Name Change - 2 ways to do it

One caller during a radio show wanted to inquire about Name Change during citizenship interview. He explained that he is a green card holder and is applying for citizenship in two weeks. He wanted to change his name. A friend had told him that he has to change name by filing the petition with name change.

There are two ways to change name:

1. If you are a permanent resident (aka green card holder), you can change your name as part of your naturalization if a court in your area conducts naturalization oath ceremonies. Otherwise no name change can be recorded on your Certificate of Naturalization unless you already changed your name legally (such as by marriage) before completing the naturalization process.

If you decide to change your name, you will be required to complete a Petition for Name Change during your interview. Petitioning the court to change your name may delay the date of your oath ceremony, in some cases. If you petition to change your name, the new name will not be legally binding until after your oath ceremony. The new name will appear on your Certificate of Naturalization. You can start using the new name. No other legal formality is required.

During the last citizenship interview with a client, the interviewing officer at Immigration Service (USCIS) had client sign the form right there and my client will now use her new name and get citizenship certificate with such new name as well.

The U.S. of Citizenship and Immigration Services (formerly known as the INS) does not process petitions for a name change after naturalization. However, you still may change your name after naturalization by other legal means.

2. The other legal method is by filing the Petition for Name Change in Superior Court of California in your local county. The procedure also requires having to publish the Notice of Name Change in a local newspaper for 3 weeks first. And then going before a Judge after furnishing the proof of such publication with the court. A judge conducts a bare skeletal hearing and confirming certain representations in the Petition for Name Change. The judge then signs the Order of Name Change Petition. You can then start using your new name.

True Moral Dilemma with Deep Financial Implications!!

"Sanchez's hospital records state that she was discharged because she was "an undocumented pt (patient) with no insurance."

This is a true moral dilemma! When I read the story here-Doctor's Order: Go to Mexico, I first went on to read up on Hippocratic Oath. I wondered what would guide the doctor in such situation. The Hippocratic Oath can be found here- Hippocratic Oath. Thanks, Wikipedia.

There have been lots of problems which are byproduct of illegal immigration. This is one of them.

Other problem which has been highlighted lately was around children of illegal immigrants coming of age and not being able to participate in regular social and business life. Dream Act failed- read here-.

Keep in mind, Dream Act was first introduced in 2001. Yes, 10 years ago. This only shows the length someone, namely Congress, namely so called Representatives of the People, have been aware of the problem.

Going back to the main point of this blog. The patient should receive healthcare first -for sure!! This is the exact reason illegal immigration should have a permanent solution. Then I think the hospital should have sued the Federal Govt. for reimbursement. Yes, I am just rambling.

Unless somebody wakes up and realizes the long-term effect of this problem on our economy- yes, which involves, dollars, the problem will continue and keep on harming us, like some sort of slow disease!!

Consider stopping Fraudulent behavior!

How about Starting a Petition to Not Commit Fraud or Misrepresentation to obtain immigration benefits?

Goal- not to get in trouble with the law, face embarrassment and embarrass the community, make attorneys rich, make family suffer, etc.! Does someone think of this angle?

Most people will go back to community when they get in trouble with the law. Nobody wants to take responsibility for their wrong actions. For example, a wife beater, a person arrested for driving under the influence, a person who is accused of shop lifting.

I am personally outraged by the hue and cry raised by ankle monitoring of students involved in Tri-Valley University. Check this out- .

Most people make it sound like ICE is committing a crime by doing what they are allowed to do under criminal justice system.

This is what my friend, Harmeet Dhillon, Attorney in San Francisco, CA wrote in an exchange on Facebook "Gentlemen, having worked with white collar defendants recently, in their civil matters, I know that ankle tagging is an extremely intrusive tool but it's used also against US citizens who are white and awaiting trial, if... they have certain risk factors. In addition to the radio they usually have to call in to a probation officer (in federal court) to arrange for permission in advance to move from house arrest or their to/from job roundtrip in order to meet their attorneys. They also have to pay for the cost of the monitoring. It's usually a compromise where the government can present valid reasons for detaining someone (like flight risk, protective custody, etc.) I would say a foreign national against whom the government has presented probable cause that a serious crime has been committed, is a flight risk. This does not appear to be a racial thing to me, just the long and increasingly intrusive arm of the law."

