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.

Can winery workers get a visa ?

By Christopher Kerosky, Esq.

This article was published in this month’s Immigration Stories column in the  Sonoma County Gazette: https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-can-winery-workers-get-a-visa-february-2019

All of us see the workers in the fields tending the vineyards throughout the year as we drive our beautiful Sonoma County roads.  You may wonder: can a person working in those fields get a green card by way of their job at the winery? The answer might surprise you.

Yes, if you are a winemaker.

The federal government has a special visa for temporary foreign professionals hired by a U.S. employer, known as the H-1b.   The H-1B visa is frequently used to hire IT professionals in Silicon Valley or elsewhere; it also works for winemakers (and their assistant winemakers). 

The application period for the H-1b visa starts on April 1^st.  Because there is a limited annual quota (65,000) of H-1 visas for the entire country and because there is high demand for these visas, the allotment of these visas has been used up  immediately after April 1^st for the last 5 years.  Last year, over 200,000 people applied in the first few days of April.  The government has to hold a lottery every year to decide which 65,000 envelopes they were going to open; the other 135,000 applications were sent back. 

Even for the highly-paid and highly educated, the visa system is basically broken.

Employment at a winery can be a basis for permanent residence for enologists, if they prove that no qualified American wants that job.  There is a complicated process known as PERM, whereby the winery must advertise and recruit for the position and prove to the government that no qualified U.S. citizen responded to the job opportunity.  An H-1b visa can allow a winemaking professional to stay and work legally in this country while they apply for a green card. 

But persons are eligible for an H-1b only for "specialty occupations”.  Generally speaking, that means jobs requiring a college degree.  No degree, no H-1b visa.

Maybe, if you’re an intern or trainee.

There are certain internship opportunities for foreign workers.  The requirements are fairly stringent but if a winery offers training to a college graduate or a current student studying winemaking, the foreign national may be eligible for what is known as a J-1 visas.

The J-1 internship or trainee visa application must be filed by an employer with an approved training program in winemaking or related skills.  The visas are typically valid for 6-18 months only.  An independent agency – paid by the applicant-- checks to make sure the training program is legitimate and processes the paperwork. 

The visa is not available for what the government considers “unskilled workers” and persons here without documents are ineligible.

No, if you are a field worker.

What about all the other winery workers like those who tend the vineyards or pick the grapes?  In short, no path to a green card exists for them and temporary visas are extremely limited.

There are some field workers who can qualify for an agricultural worker visa known as an H-2a.  But these visas are granted to groups of workers after an employer has shown that there is shortage of farm workers available in their geographic area.  There is a rather long, cumbersome process to apply for the visa, involving proving a labor shortage in a procedure with the U.S. Department of Labor.  If eligibility is shown, the worker is granted a visa for one year, and the employer must renew the visa every year by showing a continuing labor need.

Most importantly, those farm workers who are already here illegally need not apply.  They are not eligible. 

Frequently in my work as an immigration lawyer, I have to inform willing employers of this little-known fact about our immigration laws: there simply is no way for an undocumented worker to obtain legal status through employment.

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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 10 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.

HOW TO OBTAIN A PROFESSIONAL VISA (H-1B)

By Christopher A. Kerosky, Esq.

The H-1B visa is a very common visa used for foreign professionals hired by a U.S. employer.   H-1Bs can be hired only for what the government calls "specialty occupations," -- jobs requiring the equivalent of at least a bachelor's degree in the field.  

This is a visa commonly used for IT professionals of all types – computer programmers, engineers, computer assisted design professionals.  It also includes all variations of other professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists and a host of other jobs.

Under current law, no more than 65,000 H-1B visas can be issued each year.  The first day to apply every year is April 1^st.  It is important that your application be received by the Citizenship and Immigration Services (CIS) on that date (not before, not after), as the quota is used up within days for each of the last 5 years.

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

Employers must also pay a wage to every H-1B worker the “prevailing wage”, that is at least as much as what is typically paid in the region for that type of work   Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts.

The H-1B visa is issued for 3 years, but can be extended up to 6 years.  Presently, the processing of such visas takes between 4-6 months. 

What is required to obtain an H1B visa?

An H-1B visa requires that the job qualify as a “specialized occupation” which requires a bachelor’s degree.  The applicant must also have a bachelor’s degree in the same or similar field or its equivalent.

Am I eligible for an H-1B visa?

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

What can I do on H-1B visa?

·       May legally work in the U.S.

·       Travel to and from the U.S. and reenter as many times as you wish during the validity period of the H-1B visa, as long as you have a valid stamp in your passport.

·       H-1B visa holders may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family.

What are the limitations of H-1B visa?

·       If you change jobs you must reapply for a new visa, under the new position

·       You can only work for the company with petitioned for you.

Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on an H-1B visa. Your spouse and unmarried children are entitled to a H-4 visa and they can stay as long as you maintain valid H-1B status..

How long can I stay in the U.S. on an H-1B visa?

Generally H-1B visa is granted for three years. It may then be extended, up to six years total.

Can I transfer my H-1B visa to another company?

Yes, but a new petition must be filed by the company.

What if there is a change in my working conditions while I'm on  H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new visa application before you start work.

Is there an annual quota on the number of H-1B visas issued?

Yes. The current annual quota on the H-1B category is 65,000 for each Fiscal Year.

Is everyone covered by the annual quota for H-1B visas?

There are certain exceptions to the annual cap:

• Persons who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

• Also, there is a special allocation of H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap for each year.

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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.

O VISAS

FOR ARTISTS, ATHLETES, ENTERTAINERS AND OTHERS

The “O” category of visas is a special category for highly talented or nationally or internationally acclaimed foreign nationals who may not qualify for other types of work-related visas.  This category is often used by artists, athletes, entertainers, skilled high-end chefs, and business professionals who lack professional degrees.

