Saturday, May 18, 2019



YESTERDAY’S APPELLATE COURT DECISION ON DACA. What does it mean for DACA-recipients?

Yesterday the Fourth Circuit Court of Appeals in Maryland told the Trump Administration it acted without legal basis when it sought to closed down DACA.  The Court found the Administration’s closing of the DACA program “arbitrary and capricious”.  The government failed to "give a reasoned explanation for the change in policy, particularly given the significant interests involved” states the opinion. 


Here’s a summary of where DACA stands now and where things go from here:

The Fight over DACA and today’s Decision.

On September 5, 2017, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals.  While that case was pending, two other federal judges issued similar injunctions against Trump.

Last year, the Administration asked the U.S. Supreme Court to expedite its review of these rulings but the Supreme Court refused.  In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals, where the Administration lost. 

Yesterday, another Circuit Court – the Fourth Circuit Court in Maryland -- ruled in favor of the DACA recipients and against the Trump Administration by a 2-1 vote. 

What does this mean for DACA?

This decision means does not have an immediate effect on the current state of DACA, except that it further frustrates Trump’s efforts to close it down. 

The Supreme Court did not consider this case during the current term, which means that the earliest it would hear arguments on the DACA law is next fall.  It is therefore unlikely a decision by the Supreme Court would be issued until next summer, during the 2020 Presidential campaign.

For now, persons who already have DACA can continue filing renewals.  We recommend that applicants do so 150 days before their DACA expires.

Unfortunately, new applicants are still not eligible. 


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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and Sacramento.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 10 years, he has been honored as one of Northern California’s top lawyers by San Francisco Magazine, “Super Lawyers” edition.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.




Saturday, May 4, 2019



UNDERSTANDING THE CHANGES DONALD TRUMP JUST PROPOSED TO ASYLUM PROCEDURE.  
The Trump Administration just announced its plan for new regulations to further restrict the rights of asylum seekers arriving at the U.S.-Mexico border.  These newly announced plans would further limit the legal rights of asylum seekers, accelerate their deportation procedures making it difficult for them to defend against deportation, limit their right to work while their cases go forward and charge them a fee for applying for asylum. 
Here’s a brief summary of what those new proposed changes would do: https://www.linkedin.com/pulse/understanding-changes-donald-trump-just-proposed-asylum-kerosky
(To read about what steps the Administration has taken previously to limit asylum and restrict legal immigration, and California’s efforts to fight these proposals, see: https://www.sonomacountygazette.com/sonoma-county-news/immigration-stories-by-christopher-kerosky-may-2019)
All of these changes would significantly change the asylum procedures set up 40 years ago by Congress when they passed the Refugee Act of 1980 setting up the asylum system.   

1. Limiting Options in Deportation Proceedings

Asylum seekers at the border already have to pass detailed interviews to convince a federal officer that they have a “credible fear” of persecution in their home country based on race, religion, political opinion, or social group.  Now. Trump proposes putting them into special deportation court proceedings, which would limit their options for rights to request other relief-- for example, denying them a right to stay based on marriage to a U.S. citizen.

2. Accelerating Deportation Proceedings

Trump also proposes that all asylum cases to be heard within a six-month period except in “exceptional circumstances.” The problem is that this would make it harder for asylum seekers to get a lawyer, obtain all the documents from their home country to prove their case and prepare for their deportation hearing properly. 
3. Charging a Fee to Apply for Asylum
Applying for protection has been free since ever since the Refugee Act of 1980 created the procedures almost 40 years ago. Under Trump’s new plan, asylum seekers would have to pay a fee to apply.  For people fleeing their country with little or nothing, this would cause more people to abandon their asylum claims.

4. Banning Work Authorization

Under the current rules, asylum applicants can obtain the right to work legally while they wait for a final decision on their application.  Under the new rules, most recent asylum seekers would be banned from getting work authorization. This would deny them the right to legally work while going through the asylum process. Clearly this would make it more difficult for them to survive in the U.S. while they try to prove they would be persecuted if they go back to their home country.

Sunday, April 28, 2019



E1 VISAS: TREATY-TRADERS

By Christopher Kerosky, Esq.


