The first question you should ask yourself is, “Have I worked enough to be eligible for Social Security Disability Benefits?” If you have worked most of your life (on the books) and are middle aged or above you, will probably be fine. But if you don’t fall in that category here are some guidelines to consider. You need to have 6 credits earned in the 3 year period immediately preceding your disability if you are under the age of 24. From ages 24- 31, you need credit for 3 years of work out of the 6 years immediately preceding your disability. Anyone 31 to 42 years of age will need a total of 20 credits. And every 2 years after that the credits needed increase by 2. If you are confused about how many credits you would need to be eligible, than you are right along with most Americans today. But if you ask your attorney this question, she will be able to let you know whether you qualify or not after you answer a few questions.

 The next question you need to ask yourself is, “How are credits for Social Security Disability earned?” We know Social Security takes money out of every pay check but how does this money transform into credits? Credits are based on the amount of your earnings. “In 2011, you receive one credit for each $1,120 of earnings, up to the maximum of four credits per year. Each year the amount of earnings needed for credits goes up slightly as average earnings levels increase. The credits you earn remain on your Social Security record even if you change jobs or have no earnings for a while.” (Source: Socialsecurity.gov) 

 Now that you have this information you can decide whether or not you are eligible. So you can apply and just sit back to wait for your monthly checks to start rolling in. Right? Wrong. Most Orlando, Florida, cases take an average processing time of 502 days. (Source: socialsecuritydisability.tv/state-socialsecurity-disability/florida)  And this is just after a hearing has been requested. At the Initial Application and Reconsideration levels, each case can take as long as 7 months to  be processed. The whole process takes about 3 years if done correctly; it can be longer if not.

 The question you need to ask your attorney is: “Are you qualified to do it correctly?”

For more information, please call us at 407-647-7887 or email us at info@cplspa.com

 We all have the idea of living the American Dream. In 1931, James Truslow Adams was the first to express the American Dream as the “dream of a land in which life should be better, richer and fuller for every man, with opportunity for each according to ability or achievement.” According to the Dream, coming to the United States includes the promise of prosperity for the people willing to take the giant leap.

While I truly believe that everything is possible in this country, investing in the United States also means complying with a strict procedure with various authorities. It is very important to apply for the appropriate visa before coming to the United States of America.

There is a wide range of non-immigrant visas frequently used for global mobility assignments. The E-visa category is the most commonly used by Jamaican investors. The E-visa category, also known as Investment visas is designed for business owners, managers, and employees who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the United States and their home country or that represents a major investment in the United States.

E-visa status is available to individual investors with a majority ownership interest, as well as to the employees coming to work in either a supervisory role or a position involving skills essentials to the venture.

There are three basics elements required for the E-visa category to be used.

(1) A treaty must exist between the United States and the Country. Such a treaty exists between another country and the United States conferring E-visa to Investors.

(2) At least 50% ownership or control of the investing or trading company must be held by nationals of other countries.

(3) Home country citizenship must be held by each employee or principal of the company who seeks E-visa status under the treaty.
If the E-visa is used for purposes of conducting trade between the United States and the country of majority ownership of the company, it will be an E-1 visa. However, if the investor wishes to oversee investment in the United States then, he/she will apply for an E-2 visa.

The E-1 visa for traders requires proof of substantial trading activity between the United States and the treaty country. Therefore there are special requirements in addition to the three basics elements of the E-visa category. The trader seeking for an E-1 visa status will have to prove that:

(1) The trading company is engaged in trade. Trade should be understood in a broad sense. The trade can involve the exchange, purchase, or sale of goods or services.

(2) The trade is substantial. The level of trade can be measured by volume, value and frequency.

(3) The trade is principally between the United States and the home country.

(4) The employee or principal serves the company in a specified capacity: either managerial or involving “essential skills.” The skill must be essential to the company’s operation which means that the employee seeking for E-1 visa should be highly trained technician familiar with the company’s products or performing the manufacturing, maintenance or repair of the product.

The E-2 visa requires proof of substantial capital investment that has either already been made or that is in the process of being made when the visa is requested. Therefore there are special requirements in addition to the three basics elements of the E-visa category. The investor seeking for an E-2 visa status will have to prove that:

(1) He/she is making an irrevocable and active investment. The investment must be made in a real operating enterprise. The investment cannot be only speculative.

