International Business

Trading with China – New Reasons to Be Wary!

By Susan Kohn Ross

portToday, President Trump signed into law H.R. 3364, the “Countering America’s Adversaries Through Sanctions Act”. The general press is covering this story by writing about Russia’s initial retaliation taking the form of cutting the staff authorized at the U.S. embassy in Moscow and the seizure of certain U.S. diplomatic property within Russia. When it comes to international traders, the impact on dealing with Russia, but also Iran and North Korea, takes the form of enhanced compliance efforts.

The new law will provide more in the way of direct and indirect sanctions. A direct sanction arises because the person (or company/entity) is listed by one of the relevant U.S. agencies on the appropriate blocked persons list. A secondary sanction arises because a blocked person (individual or entity) owns or has a controlling ownership in a company not otherwise listed as blocked. Of course, additional headaches exist when there is U.S. content in the good being sold, so the impact is on both exports and imports. (more…)

Trump’s Cuba Course Clarified

Trade ConceptBy Susan Kohn Ross

“Trump cracks down on Cuba” or variations on that phrase have peppered the general press since Friday, when the President announced his policy towards Cuba.  When you read what was actually written, you come away with a more tempered reaction. Yes, there will be changes, and the most critical one is yet to come, but we focus here on what was actually written.

First, the format is not an Executive Order but rather a June 16, 2017 “National Security Presidential Memorandum on Strengthening the Policy of the United States Towards Cuba” accompanied by a Fact Sheet. The memo can be found here, and the Fact Sheet here. So, nothing changes right away.

Taken together, there are two points that could impact international traders. (more…)

Romaine Calm: FSVP is Approaching

By Susan Kohn Ross

Does FSVP Apply to You?

Are you the importer, consignee, or agent for food imported into the United States?  If so, the Foreign Supplier Verification Program for Importers of Food for Humans and Animals (FSVP), a key element of the Food Safety Modernization Act (FSMA), likely applies to you.  Implementation of the FSVP will begin on May 30, 2017, but categories of companies or foods may be subject to later compliance deadlines.  Where do you fit?

The FSVP regulations aligns with key components of the FDA’s overall food safety plan for facilities that manufacture, process, pack or hold food which must now establish and follow the regulations regarding current good manufacturing practice (CGMP) and hazard analysis and risk-based preventive controls for human food and animal food (Preventive Controls or PC).

What Is FSVP? (more…)

Due Your Duty

By Susan Kohn Ross

With the ever-increasing scrutiny being brought to compliance and the payment of duties on imported goods by Customs and Border Protection (CBP), it is worth commenting that any duties which are due when an entry liquidates may, in fact, end up having to be paid even if the related protest remains pending due to the legal and contractual relationship between the importer and his surety company.  Simply put, if a surety insists on receiving payment of any amounts demanded by CBP upon liquidation, the importer does not have any solid grounds to object.  Why would the surety do so if a protest is pending? Because the surety is looking to mitigate its risk. If the importer does not pay, the surety will have to do so, at least up to the face amount of any bonds it has written, and sureties try their best not to be put in that position. (more…)

Buy American Executive Order

By Susan Kohn Ross

On April 18th, President Trump issued an Executive Order (“EO” or “Order”) focused on the Buy American  laws and regulations. See Buy American EO.  This EO directs federal government entities to review their procurement rules so that, to the extent legally permitted, preference is given to American made goods.  Section 2 specifically states: “[i]t shall be the policy of the executive branch to buy American and hire American”.  At the same time,  the EO confirms:  “[n]othing in this order shall be construed to impair or otherwise affect … existing rights or obligations under international agreements”.  So, what does this EO mean to the private sector when it comes to government contracting?

First, it is important to keep in mind the review triggered by this Order applies only to federal procurement. States and other governmental entities have their own rules. They cannot contradict the federal rules, but they can be different.

Next, nothing in this Order has any impact on privately funded projects. The typical example given in the general press is the Keystone Pipeline. Nonetheless,  the point is you are only impacted if you are providing or intend to provide goods to a U.S. government entity. (more…)

Protecting Your Brand Overseas

By Evan M. Kent

It has been my experience that when many U.S. clients expand their businesses beyond national borders, they are unaware that their U.S. trademark registrations provide no protection in foreign jurisdictions.

Trademark ownership provides important commercial and legal benefits including the exclusive right to use the registered trademark and the right to sell or license it to another for profit. Further, trademark ownership gives one legal standing to prevent others from using or attempting to register similar or identical trademarks. Trademarks are considered to be tangible assets of the owner and add to the value of the shares of a company. If you are an exporter, or thinking about exporting in the future, you should seriously consider securing protection for your trademarks at the earliest possible date in those foreign markets which are or could be of interest. (more…)

DOJ Defines Compliance

By Susan Kohn Ross

In the span of the last 18 months, the topic of corporate compliance programs has gotten considerable attention from the Department of Justice  (“DOJ”) and now finally, DOJ has published significant details about how it is likely to measure the sufficiency of any company’s compliance program.

