Cobos Law Firm Blog

The Immigration and Nationality Act (INA) makes it illegal for employers to knowingly hire undocumented workers and requires employers to verify each worker’s identity and eligibility by completing the I-9 Form. An employer’s failure to complete the I-9 Form can result in criminal and civil penalties.

The INA also protects individuals from employment discrimination based upon national origin, citizenship or immigration status. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) enforces the INA’s anti-discrimination provisions.  Victims of discrimination may file a complaint with the OSC to seek back pay, reinstatement and other remedies.

With so much at stake and so many potential pitfalls, it is important for all employers to familiarize themselves with the requirements and implement policies and procedures to ensure compliance.

Employers are prohibited from:

• Discriminating on the basis of citizenship or immigration status, with respect to hiring, firing, recruitment or referral. This rule applies to employers of four or more employees.
• Discriminating on the basis of national origin, with respect to hiring, firing, recruitment or referral. This rule applies to employers of between three and 15 employees. Employers may not extend different treatment to different individuals based on their birth place, country of origin, native language, ancestry or because they may look or sound “foreign.”
• Requesting more or different documents to verify a worker’s employment eligibility. An employer may not request different or additional documents for determination of citizenship or national origin than those documents specified on the I-9 Form.  Furthermore, an employer is not permitted to reject genuine-looking documents.
• Retaliating against an individual who files charges with the OSC, cooperates with an investigation or contests an action that may be considered discriminatory or in violation of the INA.

To improve compliance in your employment procedures, consider implementing the following practices:

• Refrain from using discriminatory language in job postings, such as “green card only” or “U.S. citizen only,” unless it is required by law or by a government contract.
• In completing the I-9 Form, do not request specific documents over other permitted documents. Each employee is permitted to present any document from the list of acceptable documents stated on the form.
• Refrain from selectively verifying work eligibility for only certain employees based on their citizenship status or national origin; whatever your policy, make sure it is applied consistently to all employees.
• Avoid the appearance of discriminatory practices by verifying employment eligibility only after you have made a hiring decision, and give the employee three days to provide the required documentation.
• Do not immediately terminate an employee if you receive a “no match” letter from the Social Security Administration. While such a letter may mean the individual is not authorized to work in the United States, it is also possible that there is a discrepancy in the record due to a clerical error or legal name change.
• If you suspect that an employee is not legally eligible to work in this country, notify the employee and request valid employment eligibility documents before terminating or suspending employment.

We have the business and immigration law expertise to assist you.  Call and schedule your consultation today.  Franz Cobos, Esq.

1.     Deciding on a Business Form

There are various business forms to choose from.  A sole proprietorship is the easiest to set up, manage, and maintain. There is minimal paperwork necessary to set up a sole proprietorship since there is no distinction between the business and the proprietor. Unfortunately, if a sole proprietorship faces a lawsuit, the owner’s personal assets are at stake.

This can be avoided by registering a Limited Liability Company (LLC) with the state. An LLC limits an owner’s liability to the investment in the company, but it requires filing separate taxes every year and can affect the business’s profit margin. Other common ways of organizing a business include corporations, partnerships, and 501c(3) nonprofit organizations. Partnerships, LLC’s, corporations or nonprofits all have advantages and disadvantages.  It is wise to discuss this matter with a qualified business law attorney who can lead you in the right direction when it comes to business form.

2. Deciding on an S Corp or a C Corp

If you decide that a corporation is the right form, it is important to understand the various types of corporations.  S- and C- corporate forms are available.  There are several differences between a C Corp and an S Corp.  The most significant is the way the two are treated for tax purposes. A C-Corp pays taxes on its profits and the principals pay taxes on the money they have received from the company. In an S-Corp, the business files a K-1 form and the profit from the business is included in the individual taxes of the principal. An S-Corp is permitted to shift some of its income from one year to the next. In addition, a C-Corp has more leeway in determining when its fiscal year starts and ends.

3. Securing an entity name and a tax ID number

Securing a tax ID number is a simple process, requiring only the filling out of forms either on the IRS website, by mail, by fax or by touchtone telephone. No fee is necessary for the application. A tax ID number may also referred to as an EIN (Employer Identification Number), is nine digits long.