I think we should all consider possibility of:

Not lying for personal gains.
Not committing fraud to obtain immigration, social security or other benefits.
Not condoning such acts by friends or family.

If we all start doing so, people around us won't get into legal problems and we can spend our time, money and energy on other issues instead of living in fear and embarrassment and commoner does not have to help attorneys get rich.

Eb 2 wait for Indian citizens

EB 2 refers to Employment Based Immigration category in 2nd preference. 2nd preference is allocated to intended immigration with Master's degree or higher education.

At the time of filing the application for green card, starting with request for labor certification, a date known as priority date is assigned. Priority date dictates when someone would eventually obtain the green card.

Only 140,000 visas (or adjustment of status applications) for employment based applicants can be granted in each year.

Subject to some adjustment for numbers flowing between categories, only 40,040 visas can be issued for EB2. When an immigrant enters the U.S. as an EB2, with a spouse and two children, four visa numbers are used - not one. The average employment based immigrant family will use between two and three visa numbers. That means less than 70,000 families will enter the U.S. each year as employment based applicants - and fewer than 20,000 families based with EB2 preference category.

Here is a great article by a fellow attorney that discusses the problem very well. Again, read the article here by Attorney Jay Solomon.

K-1 or Immigrant Visa (Green card)

Fiancé Visa known as K-1 is available to fiancés of U. S. Citizens. Typically, upon getting married, U. S. Citizen and spouse want to be together as soon as possible. Hence, pre-planning requires considering all the options- should the U. S. Citizen file for K-1 visa or file an Immigrant Visa Petition by submitting Form I-130 and then later file for fiancé Visa (K-3 visa).

K-1 visa and K-3 visa are totally different. K-1 is available when the marriage has not taken place and the fiancé will enter into the U. S. on non-immigrant visa and marry the U. S. citizen within 90 days. See previous article here.

K-3 visa is available to U. S. citizen spouses, of course after the marriage. It is issued to facilitate the arrival of U. S. Citizen spouses in the U. S. sooner when the immigrant visa petition process could take a long time. I am not sure if it has relevancy these days because USCIS (United State Citizenship & Immigration Service) is processing immigrant visa petitions (filed on Form I-130) rather quickly. However, in the past such visa petitions were slow to process and K-3 visa made perfect sense. It could also make a difference in the future when USCIS might divert its’ resources and I-130 process might slow down. I digress.

Again, K-1 visa is only for those who would like to marry in United States. It is important to note that from a cultural point of view girl's family in lot of countries would like to have the wedding in home country than sending the girl to another country. Different factors ranging from legitimacy of the relationship to social announcement and celebration to emotional aspect of marrying daughter off come into play.

So, it is important to discuss all of these issues among the family and evaluate where they want to do the wedding and which visa needs to be filed. If the wedding must take place in home country, and not in the U.S., K-1 is not an option. K-1 visa can take about 6-7 months in processing including petition adjudication by the USCIS and scheduling interview at the US Consulate. K-1 has to marry within 90 days of entry and apply for adjustment of status. So, the K-1 may lose about 60-90 days after entry and prior to applying for adjustment of status.

It can take about another 6-7 months for scheduling the interview and to approve the case. It means that it can take up to 9-12 months before the K-1 visa holder gets the green card. Another big factor is that parents and other family members who might want to attend the wedding in to the U. S. might not get the visa to come into the U. S. The consulate has the right to issue or deny the visa to parents in the exercise of discretion and there is not much an attorney can do to help. Such visa denial to the parents can really ruin the enjoyment and excitement.

