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JUNE 2010: WELCOME TO THE NEWLY DESIGNED NEWSLETTER AND WEBSITE FOR TROW & RAHAL, P.C.

Welcome to our newly designed monthly newsletter. Our aim is to provide you with more in-depth articles on hot topics in immigration law.

What you'll find below: Scroll down to find two feature articles – one by Steve Trow, who offers insightful information on the intersection of immigration and tax planning for high net worth clients; the other, by Linda Rahal, who delves into the controversial Arizona immigration law. As always, we continue to provide you with important Immigration Updates on the law each month (see the column to the right for that information).

About our new website: We are also excited to announce the launch of our new website, www.trowrahal.com, which contains more comprehensive information about our services, as well as visa options and immigration regulations. You'll find updated content on our key practice areas including: visas for hiring foreign nationals, visas for athletes and entertainers, visas for high net worth clients, avenues for obtaining permanent resident (green card) status, copies of our recent newsletters, and testimonials from our clients.

We appreciate your comments and feedback. We are looking forward to helping you with all of your immigration-related needs.

With warm regards from all of us at Trow & Rahal,

Steve Trow, Attorney / Owner / Founder, strow@trowlaw.com
Linda Rahal, Attorney / Owner / Founder, lrahal@trowlaw.com
Cynthia Hemphill, Attorney / Owner, chemphill@trowlaw.com




UNDERSTANDING TAX IMPLICATIONS IN IMMIGRATION LAW: Steve Trow provides information on immigration planning for high net worth clients

By Steve Trow, Attorney / Owner / Founder
strow@trowlaw.com
June 2010

This article is the first in a series directed at high net worth clients and their professional advisors – accountants, attorneys, bankers, financial planners and trust officers. The focus of these articles is the intersection of U.S. immigration law and U.S. tax law. This can be a dangerous intersection, where clients who are looking in one direction can get run over by something coming from the other direction.

Understanding the Issue

Unlike many immigration attorneys, we have decades of experience crafting creative immigration plans for high net worth clients. U.S. immigration planning for high net worth clients is challenging because immigration lawyers and tax advisors often have different perspectives. Immigration lawyers generally think that getting U.S. permanent resident (green card) status is good; tax advisors warn clients that the price of a green card is U.S. taxation of their worldwide income.

Immigration lawyers generally think that U.S. citizenship is better than permanent resident status; tax advisors may have clients who wish to renounce their U.S. citizenship. Immigration lawyers like to tell clients they can stay as long as they please in America; tax advisors tell them to count their days in America and try to stay below the "substantial presence" threshold for U.S. tax residency. Immigration lawyers are eager to help clients hang onto U.S. green card status if they move abroad; tax advisors may suggest they get rid of it.

Many immigration lawyers see their role as putting clients on an escalator that only goes up. Start as a visitor or student. Get a nonimmigrant (temporary) visa that provides work authorization. Get permanent resident status – a "Green Card." Apply for naturalization to U.S. citizenship. Live happily ever after in America.

With tax concerns in mind, immigration planning looks more like an elevator.

Go to the floor that has what you need – visitor, student, temporary work visa, permanent resident status or U.S. citizenship. Stay there as long as it suits you. Don't assume that a higher floor will suit you better. The elevator goes down as well as up – there may be good reasons to give up permanent resident status, or to give up U.S. citizenship.

Some clients should avoid permanent resident status by using a nonimmigrant visa to reside and work in the U.S. Why? They can stay below the "substantial presence" threshold for U.S. income tax on foreign source income, or become an "exempt individual" who is not subject to the substantial presence test. They can avoid the mark-to-market "exit tax" upon departure from the U.S., or defer exposure to the exit tax by avoiding "long term residence." If you are not familiar with these tax law concepts, ask your tax advisor to explain them. Trow & Rahal cannot give you tax advice, but we can work with your tax advisor to achieve these objectives.

What sort of client can stay below the "substantial presence" threshold? Click here to read more.




INSIDE THE LAW: Linda Rahal Delves Into Arizona's New Immigration Law

By Linda Rahal, Attorney / Owner / Founder
Trow & Rahal, P.C.

