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Demystifying the H-2B Visa 
Friday, August 3, 2007, 12:19 AM - Employment Law
It happens all the time these days. A contractor is awarded a large contract, but finds he doesn't have enough workers to perform the job. He advertises the position, asks around the community, always with the same result - no workers available. Finally, as a last resort, he considers importing qualified skilled workers from outside the United States, but everyone tells him it is legally impossible to import such workers. So he ends up violating the law by hiring undocumented workers, as a matter of survival. Something is wrong with this picture.

What is wrong with the picture is the misperception that importing skilled workers is legally impossible. This misperception has been perpetuated over the years by the likes of the U.S. Department of Labor and even, more surprisingly, by over-cautious immigration lawyers. It is a misperception that has so worked its way into the very psyche of the construction industry and the legal community, that there have been calls on Capitol Hill for immigration reform and for new treaties between the U.S. and Mexico to address the labor shortage problem. In fact, before the tragedy of September 11th, 2001, President George Bush was in the midst of holding high-level meetings with Mexican President Vicente Fox on the subject. These talks have since come to a halt, like many other exigencies, in the interests of Homeland Security.

Unfortunately, a lot of time and effort has been wasted trying to fix the labor shortage problem, and all the hysterics and calls for immigration reform have been for the most part unnecessary. The truth is that there is actually a little-used provision in the immigration law for importation of temporary skilled labor: the much-misunderstood "H-2B visa." This goal of this article is to demystify and clarify exactly what the H-2B visa is all about, and to offer some general information as to how a contractor might go about obtaining approval from the government for the temporary importation of workers from offshore.

OBTAINING A TEMPORARY LABOR CERTIFICATION
A contractor who seeks to import skilled labor for his short-term needs must first obtain a Labor Certificate for a specified number of workers from the U.S. Department of Labor (DOL). He does this by presenting evidence to the DOL that his need for labor is temporary and that there are no workers available in the local labor market. Once the contractor has obtained the Labor Certificate, he files this with U.S. Citizenship and Immigration Services (USCIS), which then authorizes the visas. The USCIS will deny any visa request that does not include a Labor Certificate.

TEMPORARY NEED DEFINED
A temporary need is defined in the applicable laws and regulations as a need that is less than twelve months. Additionally, the need must fall into one of the following categories: one-time need, seasonal need, peak-load need, or intermittent need. In the construction industry, the category that is most often used is the peak load need, which usually recurs annually. In any case, the contractor must present documentary evidence of his temporary need along with the application for Temporary Labor Certificate. Failure to provide such documentation is always fatal to a case. Other documents that are helpful in establishing a temporary need are a detailed itinerary and any larger than normal contracts.

PROVING UNAVAILABILITY OF LOCAL WORKERS


Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days. The DOL also opens a job order on the internet for a period of ten days. Interested applicants are instructed to send their resumes and references directly to the DOL, which then forwards these to the contractor. Given the current labor shortage, our experience has been that few, if any, qualified workers send their resumes to the DOL. Those that do rarely show up for work if offered a job. In any event, the contractor must contact any applicant that appears to meet the minimum qualifications. Once the recruitment period comes to an end (usually 14 days), the contractor send a statement of recruitment results to the DOL and waits two or three weeks for approval of the Labor Certificate.

UNION INVOLVEMENT
An extra-congressional, internal DOL policy singles out the construction industry as having to get union clearance before the DOL will issue a Temporary Labor Certificate. It is our opinion that this is a burdensome and discriminatory policy. At present, we are informed that a preliminary understanding with DOL officials in Washington D.C. and in Boston has been reached that notification of the appropriate union local is sufficient, so long as the contractor proves that the contact was made. If the union then wishes to refer individuals, they must apply as individuals through the normal channels. The union may not simply send over a roster of names. Additionally, the union has only 5 days in which to make its referrals. This understanding, as stated above, is only preliminary. Total elimination of the union notification requirement is preferred by non-shop contractors seeking to employ alien labor.

