overzealous that they end up penalizing qualified workers. IRCA also has anti-discrimination rules that can result in an employer facing stiff sanctions. Employers of more than three employees are covered by the IRCA anti-discrimination rules (as opposed to the 15 or more employees required by Title VII of the Civil Rights Act). IRCA protects most US citizens, permanent residents, temporary residents or asylee/refugee from discrimination on the basis of national origin or citizenship status if the person is authorized to work. Aliens illegally in the US are not protected.
Under IRCA, employers may not refuse to hire someone because of their national origin or citizenship status and they may not discharge workers on those grounds either. The employer is also barred from requesting specific documents in completing an I-9 Form and cannot refuse to accept documents that appear genuine on their face. But note that an employer must be shown to have had the intent to discriminate.
Employers can separately be sanctioned based on legislation passed in 1990 if they request more or different documents than required by the I-9 rules. Employers originally were held strictly liable for violations under this category, but in 1996 legislation was passed requiring a showing that employers intended to discriminate.
What penalties does an employer face for I-9 violations?
Employers can face stiff penalties for IRCA violations that include substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation. Employers can also be barred from competing for government contracts for a year if they knowingly hire or continue to employ unauthorized aliens. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1000 for each form. A missing form would automatically be assessed at $1000. An employer, for example, that had 100 employees and did not complete I-9 Forms might face a $100,000 fine. IRCA investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.
Employers should also be cautioned that knowingly accepting fraudulent documents from employees is a different kind of violation that can be criminally prosecuted under other immigration laws.
What are the best ways to prevent being prosecuted for I-9 violations?
Employers can minimize the chances for being found to have violated IRCA’s employment verification rules by undertaking several steps:
Conducting a preventative internal audit of the I-9 files to see if there is a pattern of violations requiring remediation. Such an audit should be conducted by, or under the close supervision of, an immigration lawyer familiar with IRCA.
Establishing a regular training program for human resource professionals regarding I-9 compliance rules. The training should be conducted by an attorney familiar with IRCA rules.
Establishing uniform company policies regarding I-9s. Should copies of documents be retained or not? What kinds of questions can be asked about national origin and citizenship status before the date of hire? Is their uniformity in terms of when the employment verification is commenced?
Establishing a re-verification tickler system to ensure I-9s are checked in a timely manner.
Centralizing the I-9 Form recordkeeping process.
Establish a process for human resource professionals to check quickly with counsel when there are any problems in the verification process.
Establish a backup system to ensure timely compliance with I-9 rules when a human resource professional is out of the office.
It is important for business owners to protect their interests through responsible legal planning. We advise clients based on their specific needs, goals, and plans. We have formed and maintained entities for businesses as diverse as medical and dental practices, retailers, real estate developers, professional service providers, and non-profit charities. Our business and transactional attorneys take the time to help you understand the pros and cons of various business entities and offer legal advice that integrates tax, estate planning, and personal asset protection considerations.
We can help you with:
Selecting your entity
Negotiating, drafting, and reviewing contracts, leases, and other legal documents
Acting as the business’s general counsel for day-to-day operations
Drafting articles of incorporation
Preparing minutes, bylaws, and stock certificates
Forming, merging, and dissolving:
Limited liability companies
Series limited liability companies
Limited liability partnerships
Family limited partnerships
We stand ready to help with issues that may arise during the life of your business, such as employment agreements, loan documents, vendor contracts, finance agreements, real estate contracts, and buy-sell agreements.
In our increasingly litigious society, certain individuals such as physicians, business owners, and real estate owners are at a higher risk of getting sued than the average individual. Our firm can assist these individuals in making sure their assets are protected in the event of a lawsuit.
A levy or garnishment will not ordinarily be released unless some type of settlement is made on the tax liability. Therefore, an installment agreement is usually the fastest way to have a levy or garnishment released.
If a levy is not in place yet, a pending Offer in Compromise (OIC) should stop the levy or garnishment from occurring per the Internal Revenue Manual. If an OIC is filed before the levy is in place and it occurs after the OIC is filed, the IRS may reverse the levy if this is brought to their attention.
Penalty abatement is forgiveness of penalties associated with tax debt that have been added over the course of the debt. Sometimes the IRS will agree to remove such penalties when a tax payer has shown a desire to resolve the debt and has sound reasoning for the request.
The law allows the IRS to remove or reduce the penalties if you have an acceptable reason. It is wise, as a show of good faith, to pay the tax or set up a payment plan to resolve the debt prior to asking for abatement of penalties.
