Virgin Islands Law Blog

Virgin Islands Law Blog

U.S. Virgin Islands law & politics

Applying for a Nonimmigrant Visa Hranka Waiver

Posted in Immigration

USA_Passport_StampThere are a number of complicated legal issues foreign individuals will need to address before entering the United States or its territories—even if they are on a temporary nonimmigrant visa. The good news is that there are certain waivers for grounds of inadmissibility that can help to ease the process for foreign nationals.

Most of these waivers are highly specific, but the Hranka waiver applies to the broadest variety of people. Under the Immigration and Naturalization Act (INA), an individual who wishes to enter the United States as a nonimmigrant, but who is ineligible for a nonimmigrant visa or otherwise admissible, may still be admitted into the country at the discretion of U.S. immigration authorities. This clause is referred to as the Hranka waiver because it arose out of a major immigration case: Matter of Hranka.

Considerations for entrance

Under the Hranka waiver, there are three main factors immigration authorities must consider if they are to ultimately grant the waiver to the applicant:

  • If (or how much) risk of harm an admission of the applicant into the United States would have to society
  • The seriousness of any immigration or criminal violations by the applicant in the past
  • The reason why the applicant wishes to enter the United States

An applicant’s reasons for coming to the United States do not need to be compelling. The reason could be as simple as wanting to make social visits to friends or family. In other words, more than just workers or humanitarian aid missionaries are allowed through under Hranka waivers.

Although immigration authorities are allowed to deny a Hranka waiver at any time for any reason, they may also approve a Hranka waiver at any time for just about any reason. Even if applicants are below the bar for admissibility under other circumstances, they still have a chance to make a case to immigration officials about why they should be allowed to visit the country.

This is not to say that there are no grounds for admissibility under Hranka. For example, immigration authorities will not let an applicant into the country if there is reasonable grounds to believe he or she is attempting to come to the United States specifically for unlawful reasons. People who have participated in extrajudicial killings, genocide, Nazi-related activity or torture will also be summarily denied.

If you wish to apply for a Hranka waiver, you may request one from a consular office while applying for a visa. If you already have a valid visa, you may apply for the waiver at a United States Port of Entry using Form I-192. Consult an immigration attorney for further information and guidance on this issue.

 

BoltNagi is a widely respected and established immigration law firm serving individuals, businesses and organizations throughout the U.S. Virgin Islands.

Several Factors May Result in a Challenge to a Will

Posted in Tax & Estate Planning

5599532152_c5b5772620_bChallenging a will is often a very difficult process. An overwhelming majority of wills go through the probate process without much problem, which means their validity is verified. Unless there are unusual circumstances, court officials aim to have wills go through just as the testator intended.

There are some circumstances, however, in which an individual or family can successfully challenge a will in the U.S. Virgin Islands. In most cases, successful will challengers are the spouses of the deceased. Wills may be successfully challenged and voided in a variety of situations, including:

  • Lack of capacity: Only people at least 18 years of age who are of sound mental state are legally able to create a valid will. The most common challenges to will validity are due to a lack of mental capacity to create the document. These challenges usually arise when the deceased suffered from dementia, insanity or Alzheimer’s disease, or was under the influence of drugs or alcohol at the time of creation.
  • Fraud or forgery: Wills may be successfully challenged and voided if the challenger is able to prove the document was not actually created and signed by the testator.
  • Undue influence: If the testator was under undue influence by another person who was manipulating their decisions, the will is invalid. Of course, the challenger must be able to prove the presence of such an influence.
  • Will is outdated: In some cases, a potential challenger might uncover the presence of a more recent version of the will. If this newer will is valid, it overrides any previous iteration of the will. Thus, an outdated will that has already gone to probate could be invalidated.
  • Lack of witnesses: Any copies of the will must be dated and signed by at least two adult witnesses in addition to the testator. Some jurisdictions may require more witnesses. It is important to be familiar with the witness requirements in the state or territory in which you created the will to ensure it will be valid.
  • Lack of certain provisions: In most cases, a valid will must specifically state it was made by the testator, include at least one substantive clause and name a person to serve as the estate executor or personal representative.
  • Residence factors: There are some factors in which where the person lived when he or she created the will or where the person passed away could play a role into whether or not the will is technically valid.

Challenging a will is usually an uphill battle, but there are some situations in which doing so makes sense and could protect a beneficiary’s inheritance. To learn more about how to proceed with challenging a will, speak with a skilled U.S. Virgin Islands estate planning attorney.

 

Steven K. Hardy is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi, a respected and well-established estate and tax planning law firm serving clients throughout U.S. Virgin Islands.