(2) The investment is substantial. No minimum value threshold is set for the investment. The amount is measured in relation to the total cost of the US business.

(3) The investment will lead to job creation in the United States. It is not enough that the investment will only help the investor to support his/her family.

(4) He/she has a key role in the enterprise. He/she is a qualified manager or specially trained and highly qualified employee necessary for the development of the investment.

The E-visa is granted for an initial period of two (2) years. However, this period can be extended almost indefinitely.

When the immigration process may seem to set obstacles along the way, discouraging investors from making their dreams come true and despite the current economic situation, the United States still represent the biggest market in the world and many areas such as biotechnologies, communications and aerospace should be very attractive to investors. Investing in the United States is a great way to live and achieve your dreams with open eyes.

1. In advance of the first meeting with your divorce attorney, assemble as much relevant documentation as possible. For instance, in a typical divorce case, this would include (at a minimum) complete copies of recent tax returns, pay stubs for both you and your spouse, a detailed list of all assets and liabilities, and any legal paperwork already filed and/or served upon you.

2. Speaking of documentation, organize every piece of paper that you give to your divorce attorney. Documents should be stapled, labeled and assembled in an orderly fashion. Keep in mind that your divorce attorney and his/her staff will do whatever is necessary to organize the documentation that you provide to him/her if you don’t do so. It will, however, take time and cost money.

3. Keep a detailed diary of all significant events pertaining to your case and make sure to share copies with your divorce attorney. A “Week-at-a-Glance” calendar often serves this purpose well. This may be especially important in a custody case. Your memory may fade with time, but a well-kept diary can be used to refresh your recollection prior to and/or during a hearing. Additionally, your divorce attorney can use your diary to assist in preparing your testimony in advance of a hearing.

4. A picture is worth a thousand words. Besides documenting things in your diary, document what you can with photographs and/or videos. For instance, if you decide to move out of the marital residence, take photographs of the condition of the residence and all property that you left behind and provide these to your divorce Attorney.

5. Ask questions. There is no such thing as a stupid question. More often than not, questions from clients are highly relevant and serve as a basis for helping to frame out the issues and develop strategies.

6. If you need to discuss non-legal issues with someone, you may not want to call your divorce attorney. His/her hourly rate is probably much higher than a therapist’s, and the therapist probably is better equipped to handle the issue.  While your divorce attorney may be a very good listener, it will be to your economic and emotional advantage to discuss non-legal issues with your therapist, family members, friends, priest, rabbi, pastor, etc.

7. Do your best to pay your attorney’s bills on a timely basis. If you cannot pay a bill within a reasonable amount of time, call your divorce attorney and ask to work out some payment arrangements. If you are making a genuine effort, most divorce Attorneys will be understanding and work with you.

8. Promptly respond to calls and inquiries from your divorce Attorney. If it was not important, your divorce attorney would not be contacting you. Furthermore, if you are not being responsive to your divorce Attorney, he/she will have no choice but to spend his/her time and your money trying to get a response.

9. When you leave a message for your divorce attorney (either on voicemail or through a secretary) leave your phone number and the time when you will be available to speak. While your attorney likely has your number, it will take less time for your attorney to call you back if he/she does not have to find your number. This is especially true if your divorce attorney is not in his/her office.

10. If you have left messages for your divorce attorney and have not received a response in a reasonable period of time, realize that there is probably a good reason why he/she has not returned your call (i.e., tied up in court or meetings, or handling an emergency situation). If the reason for your call is of an urgent nature, do not hesitate to explain the situation to your divorce attorney’s secretary and/or ask if you can speak with another divorce attorney in the firm.  If your call is not urgent, ask your divorce attorney’s secretary when she expects the divorce attorney to be available so that you can call again or ask if an appointment can be placed in the attorney’s calendar for a phone conference.

11. Do not believe everything that you hear from your spouse, family and friends as it pertains to your divorce case and the laws of divorce. Even though your spouse may act like he/she is trying to be accommodating, the reality is that he/she is likely out to get the best possible result for himself/herself. Similarly, realize that every divorce case is different. Just because your friend’s cousin got a particular result does not mean that you will get a similar result.