ROOM FOR EXPANSION
There are currently 66,000 H-2B visas available every year. However, on average, only 40,000 visas are actually utilized in any one year. This is in marked contrast to the better known H-1B visa, which is utilized to import professional labor. The H-1B visa was originally capped out at 65,000 visa per year, and each year there were more visa applications than available visas. At the insistence of the High Tech and IT lobby, congress raised the cap in excess of 200,000 visas per year. Although the number of available H-1B visas is back down to 65,000, the precedent for the solution is established nonetheless: Even if contractors suddenly take advantage of the H-2B visa to address their temporary labor needs (as the IT industry has done), there is no problem if the visa demand exceeds the supply of available visas - congress can always raise the cap as it has done before.

A WIN-WIN SITUATION
Contractors that take advantage of the H-2B visa to solve their short-term labor needs will not only benefit themselves, but will benefit the labor market on the whole. They will not need to continually run afoul of the law by hiring undocumented workers. Instead, they can bring these same workers into the system (regardless of whether they come from Mexico or Canada or Europe), use their valuable services for several months each year, and then let them go home for a few months until the next peak-load or seasonal labor cycle. At the same time, these same contractors will have effectively solved their short-term labor problems and will no longer have to turn down or lose valuable contracts due to lack of workers. In the meantime, the United States construction industry will have the time to find local solutions to the skilled labor shortage.

Copyright 2007. Ortega-Medina & Associates Ltd. All Rights Reserved.

By: Orlando Ortega-Medina
http://www.ortega-medina.com
Orlando Ortega-Medina is lead counsel for the U.S. business immigration law firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex H-2B visa cases, and is frequently engaged by other counsel to troubleshoot visa denials.

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California Prenuptial Agreements 
Wednesday, July 25, 2007, 12:17 AM - Family Law
Aren’t Prenups unromantic and indicate a lack of trust?

Even though one in ten couples now enter into some kind of prenuptial or premarital agreement (“prenups”) many couples are reluctant to enter sign a prenup because it seems unromantic and indicates a lack of trust.

There are several reasons why this reluctance is misplaced.

First, if not you do not sign a prenup, your marriage will be governed by a complex set of laws. In California they are the California Family Code and Probate Code. Either way your marriage will be governed by a complex set of rules. The choice is between a set of rules negotiated by you or imposed by the State.

Second, from a historical perspective, premarital contracts lie at the root of the institution of marriage. For two thousand years, Jewish marriages have been preceded by a prenuptial agreement called the “Ketubah.”

Third, far from undermining trust, the process of drafting and negotiating a prenuptial agreement may, in fact, strengthen your relationship. The process requires a full disclosure of your financial situation and involves an open and honest discussion of about how you will handle your money and plan your future. One psychiatrist states: “openly agreed upon rules are likely to be a better foundation for growth than are those latent rules that surface and prove to be either disagreeable or downright outrageous (‘What do you mean, you don’t do dishes?’)”

Fifth, prenups prepare you for marriage. Sooner or later you are going to have to talk about money issues. Why not do it now and save heartache and trouble later on? After your honeymoon is over you will soon find out how earning and spending money is an integral part of your marriage. The Catholic Church recognized this fact and incorporates a prenuptial dialogue in a marital preparation process called “Pre-Cana.”

Sixth, prenups can be drafted to protect both spouses not just a wealthy spouse.

Seventh, it just makes sense. No-one plans on their house burning down, ending up in a nursing home or suffering a disability but they still take out insurance. As Dr. Ruth says: “We live in such a litigious society. Nobody knows what life brings. Hopefully we will never need it. What’s the big deal? Let’s do it and give it to the attorneys…for the new millennium, a prenup is part of a mature relationship, based on love, mutual trust and optimism.”

Do I need a California Prenup even if I don’t plan to live here?

Even if you do not live here when you divorce, California can still assert jurisdiction over you for support, attorneys' fees, and the division of property. California also applies the doctrine of divisible divorce which means that each aspect of a divorce is treated differently for jurisdictional purposes. For example, a California court could assert jurisdiction over custody and visitation matters but relinquish property matters to the Court of another state. Consider the billion dollar divorce of David and Susanne Sapperstein. Vanity Fair reported that David Sapperstein left was his wife of 23 years for their Swedish nanny. Suzanne lived in Los Angeles with their youngest child in what is reported to be the most expensive mansion in Los Angeles. During a trip to France on the couple’s gulf stream jet, David said they had to stop over in Houston, Texas where he had business. Once they hit the ground, his attorneys served Suzanne with divorce papers. A few days later she filed divorce papers in California. Why? California has more liberal rules on alimony (spousal support) than Texas which ends after three years.

