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NC Law Blog is an online legal magazine by and for North Carolina lawyers. It is sponsored by the North Carolina Bar Association Center for Practice Management.

Monday
Mar312014

Divorce Calendar 

By Ketan Soni of Hull and Chandler

I try to make my life and my client's lives as easy as possible through their divorce. One of the most frustrating things can be trying to map out a schedule around what's going on with school. A few months ago, I demonstrated a calendar I created based on the Charlotte Mecklenburg School system. This tip was primarily a way to make your own mediations work better. 

This calendar can also be useful to your clients and other folks dealing with custody. I update my calendar once a year, which means anyone who has previously subscribed automatically gets updates without ever having to click a button. Rest assured that there is no tracking, monitoring or other type of advertising involved in my calendar. If you’re ever worried about this type of problem, simply create your own calendar. If you’re not sure how, I’d be happy to show you.

I've now added the 2014-2015 Charlotte Mecklenburg School calendar to my own calendars.  You can click here to subscribe to that calendar. If you're using Outlook or Apple iCal, clicking on this link should automatically add the calendar. Previously, I also gave you the Wake County School system calendar, including the traditional and Year Round Tracks.  

I update the Mecklenburg calendar every year, so you won't have to keep clicking on this link. If you have created your own calendar in your county for others, please share!  If you need help, feel free to contact me here.

Monday
Mar242014

Immigration for the Business Owner – Part 2

By John Szymankiewicz

So, I spent the last installment of this blog talking about the different terms, kinds, and nuances in immigration, at least at a high level. I did that so I could write this blog post – talking about what and why certain things are important to small business owners. So, here we go:

Beware Scams

If you or one of your employees has a concern or immigration issue, beware of scams set up specifically to take advantage of immigrants and small businesses. Many people have be victimized by individuals who claim they are “immigration experts.” If you have an immigration concern, seek out a licensed attorney with experience in immigration (by the way, that’s not me. I can spot the issues, but I don’t know that I’d be best person to help you navigate the system). Specifically, be aware that there are very important differences between the legal profession (and the practice of law) in the US versus other countries. For example, a Notario Publico (in Mexico) is not the same as a Notary Public in the US (the TX Secretary of State has a good comparison between the two) – as a consequence, many people have gone to a Notary Public thinking that they can provide services that, in the US, only a lawyer may provide. Additionally, the ABA (American Bar Association) has initiated the Fight Notario Fraud Project specifically to combat this issue.

If you have any concern whether the person you’re talking to is a licensed attorney in NC, look them up at the NC State BarLawyer Directory (if they’re not on it, they’re not a licensed attorney in NC).

By the way, I found this really useful chart on the different types of non-immigrant Visas.

Student Visas

Generally, Student Visas (F Visas) ONLY allow the student in the country to study – not to work. Employing a person in the US on a Student Visa may expose you to liability and certainly exposes them to potential revocation of their visa (and, therefore deportation). 

Some Student Visas (F-1 Visas) do allow for an Optional Practical Training period. However, both the student and the work/employment must qualify for OPT Period approval. Be sure that the student you’re hiring is approved to work doing the kind of work you’re hiring them to do.

Work Status Verification

All employers in the US are required to verify the employment status of all employees hired since 1986. This means completing an “I-9” form and keeping those records up to date as necessary. I know some companies which, as a matter of policy, make their employees update their I-9’s every year. It’s not a bad “best practice.”

Also, employers in NC with more than 25 or more employees are required to use E-Verify to verify the employment status of all employees. This requirement was established for NC employers as of July 5, 2013. Additionally, ALL Federal Contractors must participate in E-Verify. But, keep in mind that E-Verify DOES NOT replace the required I-9 Verification Process. E-Verify is an “in addition to” not an “instead of.”

Business Structure and Organization

The immigration status of owners and/or employees can also have an effect on how best to organize the business. For example, some general principles include:

  • Non-Resident Aliens may not be shareholders in an S-Corp;
  • Companies owned (51% control or more) by American Citizens or Green Card holders cannot sponsor E1/E2 (Treaty Trader/Treaty Investor) Visas;
  • If a company sponsoring E1/E2 Visas is acquired by a company which is owned (51% control or more) by American Citizens or Green Card holders, the E1/E2 Visa(s) can be revoked; and
  • Companies owned (51% control or more) by American Citizens or Green Card holders cannot sponsor L-1 Visas (Managers assigned US positions by a foreign owned company).

So, be aware of these (and other, more nuanced) limitations as you look at starting or organizing a business where you’re a Visa holder or if you’re looking to sponsor individuals needing work Visas.