Certain countries have treaties with the U.S., nationals of that country may enter the U.S. for the purpose of directing and developing the operations of the enterprise (E-2) or for the purpose of conducting trade (E-1). 
The requirements of the E1 visa are as follows:
  • Citizenship of a Treaty Country.  The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country. At least 50 percent of the business must be owned by persons with the treaty country’s nationality.
·       Substantial Trade. The international trade must be substantial, meaning that there is a sizable and continuing volume of trade.
·       Trade must be between U.S. and Treaty Country. More than 50 percent of the international trade involved must be between the United States and the treaty country.
·       What is Trade? Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
·       Must be Executive, Manager or Essential Employee. You must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

Am I eligible for an E-1 visa?

You may be eligible for an E-1 visa if you are an entrepreneur, manager or employee who needs to live in the US to oversee a company that is involved in substantial and principal trade.

What can I do on an E-1 visa?

As an E-1 visa holder you can:

·       Work legally in the U.S. for the petitioning U.S. company
·       Travel freely in and out of the U.S.
·       Stay in the U.S. with unlimited two year extensions as long as you maintain E-1 status
·       Bring your dependents to the U.S.
How long can I stay in the U.S. on an E-1 visa?

Visas are typically given for two years with unlimited five year visa extensions or two year status extensions as long as you maintain E-1 status.

How does One apply for the E-1 visa?

If the applicant is outside the U.S., he or she can apply directly at the Consulate.  An application with the Immigration Service first is not necessary, as it is with some other visas. 

Can I apply for a Change of Status

If the applicant is in the U.S., he or she can apply for a change of status without leaving the U.S.

Can I bring my dependents on an E-1 visa?

Yes, you may bring your spouse and unmarried children under the age of 21 years to stay along with you. They may stay in the U.S. as long as you maintain your E-2 status.


WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.


Thursday, April 11, 2019



OPENING A BUSINESS IN CALIFORNIA: Part 3

Obtaining a Federal Tax I.D. Number

This is the third in a series of articles written for the purpose of assisting persons who intend to start a business in California.  It is designed for the small business owner who may not be familiar with California law or procedures.  In the last article, I discussed registering one’s business with the County by filing a fictitious business name statement.  In this article, I will describe the process of getting a federal employer identification number and opening a bank account. 

Third Step: The Federal Employer Identification Number.

The federal employer identification number (EIN) is a 9-digit number assigned to  corporations, partnerships, sole proprietorships estates, trusts and other entities for tax filing and other purposes.  As a business, an EIN is necessary before you can hire employees, pay taxes and even open a bank account.  Moreover, the federal employer identification number is often easier to get than a social security number and some foreign nationals use it instead of a social security number.   Although not approved by the government, it is sometimes used as a way around the difficulty that non-citizens who are self-employed and cannot obtain social security numbers.

The federal employer identification number is your business’ form of identification with the government.  It is the number listed on the federal tax return for your business.  It is also listed on the employee payroll reports the business files with the federal government, if you have employees.  And you may wish to give this number – rather than your social security number – to the bank to associate with your business bank accounts.

A business entity needs only one EIN, no matter how matter different types of business it does or locations it has.  However, if a sole proprietor or partnership incorporates, it needs to obtain a new EIN.

Contrary to many mistaken beliefs about employer identification numbers, they do not result in higher taxes or any special fees for businesses who obtain them.  The process of getting one is free and does not require a lawyer.  Moreover, they are required by law for most businesses.  Partnerships, LLCs, and corporations need employer identification numbers whether they have employees or not.  Only sole proprietors with no employees do not need employer id numbers because they can use their own Social Security number instead.

The federal employer identification number is obtained through the Internal Revenue Service (IRS).  There are three ways to get the EIN: on line, by fax or by mail. 

To get the number on line, simply go to www.irs.gov/businesses.  Click “Employer ID Numbers” under “Topics”.  Follow the easy instructions stated there.  You can obtain a EIN immediately. 

The IRS has also set up an easy system whereby you can get your employer identification number by phone.   You simply call the special IRS telephone number set up for this purpose.  You need to prepare the application form in advance – it is IRS Form SS-4.  The person calling must be authorized to sign the form or be an authorized designee of that person.  When you call the IRS, you simply provide the pertinent information from the IRS form and you will get your federal employer identification number immediately, over the phone.  Then you simply send in the completed SS-4 form or fax it to the IRS Service Center with the employer identification number filled in on the form.