12. Do not sign or agree to anything without first speaking with your divorce attorney. Attorneys are usually in favor of parties speaking and trying to reach amicable resolutions between themselves. A divorce attorney, however, can and will help you determine if the terms discussed are in your best interest. There is nothing wrong with telling the opposing party that you need some time to think about it and will get back to them after speaking with your divorce attorney. If the opposing party is pushing you to sign something on the spot, be suspect.

13. Be discreet and resist the urge to deliberately annoy or antagonize your spouse during the divorce process. If you do or say something that you know will annoy your spouse, be prepared for appropriate retaliation. Also be prepared to pay your divorce attorney who will, no doubt, get a call from the opposing counsel when your spouse calls to complain about your behavior.

14. Last, but not least, be candid and truthful with your divorce attorney. Attorneys do not like surprises. If your divorce attorney is well-informed, he/she can be fully prepared to deal with potentially damaging information if and when it is raised by the other side.

For tax years beginning after December 31, 2006, the Small Business and Work Opportunity Tax Act of 2007 (Public Law 110-28) provides that a “qualified joint venture,” whose only members are a husband and a wife filing a joint return, can elect not to be treated as a partnership for federal tax purposes.

A qualified joint venture conducts a trade or business where:

1. the only members of the joint venture are a husband and wife who file a joint return
2. both spouses materially participate in the trade or business (mere joint ownership of property is not enough)
3. both spouses elect not to be treated as a partnership, and
4. the business is co-owned by both spouses (and not in the name of a state law entity, such as a partnership or LLC)
   The QJV option simplifies the filing requirements by allowing husband and wife businesses to be treated as sole proprietorships and file a Form 1040 federal tax return rather than partnerships for tax purposes. It eliminates filing a Form 1065 tax return for qualified joint ventures. The option also helps to ensure each spouse gets proper Social Security credit.

Spouses electing qualified joint venture status are treated as sole proprietors for federal tax purposes. An Employer Identification Number (EIN) is not required for a sole proprietorship unless the sole proprietorship is required to file excise, employment, alcohol, tobacco, or firearms returns when using the rules for sole proprietors. If the spouses previously had an EIN for their partnership, that EIN can only be used if the spouses do not elect qualified joint venture status.

Making the election to be treated as a qualified joint venture

Spouses make the election on a jointly filed Form 1040 by dividing all items of income, gain, loss, deduction, and credit between them in accordance with each spouse’s respective interest in the joint venture, and each spouse filing with the Form 1040 a separate Schedule C (Form 1040), Profit or Loss From Business (Sole Proprietorship) or Schedule F (Form 1040), Profit of Loss From Farming, and, if otherwise required, a separate Schedule SE (Form 1040), Self-Employment Tax.

To make the qualified joint venture election for 2009, jointly file your 2009 Form 1040, with the required schedules. This generally does not increase the total tax on the return, but it does give each spouse credit for social security earnings on which retirement benefits are based, provided neither spouse exceeds the Social Security tax limitation.

Earning Social Security benefits

For purposes of determining net earnings from self-employment, each spouse’s share of income or loss from a qualified joint venture is taken into account just as it is for federal income tax purposes under the provision, in accordance with their respective interests in the venture.
A spouse is considered an employee if there is an employer/employee type of relationship. (i.e., the first spouse substantially controls the business in terms of management decisions and the second spouse is under the direction and control of the first spouse.) If such a relationship exists, then the second spouse is an employee subject to income tax and FICA, Social Security and Medicare withholding.

If your spouse is your employee, and not your partner, you must pay Social Security and Medicare taxes for him or her. The wages for the services of an individual who works for his or her spouse in a trade or business are subject to income tax withholding and Social Security and Medicare taxes, but not to FUTA tax.

Reporting Federal income tax as a qualified joint venture including self-employment tax

Spouses electing qualified joint venture status are treated as sole proprietors for federal tax purposes. The spouses must share the income, gain, loss, deduction, and credit of the business.

If the business has employees, either of the sole proprietor spouses may report and pay the employment taxes due on wages paid to the employees, using the EIN of that spouse’s sole proprietorship. If the business already filed Forms 941 or deposited or paid taxes for part of the year under the partnership’s EIN, the spouse may be considered the “successor employer” of the employee for purposes of determining whether the wages have reached the social security and Federal unemployment wage base limits.
For more information on this topic, please contact Attorney Persad at 407-647-7887 or email him at attorneypersad@cplspa.com.