Business Purchase

If you’re looking to purchase an existing business, be sure to make employment status verification part of your “due diligence” (business opportunity evaluation) process. Otherwise you could cause yourself some significant headaches depending on whether you have employees holding Visas.

Conclusion

So:

  • If you’re starting a business and looking to hire Visa holders, Non-Resident Aliens, or other non-US Citizens, be sure you know the requirements for your specific situation. 
  • If you’re a business owner looking to sponsor Visas for workers, be sure you understand the limitations of  your business.
  • If you’re ANY KIND of business owner, be sure to make I-9 Employment Status Verification part of your standard procedure.

Immigration is complex and highly technical area of Federal law, if you have concerns or issues, be sure to consult a licensed attorney with experience in immigration law.

Monday
Feb242014

Ten Years Later: NC Catches Up With Rule 702, Adopts Daubert and Bids Adieu to Howerton

By Amanda Ray

Originally Posted on The Compass

In January, the North Carolina Court of Appeals decided State v. McGrady, in which it finally addressed the impact of the 2011 amendments to Rule 702.  McGrady confirmed what many practitioners have believed for two and a half years — that North Carolina State Courts must now adhere to and apply Daubert standards to expert witnesses and opinion testimony. 

McGrady was convicted of shooting and killing his cousin.  On appeal he argued that his expert’s testimony regarding the doctrine of “use of force” was wrongfully excluded.  The expert testified and opined that McGrady’s cousin exhibited a number of physiological and circumstantial “pre-attack cues” that were “consistent with exhibition by an individual that an attack was likely imminent,” prompting McGrady to shoot him.  He also testified that the rounds were fired in “somewhere around 1.8 seconds.”   The scientific basis for his opinions came from published articles on use of force and the training he received “by some of those authors and studies that I have myself been involved in.”    He claimed that this information is regularly relied on by people in the field of use of force, but he did not know its “potential rate of error.”  He also had no medical degree or medical education.

The trial court found that: (1) the expert’s opinions were based on medical knowledge that he was not qualified to discuss; (2) his testimony was not helpful to the jury; (3)  he was not competent to testify about reaction times; (4) his testimony was not based on sufficient facts or data; (5) his testimony was not the product of reliable principles or methods; (6) his methods had not been subject to peer review; and (7) his opinions were based on speculation.  The Court of Appeals affirmed the exclusion of the expert testimony, and discussed the October 2011 changes to NC Rule of Evidence 702(a).  Noting that the rule was amended to include additional criteria for the admission of expert testimony (“the testimony is based upon sufficient facts or data[;] the testimony is the product of reliable principles and methods[; and] the witness has applied the principles and methods reliably to the facts of the case”), the Court confirmed that the amendment replaces the expert witness standard from Howerton v. Arai Helmet with the U.S. Supreme Court’s decision in Daubert.  The Court further noted that the trial judge should serve as a gatekeeper and determine whether expert testimony is based on the scientific method, whether the techniques or methods have been subjected to peer review and publication, the known or potential rate of error, the existence and maintenance of standards controlling the technique’s operation, and whether the theory or technique is generally accepted as reliable in the relevant scientific community. The Court concluded that the trial court employed the appropriate standard in evaluating the expert’s testimony, and did not abuse its discretion by excluding it.

So, for the many who believed that Howerton’s anti-“mechanistic” approach served as an unfortunate detour on the road of evidentiary jurisprudence, it would seem that a course correction has occurred.  Following the General Assembly’s lead, the Court of Appeals has officially adoptedDaubert and embarked on a new direction that adds both a new phase to many cases and new gatekeeping obligations to Superior Court Judges.

Tuesday
Feb182014

Immigration for the Business Owner – Part 1

Click for John's WebsiteBy John Szymankiewicz

I had a question come up recently from a client and I had to learn a lot more about immigration law than I had ever intended.  I thought I’d try and share what I learned as a sort of primer for businesses to think about when addressing non-native labor issues.

Background

The issue that came up with my client was related to a Visa. If you’re like me, when you hear “visa” you think about how much Best Buy charged for that new Star Wars Blu-ray Boxed set you bought someone for their birthday about 30 days ago. But for many, the term “visa” brings a mountain of work, worry, and consternation.  I hope you’ll forgive me, but Part 1 of this article really focuses just on identifying the basics of immigration and visas, before really getting into the issues.

Immigration

For many people in the US, we take our citizenship for granted. For a large part of the rest of the world, citizenship – particularly US citizenship – is a big deal. For someone from another country, the path to citizenship generally goes like this: non-immigrant visa -> immigrant visa -> naturalization -> citizen. So, let’s take a look at what each of those concepts mean.