On the other side, if immigrant visa process is followed, the spouse in foreign country may enter directly on immigrant visa within 8-11 months from any consulate and the green card will arrive in the mail within 1-3 weeks of entry. This process is less expensive. K-1 visa holder has to file for adjustment of status (green card) here in the U. S. and spend time and money on filing fees, get biometrics done and wait for employment authorization document for 3 months.

Needless to say, K-1 route is much more expensive and more time consuming to obtain the green card. The K-1 cannot apply for social security card, cannot apply for driver's license or work until receives the work permit, which may take about 60-90 days after you filed the adjustment of status.

K-1 visa is also a non-immigrant visa. U. S. Consulate has wide latitude in using discretion in issuing any non-immigrant visa. They can deny the visa to the fiancé if the Consul is not satisfied with the bona fides of the engagement or relationship overall.

I always suggest a safer and less expensive way to my clients which is to file the immigrant visa petition and wait for your green card turn to come.

K-1 Visa -marry the USC petitioner or go back

How can someone come here on K-1 visa and not marry the U. S. Citizen who sponsored him or her? Wrong question, I guess. In ever fluid relationships among human beings, anything can happen, I suppose. Let me not get carried away restrict myself to the legal side of things.

K-1 visa is a finance visa issued to fiances of USC (United States Citizen). Immigration Service known as USCIS allowed this petition so that the fiances can enter the U. S. sooner to be united with their spouses and resume family relationship. After entry into the U. S., fiance and U. S. citizen have to marry within ninety (90) days though.

If the fiance who entered on K-1 visa does not marry the U. S. citizen within ninety (90) days, then such fiance has to return to the home country.

In a recent case, Kalal v. Gonzalez, Case number 03-71354, Ninth Circuit Court of Appeals, addressed and rejected a number of arguments by Mrs. Kalal who had entered into the U. S. under K-1 visa but did not marry her U. S. Citizen fiance. The court held that Petitioner, who entered the U.S. on a K-1 visa but failed to marry the petitioning fiancé was not eligible for adjustment of status under INA §245.

Mrs. Kalal had made several strong arguments based on caselaw and written statutes (aka law). However, the court rejected them for the simple reason: the Congress passed the law and contemplated the possibility of fiance not marrying the U. S. citizen and did not allow such fiance to obtain permanent resident status by way of marrying someone else.

So, it is important to remember this law and to make sure that either you marry the U. S. citizen fiance who sponsored you or you return to the home country and then obtain new visa, immigrant or non-immigrant, based on new, or shall I say different, relationship.

It is ironic for me to note that Mrs. Kalal had entered the U. S. in June 1996 and her conditional status was denied in 2001. Immigration had made a mistake in issuing her permanent resident status in the first place. However, when she filed a petition to remove conditional status, all the problems started, leading to being placed in removal proceedings and final removal order. The decision by Ninth Circuit Court of Appeals came out recently. So it took a total of fifteen years or so for final the resolution. She can file an appeal with the Supreme Court but it will be a far fetched shot. I am not an expert in Supreme Court Appeals but know that it is pretty high legal criteria and standard.

I am sure a lot has changed since 1996 for her. She must have started a family. But nothing matters-anymore!! A simple decision has played such a havoc in her life. She should have sought and received the right advise at the time and returned to home country and then filed for permanent resident status there. Perhaps she did get the right advise and did not want to return to the home country. Only she knows what happened.

I know that most immigrants engage in following two behaviors- ask family and friend who advise based on their limited experience and 2ndly, they don't want to believe the tough advise. I hate to generalize but these two behaviors are very basic human behaviors. So, I am just stating the facts.

I think her attorney Bart Klein did a pretty good job in making arguments for her.

So, remember that sometimes tough choices in the begining might be good for the long run!!