How Mediation Can Help Resolve Employment Disputes

Posted in Labor & Employment

arrow-1538706_960_720Disputes between employees and employers can quickly get ugly, and we’ve seen them arise from just about every situation one might imagine. In the worst cases, these disputes could result in lawsuits, serious damage to a company’s public reputation and a variety of other negative consequences.

One key fact to keep in mind when these disputes come up is that it is in the best interest of both parties to reach a resolution as quickly as possible. Very rarely is there a situation in which the employee filing a claim actually wants to go to court, as it is both expensive and time consuming. As a result, one of the best means of resolving these disputes is mediation.

Through this process, both parties meet with a third-party mediator, whose job is essentially to keep communication open and constructive. The mere presence of a mediator greatly increases the chances of resolving the dispute outside of court. A mediator is able to keep each party focused on finding a resolution that meets both of their needs and is able to put a stop to any bickering or sidetracking that occurs.

While neither party is under any obligation to accept recommendations mediators make and the entire process is non-binding, it can be incredibly helpful toward reaching a positive conclusion to an employment dispute.

What types of disputes may be resolved through mediation?

There are several situations in which disputes between employers and employees can arise. These include the following:

  • An employee might accuse an employer, a manager or a coworker of some form of harassment
  • An employee might contend that they are either terminated or denied a promotion because of race, religion, skin color, sexual orientation, age or disability
  • An employee could argue he or she was wrongfully terminated
  • An employee could argue they are the victim of workplace retaliation for any reason, such as after alerting supervisors to wrongful actions taking place within the organization

There are a variety of laws at both the federal and territorial levels that outline certain elements of workplace conduct. Employers are expected to follow these guidelines at all times. If they do not, they could face serious legal consequences.

Even if the employer is not directly responsible for any wrong done to an employee, it could still face consequences. For example, an employer could be considered liable for a single supervisor harassing employees—even in a situation in which the employee does not report the incident. One of the best ways to address this issue is using mediation, which is typically considered a sufficient means of approaching the problem and attempting to resolve it without further litigation.

For more information on when and how to turn to mediation when facing a workplace dispute, consult an experienced employment and labor law attorney in the U.S. Virgin Islands.

 

Ravinder S. Nagi is Chair of the Labor & Employment Law Practice Group at BoltNagi, a widely respected and established labor law firm serving businesses and organizations throughout the U.S. Virgin Islands.

Defend Trade Secrets Act Offers Federal Protection to Trade Secrets

Posted in Corporate & Financial Services, Government Relations

Trade secrets are a valuable type of intellectual property—and they’re now subject to a number of federal protections similar to patents, copyrights and trademarks. This development is thanks to the new Defend Trade Secrets Act, which was written and approved to help strengthen the protection of trade secrets in the United States and its territories.

Intellectual property experts are calling this the “most significant trade secret reform” in the past 20 years, and it received tremendous bipartisan support in Congress. No senators and only two House members voted against the bill, which was then signed into law by President Barack Obama in May.

Before this bill, trade secrets were protected only by state laws, which have different elements to consider from state to state and territory to territory. DTSA now sets a federal standard for the defense of a variety of information, such as software programs, manufacturing methods, formulas, client lists, business methods and sales techniques that companies would want to keep private.

Cases involving trade secrets typically involve business contracts with nondisclosure agreements, employees discussing business with outside sources or the public and unfair competition after terminating an employee’s contract.

The U.S. Virgin Islands had previously approved a piece of legislation known as the Uniform Trade Secrets Act, companion legislation to the new DTSA. Now, the Territory will be covered by DTSA as well as the Uniform Trade Secrets Act.

 

Effects of DTSA 

Thanks to the new law, the way trade secrets are protected will now be standardized throughout the country, meaning businesses will not have to navigate a variety of different state or territorial rules depending on where the issue originates. Potential remedies for claims involving misappropriation of trade secrets include injunctive relief, actual damages and payment of royalties. The law also includes a stipulation that allows for exemplary damages to be recovered of no more than twice the amount of damages that were or would otherwise be awarded for malicious misappropriation.

Trade secret owners may also now seek ex parte orders to seize any trade secrets that have been allegedly stolen from them. To obtain such an order, the trade secret holder must be able to demonstrate the information in question was a company trade secret that was misappropriated, and that the company either had or will suffer irreparable harm without the use of such a seizure.

There are also provisions in place in the law providing immunity for civil and criminal liability for disclosing trade secrets in the midst of whistleblower cases. Employers are required to notify contractors and employees of this immunity in contracts and agreements with them.

