Saturday, December 26, 2009

What is Crime Involving Moral Turpitude (CIMT)?

Moral turpitude generally refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed to persons or society in general. See Matter of Flores, 17 I&N, Dec. 225 (BIA 1980), and cases cited therein. It is defined as conduct which is morally reprehensible and intrinsically wrong, the essence of which is an evil or malicious intent. In determining whether a crime is one that involves moral turpitude, one must look to the nature of the offense itself.  See Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979). Additionally, whether or not a crime is a CIMT often depends on whether or not a state statute includes one of the elements that introduces moral turpitude. A crime with the same name may be a CIMT in one state but not in another if the state statutes define the crime differently. Conspiracy to commit a crime considered a CIMT is also a CIMT in itself.
The general categories of crimes which involve moral turpitude contained in this reference guide are as follows:
  • Crimes against a person. Crimes against a person involve moral turpitude when criminal intent or recklessness is an element of the offense, or when the crime is defined as morally reprehensible by state statute, e.g. statutory rape. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon.
  • Crimes against property. Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or an individual. Certain crimes against property may require guilty knowledge or an intent to permanently take property. Theft (petty and grand), forgery, and robbery are CIMTs in some states. Possession of Burglary Tools and Loan Sharking are usually not CIMTs.
  • Sexual and family crimes. It is difficult to discern a distinguishing set of principles which the courts apply to determine whether a particular offense is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent can be a determining factor. Spousal abuse and child abuse can be CIMTs. For example, the Simple Assault, Domestic charge used by some states generally does not rise to the level of being a CIMT. Indecent Exposure and Abandonment of a Minor Child are also not CIMTs in some states.
  • Crimes against the authority of the government. The presence of fraud is the main determining factor as to the presence of moral turpitude. Offering a Bribe to a Government Official and Counterfeiting are CIMTs. Possession of Counterfeit Securities (Without Intent) and Contempt of Court are not CIMTs.

Thursday, December 24, 2009

Good Moral Character-What is it and how it affects Immigrants!

Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization.

The Immigration Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder.

An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:

· has committed and been convicted of one or more crimes involving moral turpitude,

· has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more,

· has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana,

· has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more,

· has committed and been convicted of two or more gambling offenses,

· is or has earned his or her principle income from illegal gambling,

· is or has been involved in prostitution or commercialized vice,

· is or has been involved in smuggling illegal aliens into the United States,

· is or has been a habitual drunkard,

· is practicing or has practiced polygamy,

· has willfully failed or refused to support dependents, and

· has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.

It is critical to consult with an experienced attorney who understands immigration consequences of criminal conviction if one is an immigrant or on path to green card or citizenship. Typically, two lawyers or one lawyer who is fully knowledgeable is needed and hired.

Mechanic's Lien and respective rights of homeowner and contractor

In California, as in most states, any person or company (contractor or sub-contractor) that works on property has a powerful tool to make sure they are paid: the mechanic's lien. Liens are authorized as a matter of right in the California Constitution.

If the property owner does not pay for construction work, the contractor may record a document that gives notice of its Claim of Mechanic's Lien against the property. The document is recorded with the Recorder in the county where the property is located and will be a cloud on title to the property, signifying to the world that a contractor believes it is entitled to draw the dollar amount of its claim from the equity in the property. Depending on the type of contractor and whether the owner has recorded certain notices that construction is complete, the contractor has either 30, 60 or 90 days to record notice of its mechanic's lien.

It is quite easy for a contractor to record the mechanic's lien claim. It simply must prepare the single-page document and present it to the county Recorder along with any recording fees. There is no judge or jury to determine whether the mechanic's lien claim is valid at the time it is recorded. So, as soon as the lien is recorded and without any testing of its validity, a contractor can put a cloud on the property's title that can make mortgage lenders and potential property buyers shy away from the property.
Occasionally, and unfortunately, an unscrupulous contractor may abuse this process. Because the county Recorder will not question the merits of the claim, a contractor could record a mechanic's lien against the property even if the owner correctly believes no money is due and owing.
After recording the mechanic's lien, a contractor in California has exactly 90 days to file a complaint (lawsuit) in court to seek a judgment allowing the sheriff to hold a foreclosure sale on the property and use the proceeds to pay the amount of the mechanic's lien claim. If the contractor does not file the foreclosure complaint within the 90 days, the mechanic's lien becomes unenforceable or "stale." But, even a stale mechanic's lien still will appear on the property's title report until officially expunged and still can cause concerns to the potential buyers and mortgage lenders.
There is a procedure available to property owners that will allow them to remove the stale mechanic's lien from property records. Pursuant to Civil Code §3154, the property owner may file a verified petition seeking a court order acknowledging that that the stale mechanic's lien is unenforceable. The petition must state the following: (1) the date that the lien was recorded; (2) a description of the property; and (3) allegations that no action to foreclose the lien has been taken, no extension of credit has been recorded, the lien claimant is unwilling to execute a release and the owner has not filed for bankruptcy.