4. Register with your state  

In order to ensure compliance with rules governing workers' compensation, unemployment insurance, local taxes and access to other government resources, it is important to notify the state in which you operate what you are doing.

5. Obtain necessary licenses and permits

Depending on the type of business you run, different permits may be required to operate.  For example, a restaurant not only requires approval by the board of health, but requires a liquor license in order to be legally permitted to serve alcohol.

We can help you decide what is necessary to start your business off on the right foot.  Franz Cobos, Esq.

Mediation is one form of alternative dispute resolution (ADR) that allows parties to seek a remedy for their conflict without a court trial. Parties work with a mediator, who is a neutral third party. Usually, mediators have received some training in negotiation or their professional background provides that practical experience.

Unlike a judge, a mediator does not decide who wins; rather, a mediator facilitates communication between the parties and helps identify issues and solutions. The goal is for parties to reach an acceptable agreement.

Mediation can be an appealing option because it is less adversarial. This might be important when the relationship between the parties has to continue in the future, such as between a divorcing couple with children. The process is also less formal than court proceedings.

Mediation often costs less than litigation, which is another benefit. Another advantage to using mediation is that it generally takes much less time than a traditional lawsuit. Litigation can drag on for years, but mediation can typically be completed within a few months. Court systems are embracing mediation and other forms of ADR in an effort to clear their clogged dockets. There are some programs that are voluntary, but in some jurisdictions, pursuing ADR is a mandatory step before a lawsuit can proceed.

Mediation can be used in a variety of cases, and it is sometimes required by a contract between the parties. Mediators can be found through referrals from courts or bar associations, and there are companies that specifically provide ADR services. Ideally, a mediator will have some training or background in the area of law related to your dispute.

Mediation is often a successful way to reach a settlement. If parties fail to resolve their conflict, information learned during mediation might be protected as confidential under state law.

Contact our law firm today to help determine if mediation would be a valuable tool to resolve your case.  Franz Cobos, Esq.

The Supreme Court of the United States has repeatedly held that the protections of the US constitution are limited to U.S. citizen, but individuals maintain certain rights regardless of their immigration status. Every person has the right to equal protection under the law and to due process.  This means that a person accused of not maintaining legal status in the United States has the right to defend him or herself against removal from the country. Similarly, where there are criminal allegations against an undocumented immigrant, that person has all the same rights as would an American citizen. This includes the right to confront witnesses in a trial, the right to representation, and the right against unreasonable searches and seizures by the police.

Regardless of immigration status, everyone has a right to free speech, freedom of religion, and freedom to peaceably petition the government. Undocumented children in the United States have a right to free public education. Publicly funded hospitals are required to provide medical care to all patients. They are prohibited from discriminating against a person based on immigration status. Undocumented immigrants are permitted to file lawsuits against other people and the government for claims arising out of negligence, just like any other person in the United States.

It is, however, against federal law to hire someone who is undocumented. It is the responsibility of the employer to ensure that every employee hired is legally permitted to work. Nonetheless, once a person is hired, that individual is entitled to some rights in the workplace. He or she must be paid the minimum wage. It is improper for an employer to prohibit anyone from forming a union. If an undocumented immigrant is injured on the job, he or she is entitled worker’s compensation and disability if it is part of the employer’s normal practice. Undocumented workers are protected from workplace discrimination and sexual harassment by federal law as well.

Many undocumented immigrants are victims of crimes and are afraid to come forward to the police for fear of deportation. This goes against public policy, so in 2000, the federal government created a new visa to allow undocumented immigrants to stay in the country legally for up to four years if that person is the victim of a qualifying crime. This visa is called a U visa and is an important tool to protect undocumented people from crime.  If you or a loved one need legal representation, call now, we here to help.  Franz Cobos, Esq.

1.     Buy the assets instead of the business

Purchasing a small business includes assuming any debt accrued by the business. The buyer is also purchasing any potential liability from accidents or misconduct of the seller that occurred prior to the sale. This can be avoided if the new owner purchases the assets instead of buying the entire business. Taking this action also resets the tax basis of those assets to the current purchase price instead of the price the seller paid for them.

