Thursday, December 12, 2019



HOUSE PASSES BILL TO PROVIDE AGRICULTURAL VISA

Yesterday, the House passed the Farm Workforce Modernization Act which would establish a new program for agricultural workers in the United States  – similar to DACA – which would allow workers employed on a continuing basis in agriculture to obtain legal status. The status would be as a “Certified Agricultural Worker” (CAW).  The visa would be for three years and could be renewed. Spouses and minor children would obtain status too.

Additionally, this bill streamlines and simplifies the H-2A program to make the program more attractive for employers and employees.

The program has an annual cap, but the cap could be increased upon request of the Secretaries of Agriculture and Labor.

The bill passed with a bipartisan vote of 260-165. Even though it was supported by significant numbers of Democrats and Republicans, it is not clear if it can pass in the Senate or whether Donald Trump would sign it into law.

Monday, December 9, 2019



NEW H1B REGISTRATION SYSTEM WILL BE IMPLEMENTED THIS MARCH
Starting in March, employers who wish to file H-1B petitions for their employees must register each employee / applicant in a lottery to take place before the filing season starts on April 1st.
The initial registration period will open from March 1 through March 20, 2020. During this period, the electronic registration must be submitted by the employer or its authorized representative.
If the number of registrations exceeds the H-1B numerical allocation, a lottery will be conducted between March 20 and March 31, 2020. Only those petitioners who “win the lottery” – in other words are selected in the first group of eligible applicants – will be able to file a cap-subject petition for that candidate.
The H-1B petition will then still need to be found eligible in all respects in order to obtain approval.  
Under current law, no more than 65,000 H-1B visas can be issued each year.  This quota has been used up in the first week of the application process for each of the last 5 years.  So, in the past, applications had to be submitted on April 1st and any applications submitted later were typically not considered.

This new procedure will prevent employers from having to submit applications to CIS, knowing that only approximately one-third will even be considered. 

However, because the lottery is occurring so late (March 20-31st)  it will require many lawyers to have the petitions largely prepared before getting the lottery results. 

For more information on the H-1b visa and the eligibility requirements under the law, go to: https://kpblawfirm.blogspot.com/2019/02/howto-obtain-professional-visa-h-1b-by.html

Saturday, November 9, 2019


This Week’s Supreme Court Argument on DACA: What’s at Stake?
By Christopher Kerosky, Esq.
On Tuesday, Supreme Court will hear oral arguments on the legality of the Trump Administration’s termination of the DACA program. 
The status of the legal battle over DACA.

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.

Earlier in 2018, 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. 

In November, 2018, that Court ruled in favor of the DACA recipients and against the Trump Administration.  The decision of the three-judge panel was unanimous.  While this is not a final decision, it affirms the lower court’s injunction requiring the administration to keep the program open for renewals. The Ninth Circuit Court of Appeals in San Francisco told the Trump Administration it acted without legal basis when it sought to closed down DACA.  To read the decision: https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000927

"We conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA -- at least as justified on this record -- is arbitrary, capricious, or otherwise not in accordance with law," reads the opinion. 

Two other circuit courts – in New York and the District of Columbia—have also ruled against the Trump Administration, issuing similar orders requiring the program to remain open.  All three of these decisions are in front of the Supreme Court. 

The Supreme Court will hear oral argument on this on Tuesday and likely issue a ruling in June of next year.   They will rule on whether Trump’s elimination of DACA was in fact “arbitrary and capricious” and therefore violated the Administrative Procedure Act.  The highly-divided Supreme Court will probably render a 5-4 decision with Chief Justice Roberts being the likely deciding vote.  A lot will be riding on what that one jurist thinks.

Who can apply for DACA now?

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

Unfortunately, new applicants are still not eligible.  That means, young kids turning 15 who would have been eligible for this legal status, are now still subject to deportation.   

Also, the Trump Administration denies DACA holders the permission to travel – a privilege that was previously available under Obama.  This often results in tragic consequences.  I know a 19-year-old college student who spent their entire life here, but unknowingly lost his status by taking a weekend trip to Tijuana.  He now is stuck in his home country without a way to return for the foreseeable future.

What about DACA legislation?

In June, the House of Representatives passed the Dream and Promise Act, H.R. 6, by a vote of 237-187, pretty much along party lines. This bill, which would have given DACA recipients a path to residence, was never considered in the Senate.  Senate Majority Leader Mitch McConnell refused to let it come to a vote.

Future of 800,000 DACA recipients on the line.