Qualifications for Chapter 13 Bankruptcy

In order to be eligible for Chapter 13, basic qualifications are:

1) Income and expense test has to be met under what is known as Means Test,

2) Before filing complete the Credit Counseling for Consumers Class. Another class has to be taken after filing and before the discharge,

(3) Have sufficient regular income to meet monthly living expenses allowed by the Chapter 13 Trustee as allowed by the IRS and make a plan payment. If income does not justify or support the Reorganization plan, then trustee will object and the court will not allow confirmation of plan and also not allow BK to proceed,

(4) Have less than $307,675 of unsecured debt, and less than $922,975 of secured debt.(as of April 1, 2004), and

5) Not be a corporation, partnership, stockbroker, or commodity broker.

Loan Modification or Bankruptcy

Loan Modification is the process of changing the loan program which a borrower has. It is a modification of loan contract between the lender and the borrower. It is not a right so to speak. It is really lender’s discretion.

Lenders provide no written acknowledgment of loan modification. Borrowers submit written application and documents to support loan modification. However, follow up and discussions are always verbal. I would argue that it creates an oral contract. It creates a detrimental reliance, at the very least. The situation does create a legal problem. Short of legal dispute, and obtaining records through legal methods in lawsuit, there is no evidence of loan modification.

Lenders also schedule Trustee Sale or Foreclosure date routinely and regularly through loan modification process and continually postpone the sale date in it’s’ discretion while loan modification is pending. Lender does not have to provide written notice of foreclosure date after initial (or very first) notice under the law.

Borrower, in the process of loan modification, should not take it granted that foreclosure shall be postponed again because it has been postponed once before, or many times. Keep in touch with the lender and make sure to be aware of Trustee Sale date and request postponement or you might lose your house. I know of many situations where the lender conducted the foreclosure while borrowers awaited a decision on loan modification.

If you are in such a situation where lender won’t postpone the Trustee Sale date and your income has gone down making it doubtful to begin with and your liabilities are increasing, filing bankruptcy might be a good option. Filing bankruptcy especially Chapter 13 can serve following important functions:

1. It can stay (and postpone) the Trustee Sale. Bankruptcy provides automatic stay for 120 days.

2. It can assist you wipe out consumer debts which decreases your total liability enabling you to be perhaps more eligible for loan modification. Not all lenders offer loan modification to debtors in bankruptcy or post bankruptcy though.

3. Filing Chapter 13 bankruptcy, if qualified, can help you wipe out second mortgage or lower the value of first, if the house value has gone down. Law offers such benefit through a provision called Lien Stripping. Chapter 506 of the Bankruptcy Code provides such benefit. A lien is as good as the value of the collateral. If value has gone down, then the lien is stripped to match the value of the collateral.

4. Bankruptcy allows you to pay the delinquent amount over a period of 3-5 years, depending upon the Chapter 13 Plan.

5. Buy piece of mind and start over.

So, filing Bankruptcy especially Chapter 13 might not be a bad idea specifically where you might not qualify for loan modification at all and face foreclosure. One has to qualify to be able to file for Bankruptcy. So, contact a local bankruptcy lawyer today.

I'm injured. Do I need to hire an Attorney?

If you have been injured in an accident that may have been someone else’s fault , and are still experiencing pain or other physical symptoms, you may want to consider consulting with an attorney.  Sometimes it isn’t clear right away whether your injuries will heal right away or not.  

Insurance claim adjusters generally try to settle claims for as little as possible.  Therefore, if you have been seriously injured or are unsure whether you will completely recover from your injuries, you should consult an attorney before you give any statements or sign papers of any kind. 

There are time limits within which you can file a legal claim, depending on what kind of case it is.  Therefore, if you are considering consulting an attorney, you should do so as soon as possible, so the attorney will have time to evaluate your case and ensure you do not lose your legal rights. 