It is important to make sure that the assets are being sold unencumbered, meaning that they were not financed since any debts accrued may follow the assets. The assets, such as machinery or furniture, should be inspected and tested to make sure they are in good condition and fully functional. Also, the buyer should consider paying in installments so that if assets turn out to be damaged and require repair or liabilities are discovered down the line, deductions can be made from future payments. Purchasing assets is usually the better option for a small business owner. It is always wise to consult with an attorney to determine your best options.

2.     Examine the lease

Leasing space is one of the most expensive aspects of running a business. Before purchasing, the small business owner should review all potential expenses, paying particularly careful attention to the lease. The purchaser should confer with the landlord to confirm that:

No problems will arise in the lease if a transfer occurs;

No back rent is owed; and

The premises are in good condition.

If the buyer intends to renegotiate the lease, it should be done prior to the purchase. 

3.     Evaluate the landlord

If there are other tenants in the area, the potential buyer should question them in order to assess the landlord's trustworthiness. If other tenants have had problems with the landlord, it is likely that the new owner will have issues as well. If the prospective landlord does not have the reputation of being honest or reliable, it probably does not make sense to go through with the purchase. 

4.     Ensure a smooth transition

Many sellers do their best to hide the fact that the business is being sold from their employees. This can present serious difficulties for the new owner since, in order to continue operations after a purchase, it is crucial that key employees remain on staff to help ease the transition. A potential buyer should always speak with existing employees to confirm their competence and willingness to stay on. These key employees have ongoing experience in running the day-to-day operations of the business and are likely to be aware of problems with running the business that have not been revealed by the seller and are not immediately apparent to newcomers.

At times, the seller stays on to consult with the buyer for months after the sale to ensure a smooth transition. In any event, the buyer should always make sure that the seller signs a non-compete provision to prevent future conflicts.  Now, is when you need an aggressive and knowledgeable attorney.  Call us today for your consultation.  Franz Cobos, Esq.

You may have signed several affidavits over the years, without fully knowing what they are.  You might have signed one to register to vote or obtain some government benefit.  An affidavit can also be used as evidence in a lawsuit.

An affidavit is a written document.  The person signing it (the “affiant”) declares under oath that he or she is making voluntary and truthful statements.  Requirements for an affidavit vary based on the circumstances and jurisdiction.  In most jurisdictions, an affidavit must contain the affiant’s name, physical address and the affiant’s signature.  

The contents need to be voluntary and limited to what the affiant knows to be true because of direct observation or experience.  Before signing an affidavit, be certain of the basis of your knowledge.  Do you know these statements to be true or just think that they’re true?

Most jurisdictions require the affiant swear under oath that the statements are true before signing the document.  That signature needs to be witnessed and certified by a notary public, attorney or other public official authorized to take oaths.  The affiant must understand the content of the affidavit, the importance of an oath and the consequences for violating an oath.  A person who lies on an affidavit may be deemed to have committed perjury and face considerable penalties. Given the significant consequences, anyone who is not mentally competent shouldn’t sign an affidavit or be asked to sign an affidavit.

You may be asked to sign an affidavit if you witnessed an incident that may lead to, or has already resulted in, legal action.  Parties, or their attorneys, may want a formalized, written statement of what you saw.  If you’re in this position, make sure the affidavit is complete and accurate.  Consult your own legal counsel before signing.  The party contacting you may want an affidavit that puts them in the best light, not one that tells the whole story.

Be very careful about what’s stated in the affidavit, as opposing counsel may focus in on the document and investigate every aspect of it during litigation.  In a deposition or during a trial, opposing counsel may press you on the contents of affidavits to impeach your credibility.  

For undocumented immigrants, one of the biggest obstacles to living a mainstream life in the United States is the inability to obtain a driver’s license. This is troublesome for a number of reasons. In most parts of the country, it is nearly impossible to travel any distance without driving since public transportation is often unreliable and time-consuming. Other alternatives, such as walking and biking are only viable in good weather and for relatively short distances. Relying on others for transportation is not only undependable but requires a degree of indebtedness many travelers want to avoid.

A study by Temple University shows that laws preventing undocumented immigrants from holding a driver's licenses interferes with basic human rights. Without the ability to drive themselves to interviews or employment, most potential jobs are hopelessly out of reach. Moreover, children’s education is often compromised, and it becomes difficult to deal with medical emergencies. Inability to travel by car negatively impacts economic mobility, safety, and self-worth, and exacerbates the ever-present fear of deportation.