Even though a California prenup is designed to apply only if you are divorced in California, it may apply if you are divorced in another state. That result is not guaranteed but there is a good chance that it will be. If you want to make sure that your California prenup is enforced in other states you need to retain counsel in that state to review the prenup.

There is an even greater risk that a California prenup will not be enforced in a foreign country. Many countries such as Denmark, France and Germany recognize prenups but have different marital laws and specific procedures for the execution and registration of prenups. England and Australia do not recognize prenups but some courts have taken them into account when dividing property. If you plan on living in another country you should consult with a family law attorney in that jurisdiction.

Sex and Prenups

California prenups cannot regulate child custody or child support. They cannot regulate your behavior and they cannot punish a spouse for being unfaithful. In one highly publicized prenup, a New Mexico couple agreed that they should have sex at least five times a week, pay for everything in cash and not leave clothes strewn on the floor. Those provisions wouldn’t be enforceable in California. It should be noted that the couple are reportedly still happily married.

Religion and Prenups

Prenups cannot regulate the practice of religion. However, in one important area prenups can provide a spouse with an important religious protection. Under traditional Jewish law, if a husband does not grant his wife a religious divorce or “get,” the woman is considered an “agunah” and cannot get re-married. California does not have a “get” law like New York so in order to protect a Jewish woman’s right to a “get” it is suggested that a prenup contains a penalty clause that the husband pays a fine for every day he does not grant a “get.”

Prenups and Community Property

In the absence of a prenup, California community property law provides that all community property (any property acquired during the marriage while the parties are living in California that is not a gift or an inheritance) is divided equally upon divorce. It usually does not matter if the property is in one party’s name – if it is acquired during marriage, with some exceptions, it is community property. Property owned before marriage is separate property and cannot be divided by a court and belongs to that party. However, efforts to improve, enhance or contribute to separate property can create a community property interest in that separate property. That is where a prenup comes into play. A prenup can provide that your spouse never acquires a community interest in your separate property.

If you do not have a prenup, the determination of what is separate and what is community property often requires the use of forensic accountants. In high-asset cases, the accounting and legal fees can run into the hundreds of thousands, or even millions, of dollars. Furthermore, in determining whether a business owned before marriage has any community interest, the property must be valued both at the time of marriage and at the time of separation, and sometimes again at the time of the divorce trial which can be years after filing for divorce. Similar calcula¬tions are made for real estate and intellectual property. Furthermore, earnings are commu¬nity property. If you married without a prenup and earned $50,000,000 during your marriage, that entire sum would be community property. That means your spouse would own one-half of that property and anything purchased with that property.

Furthermore, if you lost any of that money in a bad investment or mismanaged your assets, your spouse may have an action against you for a breach of fiduciary duty. And if you reinvested those earnings in a separate property business or any other property, your spouse could request that you reimburse the community for the money spent. In a long term marriage that tracing may be impossible to do and sometimes the person claiming a separate property interest forfeits their claim.

Under California law, the proceeds of loans are community property under certain circumstances. If an individual owns compa¬nies and uses financing or factoring to finance a business, the loan proceeds can be so commingled in the business that the owner can end up losing his separate property interest. Also if you refinance your real estate, you may be contributing community property to your separate property asset.

A prenup can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources a prenup can provide that all income, assets and debts acquired or incurred remain separate property. Alternatively, in lieu of a community property distribution, a wealthier spouse might agree to pay the other spouse a lump sum based on the length of the marriage. On the other hand, a couple might agree that all property accumulated during the marriage remain community property but that certain property brought into the marriage such as family businesses or funds always remains separate property. Since each situation is different a prenup should be carefully tailored to meet the circumstances of each couple.