There are about 800,000 people in the U.S. with DACA status.  All of these DACA recipients will retain their legal status only if the Supreme Court rules against Trump.  If the Court rules with Trump, these DACA recipients will be subject to deportation upon expiration of their current 2-year-permit.  If the Court rules against Trump, their DACA status will continue indefinitely

Sunday, September 29, 2019



OBTAINING STATUS FOR VICTIMS OF DOMESTIC VIOLENCE:
THE VIOLENCE AGAINST  WOMEN ACT (VAWA).

Under the Violence Against Women Act (VAWA), spouses and children of United States citizens or lawful permanent residents may request lawful permanent residency if they have been the victims of domestic violence.

This law applies even if the person applying is undocumented, and entered the United States illegally.  If the VAWA application is granted, the person’s unlawful presence here is forgiven, and they become eligible for a green card.

The person applying must have been legally married in good faith to a U.S. citizen or lawful permanent resident who committed the domestic violence.  The law also allows the unmarried children of the battered spouse under the age of 21 to get status as derivative beneficiaries.
Likewise, VAWA allows an opportunity to apply for status for a battered child under 21 years of age and unmarried.  The parents of a child who has been abused and unmarried minor children can also apply as derivative beneficiaries.

A battered spouse only qualifies for relief if the abuse occurred in the United States.  The only exception is when the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.

It is important to know that the emotional or psychological abuse also qualifies; it is not 
absolutely necessary to show that the victim suffered physical attacks.  The law requires the victim to prove they were subjected to “extreme cruelty”, which can include threats, verbal abuse, harassment and other forms of emotional abuse, without the necessity of physical abuse.
Our office has had great success obtaining VAWA status for women who were subject to various forms of cruelty or violence.  In these applications, a police report of the abuse is helpful, but not necessary.  We have been able to succeed in winning these cases with statements from witnesses including family members. 

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for the 10 years by  “Super Lawyers” (2006-2019) 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.  

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.

Saturday, August 31, 2019



Opening a business in California- Part 5 Insurance for Your Business.

This is the fifth 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 this article, I will describe the process of finding and buying that will secure your company from liability. It is very important to be prepared for this potential insuring your business will protect both your assets and your business assets from liability. But choosing the right insurance can be a challenging task, especially for persons not familiar with the American commercial insurance industry. This article is intended to help you choose the right insurance for your needs.


I. Buying insurance.
When buying insurance, start by setting up some priorities that are most important for your company. First, check what coverage is required by state law and by your landlord (if you rent) and then tailor your coverage to these requirements. You also need to identify what your other business insurance needs will be. An insurance agent can help advice you. You and your insurance agent can discuss the best way to get the coverage you need, at the lowest cost. Keeping your cost low is important at the outset of your business since there will probably be many cash demands and few sources of cash inflow. Another way to keep the cost of insurance low is to purchase it through group plans that are often available through trade associations or other similar business organizations. Many trade associations and business groups such as the Chamber of Commerce provide members the benefit of purchasing insurance at group rates. Explore alternative trade associations for lower rates and a possible fit with your business.
To gain a better perspective on the amount of coverage your small business needs, take a look at your industry. Review the recent legal actions and settlements in your field. Talk to peers and find their level of coverage. Using your peer feedback and industry research, determine the average legal costs and settlement to set your coverage limits. If you find out what amount of coverage is enough for your business you can lower the premium by increasing the amount of your deductibles. The difference if you decide to choose $1000 instead of $250 as a deductible might save you 10-15% from your premium.
Another good way to lower your insurance costs is to find out what safety or security features serve to lower the rate. Sometimes even installing deadbolt locks or a sprinkler system may lower your rate significantly.
Before deciding on which insurance to buy, shop around, ask your business partners or even friends if they can recommend something. It is not a good idea to buy the first insurance that you have been offered. You might be able to buy comprehensive package which is specially tailored for your type of business.

Some firms choose to self-insure. This means that you don’t buy insurance but just maintain a special fund to cover likely loses or liabilities. Although it may seem like a good idea this could be a risky solution.

II. Types of insurance.

1.     Property coverage.
This type of insurance covers the property where you run your business. If you own the building where your company is located than you definitely need such coverage. The insurance can cover not only the building itself but also additions, furniture, machinery, equipment, outdoor fixtures and work in progress. Most property insurance is written on an all-risks basis, as opposed to a named peril basis. The latter offers coverage for specific perils spelled out in the policy. If your loss comes from a peril not named, then it isn't covered.
Make sure you get all-risks coverage. Then carefully review the policy's exclusions. All policies cover loss by fire, but what about such eventualities as hailstorms and explosions? Depending on your geographic location and the nature of your business, you may want to buy coverage for all these risks.