As mentioned above, the federal employer identification number is sometimes used by immigrants in business here who cannot obtain a social security number.  As most foreign nationals know, the U.S. Social Security Administration has greatly limited the ability of non-citizens to get a social security number now.  Permanent residents can get them, as can persons on temporary visas which provide the right to work in the U.S. during the pendency of the visa.  But for persons on temporary visas, the card states: “Valid Only with work authorization”.  Persons here on tourist visas, business visas and most student visas cannot get a social security card, as of course, those persons who are here without status. 

The EIN can be obtained by persons who have a business here in lieu of a social security number.  This is often used by persons without a social security number to open a business, open a bank account and pay taxes.  While the government does not condone this behavior, it is widely done.

 In short, the federal employer identification number is an easy-to-obtain, useful and even necessary tool for any business in California.  It should be one of the first steps you take when starting your business.


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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for over 25 years and has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and 7 other locations in California. 

Saturday, April 6, 2019


It took only five days for the yearly visa quota for the H1b professional visa to be used up this week. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2020.
So what are your options if you or your employee have submitted your H-1b application in time?  What if you are not eligible for an H-1b visa?
This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.
F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H-1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.
Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, San Rafael, Ukiah, Napa, Walnut Creek, San Jose, Sacramento and Los Angeles.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 10 years, he has been honored as one of Northern California’s top lawyers by “Super Lawyers” www.SuperLawyers.com.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.


Saturday, March 23, 2019


HOW TO OBTAIN AN EXPUNGEMENT OF A CRIMINAL RECORD

By Christopher Kerosky, Esq.

In California, an individual convicted of an infraction, a misdemeanor, or a felony and not sentenced to state prison can petition the Court for a dismissal or “expungement” of their record. Under Penal Code Section 1203.4, citizens can request a dismissal if they were given county jail time, probation, a fine, or a combination of those three types of punishment -- rather than being sentenced to state prison.

Upon receipt of a formal petition, the court may withdraw the person’s guilty or no contest (nolo contendere) plea, or even a guilty verdict, and enter a not guilty plea. If the court set asides and dismiss the conviction under Penal Code Section 1203.4, the individual is no longer considered to be “convicted” of the offense and their record will be changed to show a dismissal rather than a conviction.

This article explains how one obtains an expungement of their criminal record and what are the consequences of doing so.

When are is an individual eligible for a dismissal of a conviction?

One is eligible for dismissal of a misdemeanor conviction if:

The criminal defendant received probation for that conviction and:
·       they successfully completed probation or obtained early release;
·       they also have paid all restitution and other payments that were ordered as a term of probation;
·       they are not currently serving another sentence or on probation for another offense; AND
·       they are not currently charged with another offense.

OR

You never received probation and:
·       Your conviction was a misdemeanor or an infraction;
·       It has been at least 1 year since the date you were convicted;
·       You have complied fully with the sentence of the court;
·       You are not currently serving another sentence;
·       You are not currently charged with another offense; AND
·       You have obeyed the law and lived an honest and upright life since the time of your conviction.

What is the effect of an expungement?

Once all convictions have been dismissed, there are various circumstances where the conviction cannot be considered by potential employers.  Under most circumstances, private employers cannot ask an applicant for a job about any convictions dismissed under Penal Code section 1203.4. So when applying for a job in the private sector, a person generally does not have to disclose a conviction if it was dismissed or expunged.

Also, in California, with certain exceptions, government employers and licensing agencies are supposed to treat a person the same as if they had never been convicted of any crime – if that conviction was dismissed.


If you are filing a petition under Penal Code sections 17(b), 17(d)(2), 1203.4, 1203.41, 1203.43, and 1203.49, you can use the Petition for Dismissal (Form CR-180).  Ask the local clerk if you need to submit additional photocopies of the petition and, if so, how many.  Ask if their local rules of court require you to serve copies of your petition on the district attorney or probation department.

Remember, you can only dismiss 1 conviction at a time. This means you must fill out a separate petition for each conviction that you want to dismiss, but you can file them all at the same time. If you are currently on probation, you will need to deal with that conviction first; then you can proceed with the others.

You need to mail or deliver in person to the Court your filing materials to the clerk of the superior court for the county where you were convicted. If required in your county, be sure to serve a copy of the entire petition and supporting documentation on the district attorney or probation department.