Claiming ignorance does little with the IRS, as it is the taxpayer’s responsibility to be aware of his or her tax situation.
If the client had a serious hardship that precluded them from filing or paying on time this may be sufficient for reasonable cause. Being hospitalized for a good portion of that tax year – particularly during tax season – would work as a reason for penalty abatement if you could prove it. Enduring a disaster or personal duress, being in prison that year, or receiving advice from a professional that resulted in IRS trouble may also work for abatement.
Your penalty abatement request must show significant circumstances that prevented them from properly handling the situation that brought about the penalties.
Interest Abatement is very rare and usually only allowed if the tax deficiency is caused in whole or in part to an “unreasonable error” or “unreasonable delay” by the IRS.
If collection of the liability would create a hardship for taxpayers by leaving them unable to meet necessary living expense, Currently Non Collectible (CNC) status may be an option. If CNC status is approved, the IRS will not pursue collections while allowing the statute of limitations to run.
To be eligible for this status, allowable expenses must be greater than the taxpayer’s income and the taxpayer must file all tax returns when due. If a taxpayer’s income drastically increases, or if the taxpayer falls out of compliance, the IRS can annul CNC status and reinstate active collection status. [/accordion] [accordion title="Installment Agreement"] Usually the installment agreement would be over 60 months, unless the collection statute is less than that time. This is where a tax professional is useful, as you do not want to pay more than you would be legally obligated to pay. Larger balances require a financial analysis of income, expenses, and assets.
This is the option that is advertised by all the companies on television ads with the slogan “Settle IRS debts for pennies on the dollar.” Per the Internal Revenue Manual (IRM) section 188.8.131.52, while an offer or its appeal is pending, and for 30 days after an offer is rejected, collection activities should not occur.
An Offer in Compromise (OIC) is an agreement between a taxpayer and the Internal Revenue Service that settles the taxpayer’s tax liabilities for less than the full amount owed. Absent special circumstances, an offer will not be accepted if the IRS believes that the liability can be paid in full as a lump sum or through a payment agreement.
The reasonable collection potential (RCP) is how the IRS measures the taxpayer’s ability to pay and includes the value that can be realized from the taxpayer’s assets, such as real property, automobiles, bank accounts, and other property. The RCP also includes anticipated future income, less certain amounts allowed for basic living expenses.
A notice of federal tax lien may be filed while the offer is pending, however, and it will not normally be released until the terms of the offer are satisfied or until the liability is fully paid. An Offer in Compromise can be filed on different basis including: doubt as to liability, effective tax administration, or doubt as to collectability. Except for the doubt as to liability basis, a thorough financial analysis is conducted by the IRS regarding assets, equity, income, and expenses. Hardship is also considered in some cases. If, after the financial analysis, it is determined that the taxpayer has the ability to pay in full, the IRS will usually reject the offer, unless substantial hardships are demonstrated.
Under Internal Revenue Code Section 6320, every taxpayer has a right to a hearing to determine whether a levy or lien is unlawful. Filing a Collection CDP hearing temporarily stops collection actions as it is an appeal. A CDP determination can be contested in tax court.
An equivalent hearing can also be requested, however it does not stop collection actions.
A “win” in tax litigation is often a favorable settlement, a mediated compromise, a percentage reduction in tax liability, a victory on some issue, but a loss on another. An out-and-out 100% taxpayer kill is certainly possible, but rare. Favorable settlements are rare, unless the taxing authority sees some vulnerability to its case, i.e., “on-point” precedents from other jurisdictions, potential erosions of the tax base for similarly situated taxpayers, or recurring problems that will remain unless resolved.
A trust is a legal entity, separate from the individual who creates the trust. This is similar to a partnership or corporation which is regarded as distinct from its owner. A trust is governed by certain rules which are set out in an agreement, usually between two parties. One person, (the Grantor) puts money or other property in the trust. A Trustee is the person who agrees to hold the property according to the terms of the agreement. The trust agreement specifies what the trustee is required to do with the property – how he is to hold it, for how long and who is to receive any benefits. Those who are entitled to receive the benefits of the trust are called the Beneficiaries. Any person who has legal capacity can create a trust or be a trustee.