This is a significant step forward in the defense of trade secrets across the nation. For more information on how this could affect your business or organization, consult an experienced corporate planning attorney.

 

Tom Bolt is Managing Attorney for BoltNagi PC, a trusted and experienced corporate planning law firm assisting a diverse variety of clients in the U.S. Virgin Islands and is a Commissioner of the National Conference of Commissioners on Uniform State Laws.

 

Protecting Your Intellectual Property Through Estate Planning

Posted in Real Estate, Tax & Estate Planning

Intellectual propertyIf you are a business owner or simply own valuable intellectual property, you can pass these assets down to your chosen heir(s) through smart estate planning, just as you would with any other property.

Intellectual property rights do not end with the death of the creator—they are allowed to be passed on through a number of estate planning tools, such as wills and trusts. Here in the U.S. Virgin Islands, legislators are considering passing the Uniform Fiduciary Access to Digital Assets Act, which would expand the protections afforded to intellectual property rights in estate planning.

It is highly recommended that you include any intellectual property to which you have ownership rights in your estate plans. The following are a few important considerations to keep in mind as you take this action:

The life of a trademark is endless. As long as the trademark is continually used and renewed, there is no expiration date. If you own a trademark that has either financial or sentimental value to you, the last thing you want is for someone to grab it as soon as you pass way. You can put plans in place for succession long after your passing. If you do not decide who gets the rights to the trademark in the future, you may lose all control over its future.

Many estate plans do not factor in intellectual property rights. Most people do not have intellectual property that they need to account for in their estate plans. Therefore, it is important that you are proactive by speaking with your attorney about all of the intellectual property rights you hold so you can implement strategies for passing them on through your estate plan. Be sure to consult a lawyer with experience in this area.

Copyright outlives the creator. If you have created any sort of artistic work or any other work that would be covered under general copyright law, that copyright outlives you by 70 years. This helps protect your work should it see a bump in popularity or value after you pass away.

All earnings from your works would still go to the beneficiaries of your estate, rather than to people who would seek to snatch up the copyright immediately after your passing. These rights apply to a wide variety of creations, including books, music, art, recipes, inventions, businesses and much more.

The estate planning tools you use to pass on your intellectual property rights to your heirs depend on your preferences and the circumstances of your estate. Some people find trusts to be better tools than wills, especially if they are seeking to limit or completely avoid estate taxes. Again, it’s best to work with an experienced estate planning attorney to make sure you are protecting your assets and your best interests.

 

Tom Bolt is Managing Attorney at BoltNagi PC,  a respected and well-established estate and tax planning law firm proudly serving clients throughout the U.S. Virgin Islands and serves as a Uniform Law Commissioner.

Ensuring Compliance with the Law When Hiring Foreign Workers

Posted in Immigration

Whenever your company is looking to hire new, internationally based employees, it’s important to be completely familiar with all of the federal regulations associated with employee eligibility. More specifically, you should be familiar with the Immigration and Nationality Act (INA), which addresses information such as employment eligibility and non-discrimination against foreign workers.

Employee eligibility

As an employer, you are required by federal law to verify that an employee is actually eligible to work in the United States. Within three days of the hiring, you must fill out an Employment Eligibility Verification Form, typically referred to as an I-9 form. To do this, you will need to review a variety of documentation that confirms the employee’s citizenship—or documents like work visas that confirm the employee’s eligibility to work in the United States and its territories.

You are only allowed to request documentation from the employee that is listed on the I-9 form. In fact, any employers that ask for other forms of documentation not included on such a form open themselves up to potential discrimination lawsuits.

Once the form is complete, you are required to keep it in your files for at least three years after the hiring date or one year after the end of employment, whichever is later. You must then have this information prepared for presentation in the event of an audit by U.S. Immigration and Customs Enforcement (ICE). This agency regularly conducts workplace audits to ensure all employers are complying with federal laws related to employee eligibility.

Non-discrimination

Other provisions of the INA protect citizens and work-authorized individuals from outside of the country from discrimination by employers based on their immigration status or citizenship. This means employers are not allowed to discriminate against a potential employee on the basis of national origin or ethnicity, and are not allowed to subject employers of foreign backgrounds to unfair documentary practices in the process of employment eligibility verification.

No-match letters

In some cases, you might send an employee’s W-2 form to the Social Security Administration (SSA) and receive what’s called a “no-match letter.” These letters are sent when the SSA and/or ICE are unable to verify the employee’s information, such as a name or Social Security number. In this case, there is no match between this information and government records.

No-match letters do not necessarily mean an employee falsified information—they simply mean the information provided did not match government records. Firing an employee after receiving a no-match letter could be grounds for a discrimination lawsuit, so you should be sure to tread lightly around this issue.