The lien claimant must receive service of the petition at least 10 days before the date set for hearing on the petition. Finally, the property owner will be required to prove that service of the petition and the order fixing the date for hearing both were made in compliance with the statute.

When property owners prevail on their petitions, they can recover some or all of their attorney fees from the mechanic's lien claimant.

Once the court order is obtained, the property owner can record notice of the order with the county Recorder, clearing the title. Then any prospective buyer or lender who sees the lien claim in a title report also will see the court order stating that it is invalid.

Thursday, December 17, 2009

Are lenders forcing Americans into Bankruptcy?

Most people are heavily invested in their homes. Investment is of various kinds and types- financial (down payment, monthly payments, monthly upkeep, payment of taxes, etc.), emotional and time. Most people primarily have emotional ties. When they have financial problem, they want to work out a solution.

Loan modification, bankruptcy, debt consolidation, loan workout, etc. are various kinds of solution. Loan modification is one solution which has been most hyped. Government bailout has made it more dramatic. However, I have come across various situations where lenders have made people wait borrowers for loan modification for a long time and later denied it. Or, for instance, lenders are not willing to consider loan modification for 2nd homes.

Lenders can postpone foreclosure. Sometimes they don't. One of the methods to stop foreclosure is to file bankruptcy and get automatic stay protection. Other way to keep the house is to file Bankruptcy-Chapter 13. Chapter 13 is a reorganization plan where the law allows you, upon meeting the threshold requirements, to prepare a payment plan and keep the house. Under the plan, borrower/debtor makes the monthly payment as well as payment on delinquent amount to the secured lender. This plan needs to be approved by the U. S. trustee, no creditor should object and the Bankruptcy Judge has to approve it.

Lot of people, upon denial by the lender seek the protection of Bankruptcy laws. I wonder why lenders can not work something out in situation where the borrower does qualify for Bankruptcy and Chapter 13.

Internal Revenue Service and legal system find someone qualified, based on income and expenses, to file Chapter 13. However, the lender does not. I feel it is a big flaw in the system. Private lenders have too much power, too much discretion and too much of lack of compassion. It sucks!!

The problem is also complicated by the fact that lot of homes have lost their value. Therefore, even if the borrower makes sufficient income, lending guidelines do not allow refinance.

I wish there were universal guidelines (similar to lending guidelines to which licensed brokers had access to) with qualification criteria and people were not made to sweat about decision on loan modification, knew whether they will qualify or not right away and make adjustment to their finances privately and move on with new revised persona and private plan instead of having to file Bankruptcy and ruining their credit.

What are your thoughts!!

Saturday, December 12, 2009

H1b employers-If Immigration comes knocking, what to do?

Immigration Service has been conducting fraud investigations and raiding H1b employers. One of the things, an H1b employer must do and have is Public access files.

H1b Employers must maintain public access files for each employee. Such files must be created within one working day after the day the LCA is filed with the DOL. The file must be maintained at the employer’s principal place of business or the place of employment.

 The public access file must contain:

·     A copy of the certified labor condition application;
·     Documentation which provides the wage rate to be paid the H-1B nonimmigrant;
·     A full, clear explanation of the system that the employer used to set the "actual wage" the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide--e.g., memorandum summarizing the system or a copy of the employer's pay system or scale;
·     A copy of the documentation the employer used to establish the "prevailing wage" for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action);
·     A copy of the document(s) with which the employer has satisfied the union/employee notification requirements of 20 CFR §655.734;
·     A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving "home country" benefits;
·     A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving "home country" benefits;
·     Where the employer utilizes the definition of "single employer" in the IRC, a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status;
·     Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only "exempt" H-1B nonimmigrants will be employed, a list of such "exempt" H-1B nonimmigrants;
·     Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information).

Friday, December 11, 2009

Will-definition and requirements

Will: American Heritage Dictionary provides the following meaning (among others):

  1. A legal declaration of how a person wishes his or her possessions to be disposed of after death.
  2. A legally executed document containing this declaration.
I need not say any more. It is pretty clear, at least in my mind.

A will can be handwritten or typewritten. A handwritten will is known as Holographic will and can be sufficient without any other indicia's. However, the following information must be present:

  1. Identify the testator (person who is writing the Will) fully. We usually also provide address.
  2. Revoke any previous Will or Codicil. A codicil is an attachment to a Will.
  3. Putting a date on the Will or Codicil is important. Last one in time controls.
  4. The testator must be of sound mind. Hence the requirement of two witnesses. Witnesses can prove whether the testator was of sound mind or not or knew what he or she was doing or not. California requires two witnesses.
  5. Holographic will does not need to be witnessed. However, in order to avoid any possibility of any challenges around validity (sound mind, intention, etc.), it is a good idea to do it formally and in presence of witnesses.

  6. Proper age is important. Any adult over 18 can write a will.

A will can be changed or revoked any time. More later…………….!!