First, some background.  In September 2015, the Yates memo was published, see DOJ Sets Its Sights on Officers and Directors for more details. In short, then Deputy Attorney General Yates reminded the DOJ offices nationwide, if a corporation has violated the law,  its level of cooperation will be measured, in large part, by whether it provides “all” the relevant details, which means did the company identify the individuals whose actions or inactions resulted in the violations under consideration, and provide supporting documentation to show what happened and how those individuals were involved. If the company did not do so, it does not get full credit under the Sentencing Guidelines. (more…)

Is the Border Tax Crossing the Line?

By Susan Kohn Ross and Jeffrey D. Davine

It is far too early to discern the extent of any change to the relationship between the U.S. and Mexico in the face of the oft-repeated insistence of the Trump campaign to “renegotiate” NAFTA, a promise that was reiterated once Mr. Trump was sworn into office. Following a prickly meeting last month between President Trump and Mexican President Enrique Peña Nieto, accounts from Mexico report the government as having started consultations with its business community, a process described as taking 90 days. The results of those consultations and how they might impact any further discussions with the U.S. remain to be seen. Similarly, President Trump and Canadian Prime Minister Justin Trudeau also met last month, but under somewhat more cordial circumstances. Again, next steps with Canada remain an open question. However, the overarching theme is the oft-repeated promise from the Trump Administration that a border tax will be imposed.  While nothing concrete has been proposed to date, how such a border tax might work has understandably caused varying levels of concern among American companies. Given there is nothing concrete to examine, in this Alert, we seek to provide a brief explanation of the concepts being bandied about. (more…)

Recreational Use and Sale of Marijuana in California: What Is and Is Not Permitted

By Ariel Weindling

Law and Marijuana

Photo credit: iStock.com/matt_benoit

On November 8, 2016, California voters approved the Adult Use of Marijuana Act (“AUMA”) by approving Proposition 64. AUMA largely legalizes the recreational, non-medical use of marijuana in California, as well as the sale of marijuana to recreational users.

What does AUMA permit?

As of November 9th it is legal for any adult (21 years or older) to:

  • Possess, transport, obtain, or give away to other adults 21 or older no more than one ounce of marijuana or 4 grams of concentrated cannabis.
  • Cultivate up to six marijuana plants per residence and possess the marijuana produced from those plants.

How does AUMA impact medical marijuana? (more…)

Visas for the U.S.: What Are Your Options?

By Ariel Weindling

iStock-514062570.jpg

Photo credit: iStock.com/mrdoomits

This post is for the many French people who ask me on a regular basis about the U.S. visas that are available to them.

Several visa categories exist.  This post will focus on the most commonly used in the case of French nationals: the E2 (for investors); the L1 (intracompany transfer); and the O1 (extraordinary ability).  The H1B is also widely used but it will be the subject of a stand-alone post in the not too distant future.

  1. The E-2 Visa: The E-2 visa is available to foreign nationals who are looking to invest a substantial sum of money into a business in the United States – either a new business or the purchase of an existing U.S. business. Although the law does not mention a minimum amount, in our experience, the minimum investment generally ranges between $120,000 and $150,000, but it can be more or less depending on the nature of the business.  Additionally, that money must be spent on the business, and not merely sit dormant in a U.S. bank account.  If the investment is made into an existing business then it would need to be substantial in comparison to the current value of the business.  The visa can be approved for up to 5 years at a time, and extended in 5 year increments, so long as the business remains operational.  There is no limitation on the number of times it can be extended.  Note that primary focus of the E-2 is the creation of U.S. jobs, so it is usually critical that the applicant provide proof of U.S. jobs creation or a business plan that shows the creation of U.S. jobs in the near future.
  2. The L-1A “New Office” Visa: The L-1A visa is an “intracompany transferee” visa that is available to foreign nationals who work in managerial or executive occupations, and are transferring from a foreign company to a U.S. parent, branch, or subsidiary. The visa includes newly formed U.S. offices and businesses, provided that the newly formed U.S. office is established as a subsidiary, affiliate, or parent of a foreign company, and that the foreign company will continue operations abroad.  This visa is attractive when the foreign investment into the U.S. business is made through a foreign company, as opposed to a foreign individual investor, as it may allow multiple employees from the foreign company to be transferred to the U.S. office.  The L-1A visa requires proof that the foreign national transferee has worked for at least one full year for the company abroad before entering the U.S., and that the U.S. office has sufficient financial or operational resources to conduct business in the U.S.  The foreign business must also remain operational after the individual transferee begins work in the United States.  An individual is allowed seven (7) years maximum stay on an L-1A, although there are exceptions for individuals who use the visa infrequently and only occasionally.
  3. The O-1 Visa:  The O-1 visa is reserved for individuals of “Extraordinary Ability” in the arts, sciences, and business.  To obtain an O-1 visa, a U.S. company must petition for the individual to come to the United States to perform a service that is related to his or her area of extraordinary ability.  We also need to establish that the individual is an individual of extraordinary ability in his or her field.  The visa can be approved for up to three (3) years at a time, and extended in increments of up to three (3) years.  There is no limitation on the number of times it can be extended, but documenting ongoing success and industry contributions with each extension is crucial.