Incorporation and Registration in the U.S. Virgin Islands

Posted in Corporate & Financial Services, Government Relations, Labor & Employment

Incorporation-or-Registration-of-Company-Stages-Functions-of-Promoters-Certificate-of-IncorporationThe U.S. Virgin Islands provides business owners with some significant tax incentives as a means of boosting its economy and encouraging businesses to open up shop in the Territory. While qualified businesses are able to reduce up to 90 percent of their personal and corporate federal income taxes, and could even receive a full exemption on local taxes such business property, excise and gross receipt taxes, there are a few basic items you should know about registration and incorporation in the U.S. Virgin Islands that all corporations must go through to be legally incorporated in the Territory.

Articles of incorporation

 You must file articles of incorporation if you are to officially form a corporation in the U.S. Virgin Islands. Unlike most states, however, there is not a standard form for incorporation—so it is up to the corporations to draft this document themselves.

The three types of corporations that can be formed in the territory are:

  • Domestic corporations: These corporations are located in the Territory and do business here. They are eligible for tax incentives if they meet the qualifications put forth by the Economic Development Authority.
  • Exempt companies: These companies are not allowed to engage in any active trade in the U.S. Virgin Islands or United States. Residents of the United States or the Territory are not allowed to own 10 percent or more of the company. Such companies are exempt from income, gross receipts, license requirements and withholding taxes in the territory.

Registering as a foreign corporation

Any company that wants to conduct business in the U.S. Virgin Islands, but does not wish to incorporate, is required to file a document known as a Certificate of Appointment of Process Agent and Sworn Statement. This document must be submitted to the Territory’s Office of the Lieutenant Governor.

Additionally, the corporation is required to provide a statement of its liabilities, assets and capital stock to the lieutenant governor. The certificate filed must include a copy of the company’s Certificate of Incorporation and any amendments that have followed, along with a Certificate of Good Standing from its domestic jurisdiction. Signed consent from a registered agent is also required to show the named agent has agreed to serve in that role.

Individuals wishing to start a corporation in the U.S. Virgin Islands have a variety of options at their disposal. For more information on how to get a corporation registered and the types of benefits that are associated with becoming a corporation in the territory, consult an experienced business law attorney.

 

Tom Bolt is Managing Attorney at BoltNagiPC,  a widely respected and well-established corporate law firm serving clients throughout the U.S. Virgin Islands.

Special Allocations in Partnerships and LLCs

Posted in Corporate & Financial Services

The vast majority of business arrangements involve partners splitting profits and debts based on their contributions to the company. A two-person partnership, for example, often has a 50/50 split, but these arrangements can become more complicated as more partners are added.

For example, imagine a two-person partnership in which one partner contributed the majority of startup capital for the business. That partner might understandably not want to spend too long waiting for a return on the extra investment he or she made. In this scenario, a special allocation would help adjust for the disparity of investment.

 

What are special allocations?

A special allocation involves dividing profits and losses among all of the owners in ways that do not necessarily reflect the ownership interests of the members. Most of the time, there are perfectly legitimate reasons for wanting to create such an arrangement. However, there are situations in which partners will create a special allocation as a means to get around making some tax payments. Thus, the Virgin Islands Bureau of Internal Revenue (BIR) analyzes all special allocations before approving them, as the agency wants to make sure it is being established for valid business reasons.

In the event the BIR does choose to deny the special allocation, it will set taxes on the business members based on the proportion of the ownership interest held by those members.

Basically, the BIR wants to see a “substantial economic effect” on the business before it will be willing to approve a special allocation. A special allocation that does have a substantial economic effect will reflect its members’ economic situations, rather than a means of shifting tax responsibilities in a strategic manner.

Let’s say Bob and Christina start a company together. Bob has enough money to pay for startup costs, but Christina will have to make payments in installments. Christina could sign a contract stating she will pay for her portion over the next two years. The operating agreement for the company could then state that while both Bob and Christina maintain a 50/50 ownership split, Bob will receive 75 percent of the losses and profits during those first two years while Christina keeps making his payments.

In this scenario, the BIR will understand there is a substantial economic effect, as Bob currently has significantly more money invested in the company. While this is a rather simplistic example, it provides some insight into what the BIR looks to when examining special allocations.

For further information and guidance on special allocations and various other legal issues associated with business partnerships, speak with an experienced business and corporate law attorney and learn more about your options.

 

Steven K. Hardy is Chair of the BoltNagi Corporate, Tax and Estate Planning Practice Group at BoltNagi PC, a respected and experienced corporate planning law firm serving executives across the U.S. Virgin Islands.