Some common trusts our firm can help you create are:
Living trusts - where the Grantor creates the trust mainly to avoid probate after death
Life insurance trusts - where the Grantor creates the trust to own life insurance,
effectively removing the life insurance proceeds from his or her estate
Irrevocable investment trusts - where the Grantor effectively removes the
property contributed to the trust out of his or her estate
Charitable remainder trusts - where the Beneficiaries of the trust receive a
certain amount of income from the trust and the residue is left to charity
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property. Our firm is experienced in handling all types of probate in the State of Texas.
When a person is unable to provide food, clothing, or shelter for him or herself, to care for his/her physical needs, or to manage his or her own financial affairs due to a mental or physical condition, he or she may be found to be incapacitated, and placed under a guardianship by a Court. Our firm handles guardianship cases and can help you name a future guardian in case of incapacity so you can have a guardian of your choice in case the need arises.
A living will, also known as medical power of an attorney, is a document in which you can name an authorized agent to undertake medical decisions on your behalf if you are no longer capable of making those decisions.
A durable power of an attorney is a document in which you can name an authorized agent to undertake business or legal matters on your behalf. You may wish to have a durable power of attorney in effect so that a trusted person can undertake transactions on your behalf if you are incapacitated or unavailable. A durable power of attorney is only valid while you are still alive.
If you die and your estate is worth over a certain amount, the estate may be liable for estate taxes payable to the Federal government. You cannot reduce your estate by gifting it away before you die because a gift tax will apply on transactions over a certain amount. These tax amounts can be substantial, depending on the size of your estate. Our firm can work with you and your family to develop a comprehensive plan whereby you can take advantage of available exemptions and maximize the amount of money you leave to your heirs
1. Does it matter who files the divorce first?
Yes. There are very slight procedural advantages to filing first: for one thing, the person who brings the case first gets to talk first, and sometimes first impressions are lasting impressions.
2. Do I have to prove fault of the other spouse to get a divorce?
No. You do not have to show fault to get a divorce in Texas, but if there is fault – such as adultery, for example – it can sometimes be a factor in court, depending on the circumstances.
3. How long will it take to finalize my divorce?
A minimum of 60 days. Texas law requires that the couple wait 60 days after the date the divorce petition is filed to finalize the divorce. How long any individual case takes to resolve depends on many factors. Some courts require a divorce case to go to trial fairly quickly, while other courts are content to let divorce cases languish for very long periods of time.
4. What is a Temporary Orders Hearing?
If you and your spouse cannot agree as to how your property will be divided, your debts paid, how your property will be temporarily divided, your debts temporarily paid, and if you have children, how your children will be temporarily cared for, then you will need to have a hearing on temporary orders. Temporary Orders allow the court the opportunity to make orders that will exist during the time between the filing of your divorce suit and ending with the entry of the Final Decree of Divorce in your case. The issues to be determined at a temporary issue include:  Temporary use of property;  Temporary support and alimony;  Temporary payment of debts;  Temporary possession of children;  Temporary visitation schedule; and  Award of interim attorney’s fees.
5. Is Texas the proper state to file the divorce?
Texas is the proper state to file suit for a divorce if either the husband or wife has resided or domiciled in Texas for the preceding six-month period with the intent to stay in Texas. If the person filing the divorce is a Texas resident, the proper county for filing the divorce is the county in which the person has resided for the 90 day period preceding the filing. If the person filing the divorce is not a resident of Texas, the proper county for filing the divorce is the county where the other party resides, without regard to the 90 day residency period.
6. What will be required of a client in a divorce case?
The requirements of a client in a divorce case vary. The following is a non-exhaustive list of requirements of a client in a divorce case: A. Financial Information Statement – income and expense statement with last 2 years of federal tax returns and last 2 pay stubs attached B. Inventory and Appraisement – listing of assets and liabilities, including both community and separate property C. Discovery Responses/providing detailed information and documentation related to property and other issues D. Testimony at depositions and hearings
7. How much does a divorce cost?
The cost for a divorce depends on how contested or complex the issues are with regard to child custody and property division. The cost is also dependent on resources available to the parties (both personal as well as those available from family and friends) and the emotions the parties have tied to the litigation. In addition to attorneys fees, there may well be costs for one or more amicus attorneys, social studies, deposition transcripts, psychiatric evaluations, mediator fees or other professional fees for a child custody case. In a complex property case, financial expert fees and/or other expert fees may also need to be incurred.