Personal injury attorneys usually handle cases on a “contingent” or percentage basis, depending on the type, difficulty, and expense of the case.  This means the attorney only collects his or her fee after the case is resolved.  Contingent fee agreements must be in writing and include provisions for the attorney’s  out-of-pocket expenses, which are typically paid by the attorney and reimbursed out of any recovery.

What makes a good personal injury Case?

A strong personal injury case requires proof of both liability and damages. Having one without the other, no matter how dramatic the facts may be, will not bring a successful result.

LIABILITY

There is liability when another person or business entity acted, in violation of the law, in such a way to cause your injuries. An example of such wrongful conduct is running a red light. There must be some evidence that the defendant was at fault, such as witnesses, photographs, or other documents.

It is also important that the plaintiff was not at fault in causing the incident. Other issues to consider include whether the plaintiff may have assumed a risk (were there signs or other warnings the plaintiff should have seen?) or waived liability (did the plaintiff sign any documents that would prevent defendant’s liability?)

DAMAGES

Damages are the injuries you sustained in the incident. They can be physical, emotional and/or financial. It is necessary to prove these damages through individuals with knowledge of your injuries or losses. You can prove damages through medical records and the testimony of doctors who treated you. Not only do you have to prove that you have these damages, you have to prove they were caused by the incident. That is, a doctor has to be willing and able to document that your injuries are directly related to the incident.

The kinds of personal injury damages recognized in California include medical expenses, lost wages or loss of earning capacity, physical pain, mental suffering, disfigurement, physical impairment, loss of consortium, and loss of household services.

COLLECTABLITY

Collectability is when the defendant can pay a judgment. A judgment is what a plaintiff is awarded when he or she wins a personal injury case. It says that someone owes you money. However, a judgment has no value if the defendant does not have enough money to pay the judgment or does not have insurance to cover the judgment. Therefore, In addition to identifying the defendant or defendants who are responsible for your injuries, it is essential that those defendants have liability insurance or is a large enough business entity that they can provide financial compensation for your damages.

TIME LIMITS

The time limits (or statutes of limitation) will vary by the kind of case. In California, a plaintiff usually has two years to file a legal claim for personal injuries. However, the time limits are different in certain cases (for example, if the plaintiff is a minor or the case is against a governmental entity). If you wait too long to bring a legal claim, you will forever lose that right.

I'm injured. Do I need to hire an Attorney?

If you have been injured in an accident that may have been someone else’s fault , and are still experiencing pain or other physical symptoms, you may want to consider consulting with an attorney.  Sometimes it isn’t clear right away whether your injuries will heal right away or not.   

Insurance claim adjusters generally try to settle claims for as little as possible.  Therefore, if you have been seriously injured or are unsure whether you will completely recover from your injuries, you should consult an attorney before you give any statements or sign papers of any kind. 

There are time limits within which you can file a legal claim, depending on what kind of case it is.  Therefore, if you are considering consulting an attorney, you should do so as soon as possible, so the attorney will have time to evaluate your case and ensure you do not lose your legal rights. 

Personal injury attorneys usually handle cases on a “contingent” or percentage basis, depending on the type, difficulty, and expense of the case.  This means the attorney only collects his or her fee after the case is resolved.  Contingent fee agreements must be in writing and include provisions for the attorney’s  out-of-pocket expenses, which are typically paid by the attorney and reimbursed out of any recovery.

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.

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.

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!!

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).

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…………….!!

Basic Steps to Obtaining Green Card-Legally!

1. Get your credentials evaluated. First and foremost step is to get your credentials evaluated. This is the foundational question that needs to be answered- what is your qualification for a certain immigration category and whether you meet the US equivalency or other are qualified for it or not. For example if you are going to get H1b work visa status, your education must be equivalent to US college degree (B.S. degree). If you did not get equivalency to B.S. degree, then instead of filing for work visa perhaps you will need to enroll as student to complete the number of units required to get B. S. degree. And a student visa will be required.