With New Federal Rule, Many More Americans Now Eligible for Overtime Pay

Posted in Government Relations, Labor & Employment

Last summer, President Barack Obama announced plans to raise the overtime salary threshold, a move that promised to make millions more Americans eligible for overtime pay. Those plans went into effect last month, when the White House revealed the details of the new overtime threshold rules the President had set forth.

The measure is the strongest yet from the President to fight income inequality—although it could have a significant impact on businesses and employers across the United States and in its territories.

Under previous rules, professional, executive and administrative employees were exempt from mandatory overtime pay if they made more than $23,660 per year. The new rules nearly double that threshold, bumping it up to $47,476. Initial research indicates that this would make approximately 4.2 million workers eligible to make time-and-a-half wages for every hour they put in above 40 hours in a single workweek.

Currently, there are only 7 percent of people in the United States who qualify for overtime pay, a number that had been as high as 62 percent in 1975. The new rule would make 35 percent of workers in the United States eligible for overtime pay.

President Obama has also voiced his support for an increase in the federal minimum wage to more than $10 an hour from its current rate of $7.25. However, efforts to increase the minimum wage have not to date gained traction in the U.S. Congress.

 

How will these new rules affect companies?

It remains to be seen how the majority of businesses in the United States will respond to these changes. Some companies could begin switching salaried employees to hourly and expect them to track their own hours, but it’s an act that could be damaging to workplace morale. Others will probably increase the salaries of their employees to avoid having to pay overtime.

The impact will be seen the most in small businesses, which often are not able to afford paying overtime pay to employees. They will likely implement rules to prevent employees from working more than 40 hours per week—or begin relying more on part-time workers who can take on extra work if needed.

The good news for employees is that either way, they do not lose. They either begin making overtime pay that they had previously been denied, or they are given more free time to enjoy themselves outside of work as companies try to limit hours to no more than 40 per week.

To get a better sense of how these new overtime rules could affect your business, meet with a knowledgeable labor and employment attorney.

Ravinder S. Nagi is Chair of the Labor and Employment Practice Group at BoltNagi PC, a well-established and respected labor law firm proudly serving businesses and organizations throughout the U.S. Virgin Islands.

Common Types of Trusts and How They Protect Your Assets

Posted in Real Estate

charity signIf you would like to make sure your assets and property are distributed in accordance with your wishes, a trust is one of the best tools to help you do exactly that.

Through a trust, you are able to maintain full control over which beneficiaries receive certain funds or property, all while bypassing the lengthy and occasionally stressful probate process in the U.S. Virgin Islands. The following are some of the most common types of trusts:

  • Revocable trusts: You may modify or completely revoke these trusts at any time. Also commonly referred to as “living trusts,” you are able to transfer any assets you wish to the trust. When you pass away, your beneficiaries will be able to receive those assets without having to go through probate.
  • Irrevocable trusts: Once established, these trusts cannot be modified. Once assets are placed in the trust, they are permanently owned by that trust until the time comes for them to be passed to the beneficiaries. Irrevocable trusts are often used as a tool to help avoid or minimize estate tax obligations.
  • Charitable trusts: If you wish to leave money or assets to a specific charity or cause, you may establish a charitable trust. These trusts also have the added benefit of significantly reducing or eliminating estate taxes.
  • Special needs trust: If you have a loved one with special needs, you may establish a special needs trust to ensure that person still is qualified to receive government benefits. The beneficiary is not allowed to control how often trust benefits are distributed or in what amount they are distributed.
  • Asset protection trust: These trusts help to protect your property from claims from creditors. If you know you have creditors who are going to attempt to go after your assets, this can help your friends and family members avoid the hassle of dealing with them, while also giving you greater control over your assets.
  • Spendthrift trust: These trusts ensure your beneficiaries will not either promise away or sell any of their interests in the trust. All assets placed in this type of trust are protected from creditors of the beneficiary, at least until the trust’s assets are distributed.

 

All of these trusts are legitimate and helpful estate planning tools that provide you with greater control over your assets and property. The type of trust you choose, of course, depends on your own personal financial and estate situation. Individuals with larger estates are more likely to take advantage of trusts that help minimize their estate tax burdens, for example.

For further guidance and advice on selecting and establishing the best trust option for your needs and situation, reach out to a skilled estate planning attorney. Remember, it’s never too early to begin this process.

 

Tom Bolt is an estate planning attorney with BoltNagi PC, a widely respected and well-established estate planning law firm serving clients throughout the U.S. Virgin Islands.