Immigration has been an even hotter topic than usual since April 23, when Arizona Gov. Jan Brewer signed into law Arizona Senate Bill 1070, Support Our Law Enforcement and Safe Neighborhoods Act.

In fact, almost everyone, it seems, has an opinion about the law – including Miss America Pageant contestants. Just last month, a pageant judge asked the runner up contender from Oklahoma whether she thought the law was, in essence, about ethnic profiling.

She said, "I'm a huge believer in States' Rights. I think that's what is so wonderful about America, and think it's perfectly legal for Arizona to create that law. But I'm against illegal immigration, but I'm also against racial profiling, so I see both sides of this issue." View her response on YouTube.

Here in the nation's capital, a second grader in Maryland asked First Lady Michelle Obama, who was visiting her school, what would happen to her mother if she doesn't have the right papers.

"My mom … she says that Barack Obama is taking everybody away that doesn't have papers."

Mrs. Obama replied: "Yeah, well that's something that we have to work on, right? To make sure that people can be here with the right kind of papers, right? That's exactly right."

The girl said: "But my mom doesn't have any …"

Mrs. Obama replied: "Well, we have to work on that. We have to fix that, and everybody's got to work together in Congress to make sure that happens. That's right."

Since that comment, many have asked whether sufficient "reasonable suspect" would have been raised to arrest the child's mother if she had been in Arizona under the new Arizona law.

Understanding the Law

These are just some of the issues raised by the Arizona law. To assess what the law allows, it is necessary to read what the law says. There was a first draft of the law, and then there is an amended law.

The first draft of the law said:

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

In fact, this first law was quite broad as it referred to "any" law enforcement official or agent of the state or county or city or town or other political subdivision shall make a reasonable attempt to assess immigration status where there was any lawful contact.

This would presumably include someone coming forth as a witness to a crime, or talking to a crossing guard, or any similar daily contact with a state or local agent.

The law was subsequently tightened up and the amended reads:

For any lawful STOP, DETENTION OR ARREST made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE OF A COUNTY, CITY OR TOWN OF THIS STATE where reasonable suspicion exists that the person is an alien AND is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

Any person who is arrested shall have the person's immigration status determined before the person is released. . . . A law enforcement official or agency. . . may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.

The amended version is definitely tighter, but it doesn't resolve all of the controversy. For instance, consider the example above of a crossing guard. If the guard stops someone from walking against his direction, is that a lawful stop? Is the crossing guard a law enforcement official?

I don't know the answer to this, but it highlights the fact that some questions still exist with regard to how the amended law is written.

Other Questions to Consider

As I read through this law, several questions come to mind that I feel need to be addressed.

  1. What is really a STOP under the law? Presumably, this could be for jaywalking or trespassing, if that is an offense under state, county or municipal law in Arizona. Who gets stopped for these offenses? Probably not everyone, but they can be used now as a means to check the legal status of someone.
  2. What is reasonable suspicion that the person is an alien AND is unlawfully present in the United States? Is the fact that a person is not carrying a driver's license or other I.D. sufficient for reasonable suspicion? It seems to be under this law.
  3. Another concern is having police or a law enforcement official of the state, county, city, town or other political subdivision within Arizona check the lawful status of the people stopped. The law indicates that a person will be presumed legal if they can present any of the following:
    • valid Arizona driver license;
    • valid Arizona non-operating identification license;
    • valid tribal enrollment card or other form of tribal identification;
    • valid U.S. federal, state or local government issued identification.

There are so many other types of documents that can be shown to establish lawful status in the U.S. However, many of them are somewhat obscure, such as a receipt to show that you have an application to adjust status to permanent residence pending with the U.S. Citizenship and Immigration Service (CIS); or you have a receipt to show that your request for an extension of your nonimmigrant visa status is pending with the CIS.

Click here to read more.




IMMIGRATION UPDATE: June 2010

State Department Raises Consular Fees for Nonimmigrant Visa Applications

Effective June 4, 2010, the Department of State (DOS) raised its visa fees for applications for all nonimmigrant visa types. This includes applications for visas such as H and L that first require filing a visa petition at the U.S. Citizenship and Immigration Services (USCIS).

The DOS raised the fee for this type of visa category from $131 to $150. Other increased fees include nonimmigrant visas that are applied for directly at the U.S. Consulate, such as a B-1/B-2 business or visitor visa, which the DOS raised from $131 to $140, and E nonimmigrant visa fees, which the DOS raised from $131 to $390.