Additional temporary immigration relief available to Haitian nationals include favorable adjudication, where possible, of requests for change or extension of nonimmigrant status, acceptance of applications for change or extension of nonimmigrant status submitted after the Haitian national’s authorized period of admission has expired, re-parole of Haitian natioals granted parole by USCIS, extension of certain grants of advance parole, expedited processing of advance parole requests, favorable and expedited adjudications, were possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students, expedited processing of immigrant petitions for children of U.S. citizens and lawful permanent residents, and issuance of employment authorization where appropriate.

Also, USCIS will adjudicate favorably where possible applications for change or extension of nonimmigrant status following the expiration of an applicant’s period of admission. B visa non-immigrant visitors can apply for an additional 6 month extension. In cases where a Haitian national is no longer able to extend his or her current nonimmigrant status, favorable consideration will be given to requests for change of status to B-1 or B-2.

Finally, Haitian nationals who are under a final order of removal may be granted a stay of removal. Decisions will be made on a case-by-case basis. Where appropriate, Haitian nationals that receive a stay of removal may be eligible to apply for or receive employment authorization so that they may support themselves.

To find out how we can help you with your immigration issues, call us at 407-647-7887 or email us at info@cplspa.com.

The Internet, however, tends to raise all kinds of issues begging for exceptions to general rules, and such was the case raised recently in the Missouri Court of Appeals in Baldwin v. Fischer-Smith, where the Court allowed Missouri residents to file a defamation lawsuit in Missouri against out-of-state defendants.

For a link to the Court’s opinion, click here.

Earlier this week, the Ninth Circuit issued an opinion resulting from a case where Quixtar, Inc., successor to Amway Corporation, had sued one of its competitors, Signature Management TEAM, LLC (“TEAM”), for allegedly carrying out an “Internet smear campaign” to induce Quixtar’s independent business owners to terminate their contracts with Quixtar and instead join a competing multilevel marketing company affiliated with TEAM.   In re. Anonymous Online Speakers, 2010 U.S. App. LEXIS 14166 (9th Cir. Nev. July 12, 2010)

The alleged “Internet smear campaign” included a set of anonymous blogs of both text and video postings.  At the lower court, during discovery, Quixtar obtained a court order compelling TEAM to identify the anonymous bloggers.  TEAM, arguing that the anonymous bloggers were protected by the First Amendment, appealed the order to the Ninth Circuit.  In response, Quixtar cross-petitioned the Court to order a TEAM employee to reveal the bloggers’ identity.

In the end, the Ninth Circuit held that the bloggers’ identity was not protected from the discovery process.

The Ninth Circuit explained that “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without fear of economic or official retaliation . . . or concern about social ostracism.”  It added that the anonymous speech issue had existed in print materials long before the Internet.  For instance, even the U.S. Constitution has roots in anonymous speech: James Madison, Alexander Hamilton, and John Jay published under the pseudonym “Publius” the famous The Federalist Papers, a series of anonymous essays advocating the ratification of the Constitution.  Online speech, therefore, stands on the same footing as other speech, the Court said. 

However, freedom of speech –anonymous or otherwise – is not unlimited, the Court reminded.  The level of scrutiny depends on the circumstances of each case.  Obscenities, libelous speech, and  “fighting words,” for instance, lack First Amendment protection.  On the other hand, “commercial speech” has some First Amendment protection (generally when not misleading or related to unlawful activity), and “political speech” is offered the greatest protection.

In this case, the blogs had been directed specifically toward Quixtar’s commercial practices and business operations, and were therefore “commercial speech.”  However, the characterization alone does not determine First Amendment protections for anonymous speakers, as the “decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”

The Court also considered a party’s right to obtain discovery.  It looked to another 2010 case, Perry v. Schwarzenegger, where the court had denied the request of a party in a California same-sex marriage suit to obtain internal campaign communications from proponents of a ballot proposition.  591 F.3d 1147 (9th Cir. Cal. 2010).  In that case the court reasoned that, because the communications “would likely have a chilling effect on political association,” greater protection was necessary.

But the TEAM bloggers’s speech was commercial, not political. So the Court looked to other cases that focused on “commercial speech,” but could find little established standards.   