The O category can be a useful alternative to the H-1B program because it lacks many of the restrictive features and has no cap. This article will give a general introduction to O visas. 

Who qualifies for an O visa?          

The O category is not for everyone.  O-1 beneficiaries in the sciences, arts, education, business, or athletics must demonstrate extraordinary ability, as shown by “sustained national or international acclaim.” This is a high standard where business persons, scientists, educators, and athletes are concerned. But “extraordinary ability” is a much lower standard as applied to artists and entertainers.  You must also show that you are coming to the U.S. to continue working in your area of extraordinary ability.

What achievements show extraordinary ability?

Individuals applying based on achievements in the sciences, arts, education, business, or athletics must show “a level of expertise indicating that the person is one of the small percentage who have arisen [sic] to the very top of the field of endeavor.”  This means showing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as the Nobel Prize,” or documentation of at least three achievements, such as:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
• Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts; or
• Published material in professional or major trade publications or major media about the alien.

For those in the arts, “extraordinary ability” means “distinction, which means “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”  The arts are broadly defined to include “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.”  These applicants must show either that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an “Academy Award,” or meet at least three additional criteria, including performances in a critical production; national or international recognition for achievements; and/or demonstrating a record of major commercial or critically acclaimed success.

How long can I stay on an O visa?

There is no limit on the amount of time you can stay on an O visa, except that the stay is authorized for the period of the “event” that is the basis for the trip.  CIS will grant O visas initially for an initial period of up to three years to complete the event or activity in question.  Extensions are then available for one year at a time.

Can I get a green card?

It is possible to apply for permanent residence through another channel without risking losing O-1 status. However, O-2 holders can only come to the United States temporarily and must maintain a residence abroad they do not intend to abandon.

How do I apply?

A U.S. employer or U.S. agent must petition for the foreign worker. The foreign worker must provide extensive documentation of her accomplishments. Also, a consultation from a labor union is required before an O petition may be adjudicated if a union has a collective bargaining agreement in the field that the O petitioner seeks to work in.

Can I bring my family with me?

O-1 visa holders can bring their spouse and children through the O-3 category.  In addition, the O-2 category is for certain aliens accompanying O-1 aliens in the arts or athletics who will assist in the O-1’s performance.

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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. 

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.

A GUIDE TO OPENING A BUSINESS, Part 1

By Christopher A. Kerosky, Esq.

The following is a series of articles on the process of starting and managing a business in California.  It is designed for the small business owner who may not be familiar with California law or procedures.  I will attempt 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.

First Step: Choosing a Proper Business Form and Registering Your Business.

One of the most important and sometimes most difficult decisions is the proper legal form for your business. There are four basic legal forms, each described below: the sole proprietorship, the partnership, the corporation and the limited liability corporation (LLC).

Generally, the decision should be made with reference to several factors: simplicity and cost of organization; control and decision-making; taxes; and responsibility for the debts and other potential liabilities of the business.  In another article, I deal in depth with the differences between each, but I will describe the basic differences here. 

A sole proprietorship has the advantage of simplicity, requiring less registration and paperwork.  Also, the income of the business is treated as income of individual for tax purposes, which makes tax return preparation a bit easier.  However, there is no protection from personal liability for the owner.  The debts of the business are treated as debts of individual, including liability due to accident or injury.  

A partnership also does not require formal registration or continuous meetings and minutes, as with a corporation.  However, a written agreement between partners is strongly advisable.  Like a sole proprietorship, the income of the partnership are not separately taxed.  But, again, the partners are not shielded from liability.  There are now limited liability partnerships (LLPs) which do provide limited protection for liability, although not as complete as with a corporation or LLC.

Corporations and Limited Liability Corporations are very similar.  Both require corporate documents to be drawn up, usually by a lawyer.   Both require registration with the state described below. 

With corporations, certain legal documents must be kept on an ongoing basis, such as shareholders meeting minutes, records of stock transactions. Formation of an S corporation requires an additional filing with the IRS.  With LLCs, the ongoing paperwork is not as demanding. 

With both LLCs and S corporations (used by most small businesses), income is treated as the  income of its shareholders just like a sole proprietorship.  With larger C corporations, income of business is not treated as  income of individual for the tax purposes. Only dividends paid to shareholders [or salary paid to employees] is treated as income. On the case of payment of dividends, this can subject the company to double taxation under certain circumstances.

One of the principal advantages of LLCs and S corporations is that the debts of the business are not treated as the debts of individual partners. A corporation can go bankrupt even while its shareholders remain solvent.  Most importantly, the shareholders are shielded from the liability of the corporation as long as the corporate formalities are followed.

Once you have decided which business form you will use, it may be necessary to register your business with the state of California.  Corporations or LLCs need to file special registration papers with the California Secretary of State.  For corporations, the necessary papers are called Articles of Organization.  Limited liability partnerships file a Limited Liability Partnership Registration form. 

The Secretary of State must approve all names before they can be registered.   The main criteria that the Secretary of State’s office applies is that they ensure that your proposed name is not already taken by another entity of the same type.  A business entity in California may not use a name that is already registered to another existing business entity of the same type.   Before you file your registration documents with the Secretary of State, it is worth it to check your potential names to see if they are available.  If they are, you can immediately reserve one of them.  You can do so through the Secretary of State’s office in person or at the telephone numbers or websites listed below. 

California Secretary of State Offices

Name check phone number is 916-653-6814

Online at www.ss.ca.gov. 

Sacramento Headquarters

1500 11^th Street

Sacramento, CA 95814

(916) 657-5448

Los Angeles Branch

300 S. Spring Street, Room 12513

Los Angeles, CA 90013

(213) 897-3062

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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.