Immigrants who drive are, in some locations, pulled over more frequently than other drivers due of ethnic profiling, and are often forced to pay heavy fines. Not only do the fines have a negative economic impact on those already struggling financially, but such drivers, if found guilty, may have their licenses suspended indefinitely. This creates far-reaching problems for these individuals if and when they do obtain green cards and apply for driver's licenses. Repeat offenses can result in jail time which will adversely affect any attempt to obtain documentation through the legal process.

On the plus side, a valid driver’s license issued in the driver’s home country can be used legally in the United States. Some states require an International Driver’s Permit, a multi-language document. This permit should be issued by the applicant’s home country. Scam artists who sell false permits in the United States, however, are all too common. Immigrants need to be cautioned to be aware of such costly and dangerous swindles. 

Once the driver's license from a driver’s home country expires, the individual is expected to either apply for a driver’s license in his or her state of residence or stop driving altogether. Currently, only 11 states and Washington DC allow undocumented immigrants to apply for a license.  These states are California, Washington, Nevada, Utah, Colorado, New Mexico, Illinois, Maryland, Delaware, Connecticut, and Vermont. Each of these states has its own rules and regulations for individuals obtaining licenses without a social security number.  Our firm is in the best position to provide you guidance about these regulations.  Call us for a consultation today.  Franz Cobos, Esq.

Lawyers are often mocked in pop culture as “sharks,” but a quick flip through the TV guide tells you the real sharks out there are in the business world. The ABC reality show “Shark Tank” has become a cultural phenomenon, inspiring tons of people to start their own businesses and invent new products.

If you are part of the wave of Shark Tank inspired entrepreneurs, here are some legal tips for you.

Don’t go into the Shark Tank, or into business, without a plan. On the show, the entrepreneurs that do the best are the ones that are the best prepared to answer all of the sharks’ questions. In the everyday business world the same is true. It’s just that it’s not sharks asking the questions - it’s investors, employees, and the other companies you are doing business with. 

Be prepared to take risks, but preferably not legal ones. Starting a business is a gamble, but it can be downright dangerous if you don’t fully comprehend the legal risks you are taking on. Several entrepreneurs have had their dreams crushed by the sharks because their business is just too big of a legal risk to invest in. In order to be successful in business you need to know what risks you face so you can plan around them.

Be prepared to negotiate. The sharks rarely buy into a business on the first terms offered to them by the entrepreneurs. In and outside the tank, the successful business owners and inventors are the ones prepared to negotiate to get a deal that is good for both parties. This often means giving up more equity than originally planned or revaluing assets to reflect market realities.

Patents are shark bait. The old saying “you’ve got to spend money to make money” is absolutely true in the innovation world. The sharks’ eyes light up when an inventor mentions that they have a patent on the idea or product they are pitching. That’s because patents are hard assets that you can buy, sell, license or build a business around. If you have a great idea, spend the money to patent it. 

Going head to head with the sharks is something only a few businesses do. But feeling like you have been thrown to the sharks is something all business owners and inventors can identify with. If you are looking for someone to help you navigate the legal issues your business is facing - from starting up, to scaling up, to selling out.  We can help you.  Call us for a consultation today.  Franz Cobos, Esq.

The Internet can be a very hostile place, with trolls and bullies lurking around every corner. So it came as a big surprise when a photo of an illegal immigrant graduating from college went viral, not for generating an outpouring of xenophobia and hate, but of support.

The popular blog Humans of New York (HONY) was bombarded with positive comments after it posted a picture of a young lady in cap and gown with her accompanying quote “I’m an illegal immigrant.” Many commenters offered words of encouragement, with several noting that she is the living embodiment of the American Dream.

Others pointed out that the young woman's comment could be interpreted as a joke. If she were in this country on an educational visa, it would technically have expired the moment she got her diploma. 

Although the public is supportive of immigrants working towards a better life, immigration officials are not allowed to give you a free pass just because you are in school. Student visas are relatively easy to obtain compared to other types of visas, so there is really no reason not to have legal status while you are in school.