Typically property insurance is written in one of three forms:

·       Basic Form- this includes losses by lightning, explosion, windstorm, smoke, etc.
·       Broad Form- coverage contains everything that’s on Basic Form and adds protection from other perils like falling objects or breakage of glass.
·       Special Form- this is the most common form and affords the best protection. Instead of listing specific perils this type of policy simply covers all risks of physical loss unless the policy specifically excludes or limits loss.

When choosing the amount of coverage, remember that you only need coverage for the building and not for the land so you don’t need to insure the total value of your real property. Especially in California where land value is extremely high this might save you a lot of money.
   Another two options that you can get with your insurance are: “Replacement Cost Coverage and “Ordinance or Law Coverage”. Replacement cost insurance will pay you enough to replace your property at today's prices, regardless of the cost when you bought the items. It's protection from inflation. (Be sure your total replacements do not exceed the policy cap.)
Ordinance on law coverage requires the insurance company to not only replace the building but also pay for legally required upgrades when you own an older building and it will require some special renovation to fulfill building codes or other legal requirements.
Make sure the full value of an item is insured and check the terms for reimbursement. Just because you may have $1 million in coverage doesn't necessarily mean the whole amount is going to be applied in a given category of property. Also, if your company has a variable growth pattern, you may want to adjust your coverage annually.



2.     Liability Insurance.
This type of insurance protects you against liability from lawsuits or other claims up to the amount of the policy limit plus usually the cost of defending lawsuit. The price you'll have to pay for liability insurance depends on the size of your business and the specific risks involved. The good news is that liability insurance isn't priced on a dollar-for-dollar basis, so twice the coverage won't be twice the price.
There are few different types of Liability Policies:

A.    Product Liability Insurance- covers liability for any injuries caused by products you design, manufacture or sell. Product Liability Insurance covers you against unforeseen circumstances. Bad workmanship or defective products are not covered.
B.    Comprehensive General Liability (CGL) Insurance- coverage insures a business against accidents and injury that might happen on its premises, as well as exposures related to its products. For example, one of your clients slips on wet floor while visiting your office and breaks his leg. A CGL policy covers his claim against you. But let's assume that your company is a window manufacturer, with hundreds of thousands of its windows installed in many homes and businesses. If something goes wrong with them, general liability covers any claims related to the damage that results. CGL policies tend to have a lot of exclusions. Make sure you understand exactly what your policy covers and what it doesn't. You may want to purchase additional liability policies to cover specific concerns. For example…
C.    Errors and Omissions Liability (E&O) - this type of policy protects you in case you are sued for damages resulting from a mistake in their work. So if you are designing windows and for example the window leaks because of your design you may be protected by this type of insurance.
D.    Vehicle Insurance- this type of policy should cover cars and trucks you own but also employees’ cars and trucks when those vehicles are used for business purposes. Many states set minimum liability coverage, which may be well below what you need. Make sure you get enough coverage. If you don't have enough coverage, the courts can take everything you have, and then attach your future corporate income, thus possibly causing the company severe financial hardship or even bankruptcy.
E.     Workers’ Compensation Insurance- workers' compensation, which covers medical and rehabilitation costs and lost wages for employees injured on the job, is required by law in all 50 states. Each state has a law setting out what an employer must provide for workers’ compensation benefits. This type of policy is only required for employees, not for independent contractors.

When talking about Liability Insurance it’s important to mention the insurance company’s Duty to Defend.  Most policies state that the insurer has an obligation to defend the insured in a suit brought by a third party. For occurrences covered by the policy, a defense must be provided even if a suit is found to be groundless or false. Make sure the insurance you purchase contains this duty to defend.
3.     Other Types of Insurance.
There are also other types of insurance and depending on your location and other factors you might consider choosing one of these:

·                           Coverage Against Employees’ Theft- covers you if your employee steals from you.
·                           Crime Coverage- protects your company against burglary and robbery but also other thefts and loss or disappearance of property.
·                           Business Interruption Insurance- When your business property is damaged or destroyed this coverage will pay lost income while your business is closed as well as expenses you incur in order to keep your business going. 
·                           Disability Insurance- sometimes called "income insurance," can guarantee a fixed amount of income, usually 60 percent of your average earned income, while you're receiving treatment or are recuperating and unable to work. Because you are your business's most vital asset, many experts recommend buying disability insurance for yourself and key employees from day one.