The interim final rule is available at edocket.access.gpo.gov.

E-Verify Redesign Requires New Tutorial

On June 13, 2010, the U.S. Citizenship and Immigration Services (USCIS) implemented its redesign of E-Verify "to enhance its usability, security, accuracy and efficiency." The USCIS indicates that its goal is to provide an interface with a clean and modern design, easy and intuitive navigation, and clear and simple language. Existing user IDs and passwords will not change.

According to the USCIS, the homepage will have a new look to make signing-in easier, with simplified terms. One of its potentially better features is that the USCIS has created only three steps to verify employment eligibility in most cases. Additionally, the USCIS indicates that E-Verify will prominently feature case results with direct links to the history of a case. E-Verify will also provide case alerts for cases needing closure, those with updates, and those where work authorization documents are expiring. This latter feature permits the USCIS to remind the user to update work authorization before the authorization expires. A company will be able to view its Memorandum of Understanding (MOU) directly on-line.

New user manuals and quick reference guides for the updated E-Verify system should be available some time in June 2010. The user will need to complete a required tutorial, taking about 20 minutes, the first time s/he uses the system after the new website launches.

The official USCIS announcement can be found at www.uscis.gov.

USCIS Revises Employment Authorization Document

The U.S. Citizenship and Immigration Services (USCIS) announced on May 25, 2010, that it had revised the Employment Authorization Document (EAD) (Form I-765) to incorporate the addition of a machine-readable zone on the back of the card.

The revised card retains all of its existing security features. According to the USCIS, the change is made in their ongoing efforts to deter immigration fraud. The USCIS began issuing the revised EADs on May 11, 2010.

USCIS's announcement, which includes pictures of the old and new EAD cards, is available at www.uscis.gov.

USCIS Implements Business Verification Program ("VIBE") To Validate Employer Info

The Office of Public Engagement for the U.S. Citizenship and Immigration Services (USCIS) held an information-sharing session on May 27, 2010, concerning a new web-based tool called "VIBE" (Verification Initiative for Business Enterprises). VIBE will use commercially available data from an independent information provider (IIP) to validate and verify information submitted by organizations that file visa petitions to employ foreign national employees, such as H-1B and L-1 visa petitions. The USCIS hopes to implement this tool later this year, with the stated goal of bringing uniformity and consistency to the processing of employment-based immigrant and nonimmigrant petitions.

The USCIS indicates that VIBE will provide it with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers, along with other information about the company, such as the type of business and number of employees. The USCIS awarded a $35.5 million contract to Dun & Bradstreet to act as its IIP to provide commercially available data.

The USCIS believes VIBE will enable it to acquire information which it can use to verify the eligibility of a company, and also to detect misrepresentations. However, there are no controls over whether the information may be outdated or inaccurate. An increase in already burdensome Requests for Evidence (RFEs) is almost certain. As part of VIBE, it appears the USCIS may run checks on the "financial viability" of companies currently enrolled in E-Verify, as well as those enrolling in E-Verify in the future.

DHS Eliminates Paper Arrival/Departure Form for VWP Participants

The Department of Homeland Security (DHS) announced on May 20, 2010, that it would eliminate the paper arrival/departure form (Form I-94W) for travelers coming to the United States under the Visa Waiver Program (VWP) with an approved Electronic System for Travel Authorization (ESTA). This means that travelers will not have to fill out the paper I-94W on the airplane.

The VWP enables travelers from certain countries to come to the United States without a visa for a period not to exceed 90 days. U.S. Customs and Border Protection (CBP) will activate automated processing using ESTA for U.S. airports on a rolling basis over the next several months. Applying for an ESTA became mandatory on January 12, 2009, for all nationals of VWP countries before boarding a carrier to travel by air or sea to the United States.

CBP recommends that VWP travelers submit ESTA applications as soon as they begin making travel plans. ESTA applications may be submitted at any time before travel. Approved ESTA applications are valid for two years or until the applicant's passport expires. CBP has received more than 19 million ESTA applications from citizens of VWP countries.

The DHS announcement is available at www.dhs.gov.




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