The Court said that the Delaware Supreme Court had, in Doe v. Cahill, established the “most exacting” standard, but it involved political, not commercial speech.  884 A.2d 451 (Del. 2005). Under the Cahill standard, for a plaintiff to discover an anonymous speaker’s identity, the plaintiff must be able to survive a hypothetical motion for summary judgment, such as showing sufficient evidence to establish each essential element of a defamation claim. 

The Ninth Circuit said, however, that “commercial speech should be afforded less protection than political, religious, or literary speech.”

In the end, the Ninth Circuit Court of Appeals agreed with the lower court’s decision to balance a party’s need for relevant discovery with the right to First Amendment protection.  It concurred with the lower court that, “particularly in the age of the Internet, the ‘speed and power of internet technology makes it difficult for the truth to “catch up” to the lie.’”

In conclusion, the court decided that neither Quixtar nor TEAM were entitled to relief. 

First, it denied the anonymous bloggers’ request to vacate the order compelling disclosure of the bloggers’ identity.  It explained that, for discovery purposes, the parties already had a protective order in place that provided different levels of disclosure for different categories of documents, such as disclosure for “Attorneys’ Eyes Only,” which could reduce the harms of disclosure.

Next, the Court denied Quixtar’s motion to compel the TEAM employee to disclose the identity of the anonymous bloggers, reasoning that Quixtar had not offered enough “extraordinary circumstance” to merit the court to grant the motion.

What can bloggers and businesses take from this case? 

Anonymous bloggers should realize a couple of things: First, not all speech is protected.  Second, although their anonymity will usually remain protected – it will not necessarily always be. 

Businesses, on the other hand, should be made more aware of the prevalence of anonymous blogging on the Internet, and that any action against an anonymous blogger may result in a lengthy court action, after which damage may have already been effected.  To monitor the Web, businesses can use tools, such as Google Alerts, which can search for a specific business name to give them updates as others publish content about them.

You can access a copy of the court’s opinion here.   If you have questions about this blog entry, you may email Tee Persad at attorneypersad@cplspa.com

In 1979, when Ms. Ledbetter was hired to work at the Goodyear Tire and Rubber Company in Alabama, she was earning the same salary as the male plant workers. By the time Ms. Ledbetter retired in 1998, however, the wages she was earning were significantly lower than that of her male co-workers. She took her case to Court which held that Ms. Ledbetter’s claim was barred because its statute of limitations had run. Ledbetter v. Goodyear Tire & rubber Co., 550 U.S. 618 (2007).

Congress disagreed with the Court’s interpretation, however, and overturned its decision. It enacted the Lily Ledbetter Act which holds employers liable for compensation discrimination at the time when employers adopt discriminatory practices in the workplace and also when employees are affected by such practices, “including each time wages, benefits, or other compensation is paid.” The effect the Ledbetter Act has is that each time wages are paid to workers, a new statute of limitations begins to run that enables employees to bring claims of wage discrimination. What this effectively means for companies in the U.S. is that they must be able to articulate valid reasons for any pay disparity that may exist among co-workers or otherwise face actions and possible sanctions for employment discrimination.

From its recent actions, it does not appear that Congress will again become dormant in fighting the evils of discrimination in our society. Currently pending in Congress is the Employment Non-Discrimination Act of 2009 (ENDA). If this Act is passed by Congress and then signed by President Obama, it would add protections that many states already have in place. The Non-Discrimination Act would make it illegal for employers to discriminate against employees based on sexual orientation and gender identity. What the Act does not do is require that employers extend spousal benefits to same-sex couples. In effect, this means that employers are not required to treat unmarried couples similar to married couples.

In addition to ENDA, Congress is also considering the Paycheck Fairness Act (PFA). This Act would basically require that when employers face an action of wage discrimination, they would have to prove that any wage discrepancy amongst male and female counterparts is 1) not based or derived from sex-based differential in compensation; 2) job-related to the position in question; 3) and consistent with business necessity.

So what is the lesson to be learned from these recent changes in employment legislation?

Companies should be diligent in reviewing their compensation structures to identify pay discrepancies that may be present amongst their employees. If pay discrepancies do exist, companies must be prepared to articulate non-discriminatory reasons for the differences in pay.

To find out how we can help your company understand and comply with these and other laws, please call us at 407-647-7887 or email us at info@cplspa.com.