Archive for January, 2010

Choice of Forum – Deciding where to sue American Airlines, in Jamaica or the United States

Tuesday, January 19th, 2010

In December 2009 many passengers were injured in an American Airlines crash at the airport in Kingston, Jamaica. Liability, or whether or not the crash was caused by pilot error, mechanical failure, or any other reason is likely to be one of the main issues in any suit brought by victims of the crash before the amount of damages suffered by the victims will be considered. However, before the issues of liability or damages may be considered, any court in which the claim is filed may first have to deal with the issue of jurisdiction and venue. Is the suit filed in the right country, right state and in the right court?

Issues of jurisdiction and choice of forum depends on many factors. However, the primary factors are easily identifiable and can and should be considered by the injured and their attorneys at the early stages of the case. Jurisdiction in the United States is divided into two areas, personal jurisdiction and subject matter jurisdiction. Personal jurisdiction is the court’s authority over the parties in a case, whereas subject matter jurisdiction is the court’s jurisdiction to hear the subject issues of the case. Victims of the crash in Jamaica can either bring their case in the courts in Jamaica or the United States and either court system will have jurisdiction over them as plaintiffs, and over American Airlines as it does business in both countries and can expect to be held accountable in either place.

Subject matter jurisdiction is a bit trickier. While there may be little doubt that the Jamaican courts have subject matter jurisdiction over any claims that the victims can bring against American Airlines, some victims may want to file a claim in the United States for many reasons. For example, the court system in the United States may process the case faster than the Jamaican courts, the jurisprudence may be more settled and easier to navigate in the United States, and the likely to resolve the case may be greater in the United States. Others may choose to file their claim in Jamaica for other reasons. Before this decision is made, a thorough analysis of the benefits of each system should be made by the attorney and explained in clear easy to understand language to the victims so that an informed decision can be made by the victims.

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Jamaican citizens investing in the United States of America…Living the American Dream

Tuesday, January 19th, 2010

The United States of America is a very popular destination for Jamaican citizens. Many of us see the United States as the land of opportunities. 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 Jamaica 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 Jamaica and the United States conferring E-visa to Jamaican Investors.

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

(3) Jamaican 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 Jamaica.

(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.

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Temporary Immigration Relief Measures for Haitian Nationals

Tuesday, January 19th, 2010

In an effort to assist Haiti following the devastating earthquake that struck on January 12, 2010, the United States Citizenship and Immigration Services (USCIS) will provide certain temporary immigration relief. The Secretary of the Department of Homeland Security, Janet Napolitano, has announced the designation of Temporary Protected Status (TPS) for Haitian nationals who were in the United States on the day the earthquake struck. This designation will allow eligible Haitians nationals to continue living and working in the United States for the next 18 months.

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.

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Defences to Dog Bite Claims in Jamaica, West Indies

Saturday, January 16th, 2010

While the law creates strict liability for injuries caused by dogs, as all that is necessary is for the party suffering from a dog bite is to show that the fact of the injury and that the person is the owner of the dog, it does not create absolute liability in that the owner or deemed owner of the dog has Defences which he may raise.

The owner or deemed owner of a dog may, in his Defence, raise the point that the person who was bitten was a trespasser on the premises. A person is a trespasser on premises if he was not given permission to be there, for eg. a burglar. If he is bitten by a dog on the owner’s premises then he is taken to have consented to being injured as the owner would then have no responsibility to keep the dog chained or away from a trespasser who had no right to be there. Naturally if a person is invited to the premises, then the owner will be liable for any injury caused as he has a duty to his guests to ensure their safety.

Contributory negligence may also be a Defence raised by the owner or deemed owner of the dog. This Defence entails showing that the person injured contributed to his own injury. This means that the injured party either did something or did not do something which partly caused the dog to bite him. This could take the form of children, or even adults, teasing a dog or a person ignoring a sign that there are dangerous dogs on the premises.

Another Defence available to the owner or deemed owner of a dog is that the injury was caused by the act of a stranger or the act of an intervening third party. This may take the form of another person untying a dog thereby causing it to escape and bite a person either on or off the premises. It may also include a person leaving the gates of the premises open and the dog leaves and bites someone on the road. This Defence is only available however if the owner can show that he had done everything reasonably possible to prevent third parties from meddling with the dog and thereby causing the dog to injure another person.

An owner or a person who could be deemed the owner of a dog should therefore take due care that his dogs are either kept within the gates of his premises or if there are visitors they should ensure that the dog is chained or kept in a place away from any visitors to the premises. In all the circumstances those who seek to enter premises that have dogs should take extra care. Indeed, a word to the wise is sufficient.

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