III. Making a Claim.

When one buys insurance, one hopes that it will never have to be used. However, frequently the need to make a claim arises and there are many important things to remember about. To make a claim you need to:
·       Notify your insurance company immediately when you experience a loss, or have a lawsuit filed against you or your business. You should also notify the police of a theft or accident immediately.
·       Read your insurance policy to make sure what your responsibilities to the insurance company are.
·       Make a list of damages and any items lost, stolen or destroyed.
·       If possible, find receipts or proof of ownership for all your lost, stolen or destroyed items.
·       When facing a lawsuit from a third party, gather any information you may have on the incident or reason for the lawsuit.
·       Send written notice by certified mail to have verifiable proof of the date that you notified your insurance provider regarding a claim.
When you have filed a claim, be prepared to do battle with your insurance company. If you feel your settlement offer is not fair, schedule a time to talk with the claims adjustor and contact the customer service division of the insurance provider. Negotiating with your insurance company is always a good start to reaching a better settlement. Although, if you are completely dissatisfied with the final result, you may hire an attorney to help you with the negotiations, and if necessary to pursue a lawsuit or arbitration against insurance company.

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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. 
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.


Thursday, August 22, 2019




HOW TO OBTAIN AN EXPUNGEMENT OF A CRIMINAL RECORD

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 been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”.   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. 

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.




Saturday, August 3, 2019



HOW TO FIGHT YOUR DEPORTATION, Part Two

In the first segment of this series, I discussed what to do if you are arrested by Immigration (ICE).  In short, don’t sign anything and you will likely be able to fight your deportation in court. 

Once you tell ICE that you want a court hearing, you also can ask for your release on bond, so you can be reunited with your family while your case moves forward.  Below, I will explain how to convince the immigration judge that you deserve to be free on bond, to make the bond as low as possible, and to get the bond paid and get out of immigration custody.

How is the bond set.

If a person is detained but eligible for bond, the government will often set an initial bond amount.   ICE under the Trump Administration has been setting bonds higher than in previous administrations or often dismissing deportation cases altogether.  We can expect that ICE under Trump will set bonds at $10,000 or higher, even for immigrants without any real criminal record.  But this can be lowered by an immigration judge.

In most cases, you have the right to ask the immigration court for a bond re-determination hearing.  The immigration court will then consider the arguments you make and often lower the bond set by ICE.

In setting the amount of bond, the judge will look at a number of criteria.  The most important criterion is whether the person is a “flight risk”; that is, whether he would likely come back to court if released.  In making that decision, the judge will consider factors which tend to show good moral character on the part of the individual held.  These factors include:

  • Relatives in the United States: does the person have relatives here who are in legal status?  Do they have a citizen or permanent resident spouse or child?

  • Employment: does the person have a regular job and income?

  • A residence: does the person have a place to live if released?

  • Immigration Court History: Has the person ever failed to show up in court on any of his prior criminal or immigration cases? Can they show the judge that they always went to court when required to do so in the past?

  • Tax Records: has the person paid his taxes in the U.S.?

  • Eligibility for Relief:  What immigration status does the person qualify for?  Do they have an immigrant petition filed by a relative?  Or can one be filed? Do they have a credible argument that they would fear persecution in their home country?  Do they qualify for some other status here?


How to Pay the Bond.

Once the bond is set, a relative or friend can post the bond if they can show that they are a U.S. citizen or lawful permanent resident.   That person must agree to be responsible for ensuring that the person attends any immigration hearing or interview whenever requested to do so.

The person posting the bond will need to know the last name of the person in ICE custody and their “A” number--the case number which begins with A followed by 9 numbers.   The bond can be paid with a cashier’s check from a bank, or a money order – not by cash or personal check. 

In San Francisco, the person paying the bond must present the money in person at the immigration office located at: 630 Sansome Street, 5th Floor.  Hours are: Monday – Friday, 8:00am to 3:00pm.

If you pay the bond directly to the government, the bond money will be returned to your family only when your court case is completed and only if you have complied with the court’s order, even if that order is to leave the country.

Next post on this topic will deal with how to fight and possibly win your deportation case in the Immigration Court.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law over 25 years and has been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”.   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.

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.

HOUSE PASSES BILL TO PROVIDE AGRICULTURAL VISA Yesterday, the House passed the Farm Workforce Modernization Act which would establi...