Spousal Support

California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable. Unfortunately, as yet there is no case law defining the word "unconscionable." If there is a significant disparity in the amount of wealth between the parties, instead of waiving spousal support, the prenup may place limits on the amount and duration of support. The amount and duration can be based on a formula which takes account of the income of the parties and the duration of the marriage.

Do it right

When Steven Spielberg and actress Amy Irving divorced after four years, she argued that their prenup which was written on the back of a napkin was not enforceable because she was not represented by an attorney. The Judge agreed and she received a $100 million settlement. When Spielberg married Kate Kapshaw, both were represented by attorneys when they signed a prenup.

By: Warren R. Shiell
© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com.

Featured as a California Law resource, by California Personal Injury Attorneys, a California personal injury attorney / accident lawyer directory, listing hundreds of links to California personal injury attorney / accident lawyer websites and over 1,500 non website courtesy listings.

The information contained in the above post is not intended as a source of legal advice. You should not act upon or rely on information in this or any other post without the advice of competent legal counsel.
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Buying a Home 'As-Is' - Should You Be Worried? 
Wednesday, July 18, 2007, 12:16 AM - Real Estate
Most homes are sold ‘as is." In fact, the form Residential Purchase Agreement used by most brokers has a pre-printed ‘as is' clause stating that the property is sold ‘as is' without any warranty and in its present physical condition. In a recent purchase, I was asked by the seller to also sign a special lawyer-prepared document which reiterated (in a full page of legalese) that the property was being sold ‘as is.' My first instinct was to ask: What is wrong with this property and am I losing all of my rights by agreeing to buy it ‘as is?

There is no clear-cut answer but a quick explanation of the law should put your mind at ease when buying a property ‘as is.'

What is wrong with This Property?
As the Agreement notes, ‘as is' means that the Seller is not making any warranties about the condition of the property. Selling ‘as is' does not necessarily mean that anything is wrong with the property. The Buyer, however, should have a professional inspector look at the property and accompany the inspector as he examines the property. The inspector's trained eye will catch items that you may not notice.

Am I losing All of My Rights?
If it turns out that a problem arises with the property after the deal has been closed, what remedy does a Buyer have in an ‘as is' sale? The ‘as is' clause works in concert with other laws, most notably California Civil Code §1102. This section requires that the Seller provide the Buyer with a detailed Real Estate Transfer Disclosure Statement.

The Disclosure Statement addresses almost every conceivable defect with the property-from the presence of contaminants to lawsuits against the property. In general, the Seller is under a duty to disclose any and all facts materially affecting the value or desirability of the property which are known only to him and which he knows are not known to, or reasonably discoverable by, the Buyer. Even loud or obnoxious neighbors must be disclosed.

If the problem has been disclosed by the Seller, the Buyer has no cause to complain at a later date. He could have walked away from the deal or renegotiated. However, if the Seller knew about the problem but did not disclose it, the Buyer may have a claim against the Seller.

In a recent case, our client purchased a multi-million dollar home only to find that the winter rains brought extensive leaking. The professional inspection had noted that the roof should be maintained yearly and would have to be replaced in three years. However, it had not uncovered any leaking, and the Seller made no mention of roof leaks in the Disclosure Statement. However, the gardener and housekeeper, both of whom had worked for the Seller, remembered numerous roof leaks while the Seller lived in the house.

The Seller argued that (1) the house was being sold ‘as is' and (2) the inspection put the Buyer on notice that the roof was in bad shape, thereby absolving her of any liability. In any event, she also claimed to have repaired the leaks and thought that they had been fixed.

While the inspector may have noted the limited life of the roof, the Seller was still required to disclose the leaking. The leaks were a material fact affecting the value (and habitability) of the home. In this case, neither the Buyer nor the inspector could have discovered the leaks in a visual inspection of the property. (Interestingly, because of liability issues, professional inspectors often will not allow the Buyer to follow them up to the roof, at least not on the inspector's ladder!) The Seller settled with the Buyer, and the roof was replaced.

So, rest assured, although you may be buying the house ‘as is,' the Seller is not excused from disclosing material problems in the Disclosure Statement. And in the event the Seller fails to make these required disclosures, the Buyer has a legal remedy, despite the ‘as is' provisions of the Agreement.

