Solar Flare-up with China
Two actions took place at the end of last week which heighten concerns that a trade war with China could be ever more likely. First, there was the preliminary decision in the solar panels 201 case. Then, we had the additional sanctions imposed by the President on North Korea.
The 201 solar panel case began when Suniva Inc. and SolarWorld Americas Inc. filed their cases before the International Trade Commission (“ITC”) in April and May 2017. These actions are, of course, in addition to the antidumping and countervailing duties currently being imposed on these products from China. Continue reading “Solar Flare-up with China”
Lawful Permanent Residence: How Not to Lose It
U.S. Customs and Border Protection Officers at ports of entry to the U.S. routinely question returning lawful permanent residents (“green card” holders) about the length of time spent outside the U.S.A. and the nature of their activities abroad. Generally, an absence from the U.S.A. of six months or longer will result in further inquires and requests for documentation to establish the individual’s intent to retain lawful permanent residence status.
A U.S. “green card” allows the holder to reside in the U.S. as an immigrant as long as the holder’s status does not change. However, that status may be lost if the “green card” holder is deemed to have abandoned his or her U.S. residence or if the individual lacks the requisite ties to the U.S. while living abroad.
The question of whether a “green card” holder has retained his or her status in the U.S. arises when the individual departs from the U.S. for lengthy periods of time usually exceeding one year. The determination of retention of U.S. residence depends upon the circumstances surrounding the individual’s departure and his or her ties to the U.S. Among other factors considered in evaluating retention of U.S. residence are the following: Continue reading “Lawful Permanent Residence: How Not to Lose It”
Effects of the Shortened T+2 Settlement Cycle
By Blake Baron
In March 2017, the United States Securities and Exchange Commission (the SEC) adopted amended Rule 15c6-1(a) which shortens the standard trade settlement cycle for most broker-dealer securities transactions from three business days (known as T+3) to two business days, (known as T+2). On Tuesday, September 5, 2017, the amended rule went into effect.
What Does the Change Apply To?
The new T+2 settlement cycle applies to the same securities transactions currently covered under the T+3 cycle, which the SEC states includes “transactions for stocks, bonds, municipal securities, exchange-traded funds, certain mutual funds, and limited partnerships that trade on an exchange.”
However, the new cycle does not apply to certain categories of securities, such as securities exempt from registration with the SEC due to being backed by a government or governmental institution. Continue reading “Effects of the Shortened T+2 Settlement Cycle”
International Travel Alert: Change In Policy Regarding Advance Parole Travel Document Applications
By Benjamin Lau and David Rugendorf
The U.S. Citizenship & Immigration Services has recently changed its policy regarding the adjudication of Advance Parole Travel Document applications (Form I-131).
The Advance Parole Travel Document (“Advance Parole”) is a travel authorization granted to qualified applicants of pending Form I-485 Adjustment of Status Applications. With the exception of H, K, L, and V visa holders, beneficiaries of pending Adjustment of Status Applications are prohibited from traveling internationally until they are issued an Advance Parole by the USCIS. An adjustment applicant who departs the United States before the Advance Parole is issued will have his or her adjustment of status application denied based on abandonment.
New Policy
The new USCIS policy regarding the adjudication of Advance Parole applications is that if an individual departs the United States while their Advance Parole application is pending, then the Advance Parole application will be considered abandoned and subsequently denied. This new policy affects ALL Advance Parole Travel Document applications regardless of the applicant’s underlying nonimmigrant status or whether it is an initial application or an extension. Continue reading “International Travel Alert: Change In Policy Regarding Advance Parole Travel Document Applications”
California Court of Appeal Upholds Clearly Defined Waiting Period Before Vacation Begins to Accrue
By Steven Schneider and Hilary Feybush
Building on earlier vacation policy decisions, a California Court of Appeal recently held in Minnick v. Automotive Creations, Inc. that employers may impose a clearly expressed waiting period before an employee can begin to accrue vacation time. This means that employers do not have to provide vacation pay vesting on day one of employment. While an employer cannot contract around the rule against forfeiture of wages, an employer does not do so by unambiguously providing that employees do not begin to earn vacation pay until a certain period of employment has occurred. However, once vacation pay under an employer’s policy starts to be vested and earned, it cannot be taken away.