Similarly, if you are filing for L-1 category, your should have, at minimum, worked for the company overseas for at least one year out of last years and a certain business relationship must exist between the international company and US business-among other things. If you do not meet the criteria for L1, however, if you are a national of one the countries which has treaty with the U. S., you might qualify for E-1 visa.

If you don’t meet the criteria, no matter what, you won’t qualify and will hope against hope. You will end up wasting your time and perhaps life. I have seen too many individuals being led to believe that they qualify and they end up filing wrong petitions and paperwork and eventually suffering by getting out of status.

2. Consult an Immigration lawyer. An Immigration lawyer is a specialist in this arena just like any other lawyer or professional. Most of the problems work visa holders is that they rely on co-workers, inexperienced employers or generic information on internet. “My cousin got the visa. Why can’t I get it” or “Let us make some resume up”-kind of mentality can lead you in trouble so an X-ray and the right advise by an Immigration Lawyer would go a long way.

Be prepared to meet the attorney in person. There is lot to be said about meeting someone in person, looking them in the eye and having undivided attention. Be prepared to pay a consultation fees if you want some respect and real attention. It shows your commitment to the process and respect for the professional’s time and experience. You will get the same respect and attention back. Do you like when you get paid, so do the attorneys!

3. Find a qualified employer. Once you know which visa category you will qualify in, then act accordingly and find an employer who is willing to sponsor you and meets the criteria. An employer has to be a qualified employer as well. For example, these days IT consulting companies are not doing well because of downturn in economy and are under high scrutiny. Immigration Agency is investigating about 25,000 of company which typically hire H1b workers to investigate fraud. So, if you are an IT professional, for example, seek an employer who has been in business for a little bit, has good business model (product or service), can provide financial standing and meets the other true business indices. If you are doing MS in Education, you might qualify to work for school or other such non-profit agency.

4. Get the visa and obey the law and rules. Once the visa petition is filed and approved, understand the rules and obey them. A non immigrant visa worker is typically eager to please the employer. The employer sometimes can be eager to save money and cost or make the employer work overtime without paying overtime.

There are several cultural issues which can make an employee feel intimidated. Know your rights and stand your rights. This is United States of America, not a third world country. Stand your ground.

If you or the employer break the law, both will land in trouble. For example, if you are an H1b visa worker and do not get paid regularly or are on “bench”, you are breaking the law and consequences can be serious. Similarly, an employee not providing sufficient breaks or paying employee overtime will be found violating the labor laws. Fines are hefty and can range from denial of green card petition, having to wait out of US for green card for number of years to monetary fines to jail time. Is it worth it?

5. Plan ahead for the next step. Know your goal. If you goal is to work temporarily and return to your country after sometime, that is fine. However, if your goal is to get green card, then you need to plan ahead. Know the processing time for visa petition type you will qualify under. Most people keep hopping jobs until last year of work visa. During the last year or so, they try to find an employer who can sponsor for green card and end up missing filing deadlines which would enable to them to extend the visa. It is extremely difficult to return to your home country after you have been here for a while.

A change in economy overall or financial and business conditions of employer can also result in a predicament. For example, if someone starts ahead of time in green card application through the employer, he or she can obtain 3 year visa extension on H1b while waiting for green card final step as contrasted with someone else who will have to get yearly extensions.

None of the factors I have stated are rocket -cience. I am stating the obvious. However, most people don’t want to know the simple truth. People get desperate and they go down this unending cycle of false hope, lies on immigration paperwork risking their peace and freedom. Please be realistic and follow the law.

Can lender come after the Borrower for deficiency in a foreclosure?

Most people think that their liability is limited by the security interest and if property is foreclosed they are not liable. This articles intends to clarify the (mis)understanding.

The answer is- depends. It is not a lawyer like answer. The answer really depends on whether the loan the lender had given on the property being foreclosed was a purchase money loan or a refinance loan.