By: Laine T. Wagenseller
Laine T. Wagenseller is the founder of Wagenseller Law Firm, a full service real estate litigation firm in downtown Los Angeles. The firm represents real estate developers, owners, and investors. For more information visit http://www.wagensellerlaw.com or contact Mr. Wagenseller at (213) 996-8338.

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Custody and Visitation Law in Los Angeles. 
Saturday, July 14, 2007, 12:14 AM - Family Law
How can parents decide on a parenting plan?

Parents who separate must have a parenting plan for deciding how they will share parenting responsibilities. A parenting plan must be in writing and signed by both parties and a judge to be enforceable.

What if parents cannot agree on a parenting plan?

If parents cannot agree on a parenting plan on their own they may go to court and ask a judge for a temporary order. The Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree on a parenting plan. In Los Angeles conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles Court's web site at lasuperiorcourt.org.

What goes into a parenting plan?

When parents decide on a parenting plan they should develop a plan around the needs and best interests of their children and not their needs or schedules. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children.

"Legal" custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at courtinfo.ca.gov/forms.

"Physical" custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A parenting plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? To get ideas for parenting plans you can take a look at forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment." These forms have been approved by the Judicial Council of California and can be found at courtinfo.ca.gov/forms.

Are there typical parenting plans?

The answer is no. Each parenting plan should be tailored to the needs of each family. The following are, however, examples of timeshares that often form the basis of parenting plans.

Freeman Order: One parent has primary custody and the other has visitation on alternate weekends and one evening a week.

2-2-3 timeshare: In week one, Parent 1 has physical custody on Monday and Tuesday (2), Parent 2 has Wednesday and Thursday (2), and Parent 1 has Friday, Saturday and Sunday (3). In week two, Parent 2 has Monday and Tuesday, Parent 1 has Wednesday and Thursday, and Parent 2 has Friday, Saturday and Sunday, and so on.

2-2-5-5 timeshare: This is generally more appropriate for older children. In week one, Parent 1 has physical custody on Monday and Tuesday (2), Parent 2 has Wednesday and Thursday (2), Parent 1 has Friday, Saturday, Sunday, Monday and Tuesday (5). In week two, Parent 2 has Wednesday, Thursday, Friday, Saturday and Sunday (5), and so on.

Some state courts have developed model parenting plans that take into account what is appropriate for children of different ages. The Supreme Court for the State of Arizona has developed a model parenting plan that can be found at: supreme.state.az.us/dr/Text/ModelPTPlans.htm.

Any tips for making a parenting plan work?

• Use a calendar so each of you knows the children's schedules. Put it in a place that's easy for you and the children to see.
• Communicate in a civil and timely manner with the other parent when scheduling conflicts arise. The more notice you give, the better. These days email and other online calendaring tools can be effective.
• Never put the children in the middle of fights.

How do we modify a parenting plan if circumstances change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and also has to show that there has been a substantial change of circumstances.

I'm afraid that my spouse poses a threat to the kids when they visit. What can I do?

If there has been domestic violence or one parent believes that the other poses a risk to the children, the Court may order supervised or monitored visitation. Visitation may be supervised by a professional or non-professional monitor such as a friend or family member. When choosing nonprofessionals parents should chose more than one so that no visits are missed for lack of a monitor.

The other parent wants to move out of state. What can I do?

In recent years several appellate court decisions have settled the following rule regarding move-aways. If there has been no court order, the Court looks to the best interests of the children. If there has been a Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the Court order provides for joint custody. If the parents have joint custody, the court decides what is in the best interests of the child. However, if one parent has primary physical custody (more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child.

© 2007 Warren R. Shiell. All rights reserved.

By: Warren R. Shiell
The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com.

Featured as a California Law resource, by California Personal Injury Attorney, a California personal injury attorney / accident lawyer directory, listing hundreds of links to California personal injury attorney / accident lawyer websites and over 1,500 non website courtesy listings.

The information contained in the above post is not intended as a source of legal advice. You should not act upon or rely on information in this or any other post without the advice of competent legal counsel.

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