8. How long does it take to get a divorce?
If the parties are in agreement, a divorce proceeding can be finalized sixty days after the Original Petition for Divorce is filed in a case (60 day minimum waiting period in Texas). If the parties are not in agreement, the time it takes will depend on the county where the case is filed, the court’s schedule and the complexity of the case. Most divorce or family law attorneys can provide a reasonable estimate after reviewing the facts of a case. Harris County, Texas (Houston) handles the first or second largest family case load in the U.S. As a result, a scheduling order is issued approximately 45-70 days from the date of filing which will provide a final trial date that is approximately 12 months from the filing date. The smaller, contiguous counties to Harris County do not usually issue scheduling order, so progressing a case is incumbent upon the divorce attorneys prosecuting the case.
9. What happens if the parties to a divorce have children together?
If there are children born or adopted during the marriage, the suit for divorce must also address matters of custody, visitation, and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not or may not be the biological child of her husband, that information must be given to the court as soon as possible. If the wife is pregnant or becomes pregnant while the divorce action is pending, the parties must usually wait until the baby is born before the divorce action can be concluded. This is true regardless of whether the husband is the baby’s father.
10. How much child support can I receive/will I pay?
The amount of child support a person (“obligee”) will receive depends upon the “net resources” from all sources of income the person paying (“obligor”) child support. There is a statutory presumption of a cap on net resources of $6,000 per month, which will normally cap the amount of child support paid.
11. How do you calculate child support?
Only the net resources of the person paying child support (“obligor”) are considered unless the obligor is intentionally under or unemployed. Monthly net resources are multiplied by a fraction to arrive at the guideline child support. The fraction for 1 child is 20%, for 2 children 25%, for 3 children 30%, for 4 children 35%, etc. The foregoing percentages are reduced by formula when the obligor has one or more other children for which the obligor has a legal obligation of support (only biological or adopted children, not step children).
12. What is included in net resources?
a) 100 percent of all wage and salary income and other compensation for personal services; b) interest, dividends, and royalty income; c) self employment income; d) net rental income; e) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
13. Can a person ever get more than the maximum amount for child support?
Yes, but rarely. The guidelines set forth above are presumed to be reasonable, but a court may determine that the application of the guidelines would be unjust or inappropriate under the circumstance. Some factors that the court will consider relevant when determining whether the guidelines are unjust or inappropriate are the age and needs of the child, the ability of the parents to contribute to the support of the child, any financial resources available for the support of the child, the amount of time of possession of and access to a child, the amount of the person receiving child support’s net resources, child care expenses incurred by either party in order to maintain gainful employment, and whether either party has the managing conservatorship or actual physical custody of another child. This list is not exhaustive.
14. How is property divided upon divorce?
A court will divide the community estate of the parties in a manner that the court deems just and right, with due regard for the rights of each party and any children of the marriage. In Texas, property division is largely a substitute for alimony which is ordered in other states. As discussed below, there are a number of factors the court can take into account in making this division something other than a 50/50 split.
15. What is separate property?
Separate property is all property owned or claimed by a spouse before marriage; the property acquired by a spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by a spouse during marriage, except any recovery for loss of earning capacity during marriage.
16. What is community property?
Community property is all property, other than separate property, that is acquired by either spouse during the marriage. There is a heavy presumption that all property is community property, and the burden of proof (by clear and convincing evidence) to disprove this presumption is on the party trying to prove that the property is separate property.
Many real estate contract disputes arise out of allegations of failure to disclose property defects prior to sale. If you have purchased property and discovered that the seller misrepresented the property condition or failed to disclose defects, we may be able to assist you in seeking compensation for your damages for fraud.
We represent business owners and other business professionals in various business-related breach of contract disputes, such as partnership disputes, contract disputes between businesses, operating agreement disputes, and other business litigation. There are time limits on filing an answer and responding to any discovery requests that may have been served. Waiting too long can result in a default judgment being entered against your company.
Partnership disputes can involve the following issues: 1. Breach of fiduciary duty claims 2. Breach of contract claims. 3. Covenants not to compete 4. Fraud Claims A company’s board and officers are held to tight standards. A fiduciary obligation does not arise in all circumstances. Some fiduciary relationships are found as a matter of law (such as the lawyer/client relationship or a partnership) and others arise based upon the facts. Once a fiduciary relationship is established, the fiduciary has the following duties in relation to the other party: 1. A duty of competence; 2. A duty to exercise reasonable discretion; 3. A duty of loyalty; and 4. A duty of full disclosure. In the business context, a partner owes his partners a strict duty of good faith, candor and there is a general prohibition against him using the relationship to benefit his personal interests except with full disclosure to the others.