Non-immigrant Visa 

A non-immigrant Visa is a limited residency document. It’s covers a broad swath of circumstances, but focuses on one main principle: the person is in the country for a limited time. On a non-immigrant Visa, you can visit the US for work, recreation, school/study, or one of a (very) long list of possible categories of visit (Visa classes start with “A” and go through “U”). You can apply for a non-immigrant Visa at the US consulate in the country of origin.

Immigrant Visa

This is the really popular topic. An immigrant Visa is colloquially referred to as a “green card.” The term comes from the fact that the wallet-sized cards used to have a green background. A better description of the immigrant Visa would be “lawful permanent residence” application or permit. This Visa allows foreign nationals to live and work in the US without an expiration date. The rights and privileges are similar to the non-immigrant status, except that they continue indefinitely.

Naturalization

A foreign national can become a “naturalized” US citizen. Naturalization is no joke. For many this is the culmination of years of hard effort, work, and frustration. To become a US citizen, a foreign national must have spent a specific time as a permanent resident (see Immigrant Visa), apply for citizenship, show good moral character, and demonstrate knowledge of English and civics. I’ve heard some of the questions on the civics test – there are a lot of natural born US citizens that don’t know that much about our government!

Asylum

This one is always in the movies or the news. What is “asylum?” Well, in short, it’s when the individual is granted limited residency to protect them from persecution they would otherwise receive. Julian Assange and Edward Snowden have been in the news of late on this front. But, the more ordinary, and often more meaningful, course of business is the refugee. People persecuted for their religion, nationality, race, social group, political opinion, or gender (in certain limited cases) can seek asylum (or “refugee status”) if they’re already in the US. To qualify, the individual must apply within a year of entry or when their circumstances qualify them for asylum and they must appear for a hearing on the matter before an Asylum Officer.

Temporary Protected Status

The US has developed this category for individuals who cannot return to their home countries because of calamities (such as natural disasters, civil unrest, or political upheaval). This temporary status, as the name implies, is temporary but can also be quite lengthy. I had read that some foreign nationals of El Salvador had been granted Temporary Protected Status in 2001. These same El Salvador nationals have recently had their status extended until at least 2015. However long the Temporary Protected Status lasts, it does not – in itself- provide a path to citizenship. 

Visa Waivers

If the categories weren’t complicated enough, there’s also a subset of countries (37 of them) whose citizens do not need a visa to enter the US; so long as they are visiting for pleasure and for no more than 90 days.

Executive Office for Immigration Review

Also known as “Immigration Court,” the EOIR serves to deal with all the various interfaces of the above classes as well as to address all the “in between” and “gray areas” that aren’t accounted for elsewhere. This court is an administrative court, not a court of law – so bear that in mind. But, this court is designed to adjudicate the issues that immigration status raises, though cases may be transferred to other federal courts in certain circumstances. 

Stay tuned for Part 2 – where we actually get to the question involved!

Monday
Feb172014

Unplugged

Click for Christie's Website

By Christie Foppiano

During this our most recent winter weather event, I was without electricity.  I began thinking, well, about all the things I need electricity to do.  Not knowing how long the outage would last, I decided to limit the use of my smart phone to necessary activities.  That meant (almost) no tweeting, emailing, texting, calling or web surfing.  While necessary to a legal career, they are not important when you are rationing battery use in case of emergency.  Without the internet, my laptop was not all that useful either.  On the bright side, I did remember that it was time to submit my post for the NC Law Blog and I could, in fact, type - at least until my battery died.  

I was struck by how difficult it was to be productive.  How on earth did people manage to practice law and do anything else without the benefit of modern technology?  I imagined women with note pads, lots of typing and fervent prayers that there would be no revisions or typographical errors.  And how did lawyers get business?  Certainly not through on-line marketing or social media plans.  I suppose people were engaged in their communities and might have even known their clients as friends and neighbors before representing them.  

So, how did I make it through two whole hours without electricity?  Having cleaned out my refrigerator during the last winter storm, I was freed up to engage in more entertaining pursuits.  I played The Game of Life with my daughters while listening to music on our solar, hand-crank radio.  I lost the game, despite being a doctor who made more money than I really do.  And thankfully, being a grandmother of eleven was only a temporary and imaginary condition.      

My takeaways are just reminders of what we all already know.  In your work life, learn from lawyers past.  With the extra time that technology affords, do more than tweet or blog.  Interact with real live people.  In your personal life, don’t wait for a power outage to literally unplug.  Take some time out and engage in the real game of life with family and friends.  You never know just what might happen!