If the loan the lender had given against the property was a purchase money loan, the anti-deficiency laws prevent the lender from being able to file a lawsuit for the deficiency.

However, if the loan the lender had given against the property was a refinance loan, the anti-deficiency laws allow the lender to file a lawsuit for the deficiency.

The logic is that in a refinanced loan, the borrower was able to find better loan terms or perhaps took the equity out and used it to his or her benefit. So, there is a presumption of added benefit thus allowing lenders to recover the deficiency amount.

The deficiency amount is the difference between the loan amount and amount of money recovered by the lender after foreclosure.

Purchase money loan is the original loan obtained by the borrower at the time of purchase of the property.

Refinance loan is the loan obtained by refinancing the loan to get better loan terms (interest rate, amortization period, etc.) or to take cash out for personal use or to pay off other debts.

Lot of people bought the property to get their foot in the door and got a low interest rate, mostly negative amortization loan. Later, they refinanced the loan when the property went up in value. It was easier. Lenders did not care because it is profitable business. Lenders, loan brokers, appraisers, escrow companies-everybody made money. Now, these people, if facing foreclosure, can be liable for the deficiency amount.

Lot of people know about One Action Rule and think that lender can not bring claim for deficiency. One Action rule is provision of law under California Code of Civil Procedure. Basically, it forces a lender to choose between foreclosure and judicial action which combines foreclosure and deficiency judgment. So, as the name suggest, lender has to decide which (one) form the lender will chose.

The primary method of foreclosure in California involves what is known as non-judicial foreclosure. This type of foreclosure does not involve court action. If a foreclosure is completed by non-judicial means, a second action to recover a deficiency judgment is not permitted. However, rules stated above apply under the case law that if the loan is refinance loan, the deficiency action can be brought. Most lenders will negotiate the amount though and settle for less. This can be an opportunity to negotiate the debt down.

Plan your Affairs-simple ways to avoid Legal fees, taxes and Legal costs

Legal fees are incurred when attorney gets involved or a matter has to be handled in court. Typical example is Will-contest or probate fees (attorneys fees and court fees) in Probate Court.

Taxes are incurred when someone has poor estate tax planning or no estate tax planning. Estate taxes are due nine (9) months after the death and have to paid in cash. No installments. The Estate Tax is a tax on your right to transfer property at your death. Assets have to be sold at the value they can fetch in “fire-sale”.

Legal costs such as probate fees etc. again are incurred when there is poor or no estate planning.

Here are some of the simple ways to avoid legal fees, costs and taxes (estate taxes or gift taxes).

1.       Do not die without a will. At least have a will. No will (for estate worth $100,000 or more) = Probate-for sure. Even a will does not avoid probate but it can give some direction to probate court and help move things along much faster. Something is better than nothing.

2.       Take benefit of tax laws and codes which allow lot of tax savings and cost savings by forming revocable living trust. Revocable Living Trust allows one to take benefit of federal unified tax credit system and save money on legal fees and costs. It also ensures privacy.

3.       Write out your health care and financial affairs power of attorneys which will help deal with your affairs in the event of a disability rendering you incapable of handling your own affairs. Designate someone who is capable of handling the affairs properly. Base your designation and appointment of your agent on competency and not emotion.

4.       Title your accounts properly. If you have a checking account with your son or daughter and there is not much money in the same account, designate it as payable upon death to make the transfer easier.

5.       Give gifts. Of course, everybody cannot or does not need to give gifts; however, gift tax planning is definitely required for individuals with large estates to take benefit of unified tax credit system. Proper gifting on annual basis can go a long way.

6.       In the event of a business, make sure to properly insure it and have provisions of its continuity. This is critical in the case of partnerships, for example, to express your desire about how the business will continue in the event of one partner’s death. Buy-sell agreements or 2^nd to die policies are great way to make up for the loss and ensure smooth continuity of the business.

7.       Benefit from Asset Protection strategies to avoid lawsuits or potential liability.