It’s very important to include any supportive materials such as letters of support, school diplomas or transcripts, and if applying for early release from probation, a letter to the judge explaining why you feel you should be released from probation early. At the time you file your papers, the clerk will set a hearing date.

You may be required to attend the hearing. Be on time and dress appropriate for court. The court cannot charge you a fee to file your petition, but the court may order you to reimburse the court, city, and county up to $150 each after the court decides your petition, whether or not your petition was granted.


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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

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WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Tuesday, February 26, 2019



A GUIDE TO OPENING A BUSINESS, Part 2

By Christopher A. Kerosky, Esq.

Last month, I began publishing a series of articles on the process of starting and managing a business in California.  This is intended to provide the reader with a step-by step guide through the primary tasks necessary to legally register your business and start operations in this state.

Here’s Part 2 on Registering your business name.

Second Step: Registering your trade name or “fictitious business name”.

Once you’ve set up a business and named it, you may wish to open a bank account and start making money.  Opening a bank account itself  is a simple process in California; essentially, you go to the bank, spend an hour or less with an account officer of the bank, and fill out some forms required, and in a few days, your first set of checks come in the mail.  However, there are several steps required before the bank will allow you to open an account.

One is you need to let the government know what name you are using.    That is, if you are not using your own name in the business, but rather a trade name or “fictitious name”, it may be necessary to register that name with the County in which you do business.  Sole proprietors and general partnerships are not registered with the state, and so it is necessary for them to file “fictitious business statements” with the County to inform the public of the owners or “principals” of the company.  If corporations and limited liability corporations are only using their actual registered name, then they do not need to file fictitious business statements but those using a different name in the course of their business also must file.

So, for example, if your name is Bill Gates and you open a sole proprietorship known as “Bill’s Software”  in San Francisco, you need to file a fictitious business statement in City Hall, San Francisco, which lets the government and the public know that Bill’s Software belongs to you.   Likewise, if one is a corporation named, say, “Microsoft”, but it wants to do business using the name “Bill’s Software”, then it must file a fictitious business statement telling the world that this corporation is using that trade name.

This name is then referred to by the phrase “doing business as”; for example, Bill Gates doing business as Bill’s Software, or in the case of a corporation, “Microsoft dba Bill’s Software”. 

There are very specific rules for when you need to file a fictitious business statement and when you do not.  If you use your entire first and last name, “Bill Gates’ Software”, then you do not need to file.  If you use only your first name or initials, like “B.G. Software” , then you have to file.  If you have a partnership using the last names of the partners, let’s say “Gates and Jobs Computer Equipment”, there’s no need to file.  However, if it’s any other partnership name, even one using the first names – such as “Bill and Steve’s Computers” -- then it will be required to file. 

Of course, every business owner believes their business name is original and unique.  However, if it is not, when one attempts to file the fictitious business statement, the county will not allow use of the name.  Before a business owner can register a fictitious business name, a search of the county database of registered names will be done to make sure the name is not already taken.  If your name is Bill Gates and you get the idea to do business in California as “Apple Computers”, you can be pretty sure that you won’t be allowed to do so.

          After filing it with the County, you need to publish your fictitious business statement in a “newspaper of general circulation”.  The County office gives you an approved list.   There are certain legal or specialty newspapers who do this more cheaply than the big newspapers.  The purpose of this is to give formal notice to the world, or at least the subscribers of that newspaper, that you have started your business using the name chosen.

          These county fictitious business records are important for many purposes.  They give consumers a way of making complaints about business owners that may not be otherwise identified.   Certainly if a lawsuit against a business needs to be filed, especially if that business is not a corporation and does not use the owner’s name, one needs to know who the owner is and where to serve him the legal papers.  Lastly it serves to ensure that two or more businesses are not using the same name in the same county for their business.

          It is necessary for small business owners to go through this formality.  For one, business owners break the law by not registering their trade names, and theoretically risk being closed down by the County (at least temporarily).  But there is also the risk that after one has invested time, money and hard work in building up the reputation of a name, if it is not registered, the name may be taken and used by someone else who may benefit from all of your hard work and effort.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for over 25 years and has been recognized as one of the top lawyers in Northern California for 9 years by San Francisco Magazine “Super Lawyers” edition.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and 7 other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.


YESTERDAY’S APPELLATE COURT DECISION ON DACA. What does it mean for DACA-recipients? Yesterday the Fourth Circuit Court of Appeal...