In the Minnick case, the employer’s policy clearly expressed that no vacation time was earned during an employee’s first year of employment. The plaintiff was a former employee who had only been employed for six months. He accordingly was not paid any unused vacation in his final paycheck because he had not worked a full year. His lawyer argued that the employer’s policy violated California law because it required employees who worked less than one year to forfeit vested vacation pay. Continue reading “California Court of Appeal Upholds Clearly Defined Waiting Period Before Vacation Begins to Accrue”
NYC Updates “Ban the Box” Law
NYC Updates “Ban the Box” Law to Detail Per Se Violations and Procedures Employers Must Follow to Conduct Employment-Related Criminal Background Checks
On August 5, 2017, important updates to New York City’s Fair Chance Act went into effect. The Fair Chance Act (FCA), which regulates criminal background checks on employees and license holders, is the City’s version of a growing trend of so-called municipal “Ban the Box” laws designed to prohibit employers and agencies from denying jobs and licenses to would-be employees because of a criminal conviction(s), especially when the conviction is not directly related to the persons’ ability to perform the job.
The Fair Chance Act itself took effect on October 27, 2015 (see MSK’s prior alert here). Since then, the New York Commission on Human Rights (Commission), the agency charged with enforcing the FCA, has published revisions that further clarify the law, provide guidelines for per se violations, and detail the analysis and process for legally withdrawing conditional offers of employment based on the results of a criminal background check. It is those revisions that took effect on August 5, 2017. (Click here for a copy of the rule). Continue reading “NYC Updates “Ban the Box” Law”
Trading with China – New Reasons to Be Wary!
Today, 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. Continue reading “Trading with China – New Reasons to Be Wary!”
I-9 Update
By Jaclyn Granet and Frida Glucoft
July 31, 2017
Onboarding a new employee is a time-consuming process that requires diligent review of employment authorization materials. One major element of onboarding is the completion of the Form I-9, intended to document verification of the identity and employment authorization of each new employee. Form I-9 has seen many modifications and revisions over the years, including a significant update in 2013. The Department of Homeland Security (“DHS”), through the United States Citizenship and Immigration Service (“USCIS”), released a new edition of the Form I-9 on July 17, 2017. This newest version of the form may be used immediately. However, USCIS has authorized a grace period during which either the new version of the Form or the last version may be used. Following the end of the grace period, on September 18, 2017, all U.S. employers are required to use the new Form I-9 for all new hires. Employers should only complete the new Form I-9 for new hires and current employees requiring reverification. Given the significance of the Form I-9, it is important for all employers to familiarize themselves with the new features of the Form and the mandatory time frame for its usage. Continue reading “I-9 Update”
IRS Gives Surviving Spouses a Second (or Third) Bite at the Portability Apple
“Portability” is the ability of a surviving spouse to use not only his or her own estate tax exemption, but also some or all of the exemption of the first spouse to die, as long as the first spouse died in 2011 or later. With the estate tax exemption for 2017 at $5,490,000, this can allow estates of nearly $11,000,000 to escape estate tax. While a full discussion of portability is beyond the scope of this post, suffice it to say that portability can save the day in one or more of these situations: if proper estate planning has not been done, if life insurance, IRAs or retirement plans left to the surviving spouse constitute a very large portion of a couple’s assets, or if a couple’s assets of any type are worth near the value of one exemption but less than both (e.g., $4,500,000 to $10,500,000).
The catch is that if the deceased spouse’s assets are worth less than his or her exemption amount, the deceased spouse’s executor has to file a federal estate tax return (Form 706) for the deceased spouse to “claim” the deceased spouse’s unused exemption and thus invoke “portability.” This is the direct opposite of the normal rule that if a decedent’s estate is worth less than the estate tax exemption amount (after taking lifetime gifts into account), no estate tax return filing is necessary. But if the deceased spouse’s executor does not file a timely estate tax return for the deceased spouse (nine months after the date of death, or an additional six months thereafter if a request for an extension was properly filed by the nine month deadline), the ability to use portability is permanently lost. Continue reading “IRS Gives Surviving Spouses a Second (or Third) Bite at the Portability Apple”
Changes From the SEC: Confidentiality is Key
By Blake Baron
In a recent effort to foster increased public offering activity, the U.S. Securities and Exchange Commission (SEC) announced on June 29, 2017 that it will permit all companies to submit voluntary draft registration statements relating to initial public offerings (IPOs), certain follow-on offerings and national securities exchange listings for non-public review. This process will be available for nearly all offerings made in the first year after a company has entered the public reporting system. This benefit will take effect on July 10, 2017.
So, why is this an important change? Continue reading “Changes From the SEC: Confidentiality is Key”
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