If you are an immigrant and are pursuing the American dream via starting your own business or seeking employment with a business within the United States, you may qualify for a different type of visa.  For example, those looking to work in the United States can apply for H1B, H2B and L1 visa’s among others.

If you are an immigrant, and your American Dream involves getting a college education, graduate degree, working for an American company or starting your own business within the United States, we strongly recommend hiring an experienced immigration attorney.  We can help you navigate the system.  Call us today for a consultation.  Franz Cobos, Esq.

Prenup Considerations

Most people think of marriage as a declaration of love and commitment, not as a legal contract that defines the financial and familial obligations of each party. That is, until they start negotiating a divorce settlement and discover their state’s policy on the division of marital property and spousal support. Although not every couple establishes a prenuptial agreement, there are several good reasons for having a smart prenup in place before saying those magical words, “I do.”

What is a Prenup?
A prenuptial agreement is a legal document that allows the couple to make decisions about their finances and marital property should they eventually decide to part ways. You cannot circumvent the child custody statutes in your state through a prenuptial agreement, although you can decide who gets to keep the family dog. The terms of the prenup must be legal and should be fair to both parties. For instance, an agreement that would leave one spouse homeless with no source of income would not be enforceable.

A prenup is particularly useful when one, or both parties, enter into the marriage with valuable assets or has children from a previous relationship. Older couples are more likely to consider a prenup because they have more assets to lose. Those who are exchanging matrimonial vows for a second or third time recognize that having a customized financial game plan in place can make divorce proceedings less stressful.

A prenup can eliminate later disputes over assets during a divorce and save the couple from acrimonious, time consuming and stressful litigation. 

When Should You Consider a Prenup?
A prenup might be a good idea if you have any of the following concerns:

 

• Providing peace of mind for the partner who has significantly more income or wealth
• Making sure your business remains intact, in your name
• Defining assets such as property, a retirement fund or investments as separate property, not marital property
• Retaining possession of family property, heirlooms or an anticipated inheritance after a divorce
• Looking after the long-term interests of children from a previous marriage
• Worrying that changing your career plan to raise children will leave you at a financial disadvantage
• Avoiding interference with an estate plan
• Financing long-term care for elderly parents or relatives

Starting Your Marriage the Right Way
The divorce laws in most states work on the assumption that both partners in a marriage have agreed to pool their tangible and intangible assets, and the courts generally attempt to make an equitable and fair division of these assets following a divorce.  A prenuptial agreement gives you and your intended spouse the opportunity to consider potential areas of disagreement regarding your financial future and address them in a forthright and realistic manner.  Call us today for a consultation if you need assistance with drafting o reviewing your prenuptial agreement.  Franz Cobos, Esq.

 

Ever since the post-Civil War adoption of the 14th Amendment to the Constitution, all persons born on American soil have been automatically granted citizenship. This policy was common sense in the era it was adopted, a time when international travel was cumbersome and relatively rare, but today its wisdom is being questioned. Is birthright citizenship being abused by people who want to short-circuit America’s labyrinthine immigration law?

The Citizenship Clause of the 14^th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

From the moment it was adopted, this clause has motivated foreigners to give birth in America. For many years the number of these birth-tourists were limited by the nature of travel, but in today’s world, where air travel drastically cuts down the time it takes to get from one country to another, the path to citizenship guaranteed by the 14^th Amendment is well-trod.

Stories abound of pregnant women visiting the U.S. on tourist visas who stay long enough to have their children, get American birth certificates and passports for them, then go back to their native countries, American tot in tow. The Chinese film industry even made a popular romantic comedy about the practice. 

Having a child that is an American citizen does not, however, guarantee that the child will grow up in America, or allow the family of the child to stay in this country indefinitely. Unless the parents have legal status in the United States, the entire family must return to their home country. It is not until an American-born baby is 21 that they are able to come to the United States and stay without being in school or having to show that they have a legal guardian here.

Once they reach the age of majority, the birthright citizen can enjoy the full benefits of citizenship, and can even sponsor his or her parents’ applications for citizenship.  It is important to remember that having an American-born child is a way to short-cut the system, but will likely take at least 21 years to capitalize on the investment.. In most cases applying for citizenship through other means will be just as fast.