2B or not 2B: The H2B Visa Solution for Employers seeking Temporary, Nonagricultural Workers

by Jen Green, Burch Law

The H2B visa option is an increasingly popular, yet still often overlooked, solution for employers needing to fill temporary labor needs. Often used in the construction or hospitality industries, this visa classification allows an employer to bring over several workers at once via a streamlined process (relative to most other employment-based visas).

The H2B, like other visa classifications, has its particular restrictions, which an experienced immigration attorney could guide you through. For example, the H2B can only be used for workers from designated countries, but the list of designated countries is quite long. Another key thing to remember about the H2B visa is that it is for temporary employment, and only for nonagricultural workers. Employers may use the visa to fill seasonal, peak load, intermittent, or one-time needs. A “season” can be surprisingly long for H2B purposes and is not clearly defined under the regulations. Basically, the employer needs to be able to show that the period where he doesn’t need the workers is predictable (for instance, during the dead of winter when work can’t be done). An experienced immigration attorney could help you understand how your work requirements fit into the H2B framework.

H2B visas can be extended in increments of one year, for a maximum stay of 3 years for a worker. But at the end of that period, the worker only must leave the USA for an uninterrupted period of 3 months before seeking readmission in H2B status. So, although the H2B visa does not provide a path to the green card, like some other “temporary” visa classifications it does allow for a basically indefinite stay in working status, with minor interruptions of mandated stays abroad. And the worker’s spouse and unmarried children under age 21 may come too – in H4 status; they just cannot work in the U.S.

The H2B classification currently has 66,000 visa numbers available each year, which are allotted in two groups of 33,000 each – the first 33,000 for the first half of the USCIS fiscal year, and the other 33,000 in the second half of that fiscal year. The 33,000 available visa numbers for the first half of fiscal year 2018 are already all taken. The H2B visa category, like most other U.S. visa categories, is oversubscribed, so employers should prepare to gather their worker and job information efficiently and be able submit it as soon as a new petition period opens. This involves careful timing and planning; the employer must submit a temporary labor certification application to the Department of Labor and obtain its certification before the employer can submit the H2B petition to the USCIS with the required documentation.

As you may perceive just from this brief overview, obtaining H2B visas for your temporary workers takes careful coordination of paperwork and timing; so employers could benefit from the help of an experienced immigration attorney to navigate the requirements and steps. If the H2B visa might help you solve your labor needs and you need help with the petition process, contact us. We’re here to help.

Elder Law – Planning for Incapacity

by Jen Green, Burch Law

No one wants to think about the possibility of becoming incapacitated. But as estate planning lawyers are all too aware, it can happen to anyone at any time. If you don’t plan for incapacity, incapacity may plan for you. It is an especial concern now that modern medicine has vastly lengthened the quantity of life, but not necessarily the quality. Elder law isn’t just for the elderly; we all need to plan ahead for ourselves and our loved ones.

But even when we don’t want to plan for incapacity, most of us are opinionated about whom we want to have access to our stuff. And who we will let make decisions for us.

The time to put systems in place to ensure that your wishes are followed in these matters is when you still have the capacity to make decisions under the law. Just because the standard of legal capacity to make a Will is pretty low is no reason to put off necessary planning. The temptation to procrastinate is great, but better to use your procrastination credits on that long-deferred plan to clean out the garage or those vaguely disturbing dark corners in the back of your closet that are starting to mysteriously expand and make strange mewling sounds….

Anyway, back to the plan: an important component of any plan to legally cement your wishes in place is the statutory durable power of attorney (your financial power of attorney). This document will allow your most trusted relatives and/or friends to manage your finances for your benefit while you are incapacitated, whether from a temporary hospital stay or something more long term. It needs to be durable to remain in effect after you become incapacitated (otherwise it basically goes away the moment you become incapacitated). And if something happens such that you can’t manage your finances as usual, you will need someone to access those funds to pay for your bills and your care.

You will also need a medical power of attorney and the accompanying release that allows a trusted loved one to make medical decisions and access your medical information.

Additionally, you will also want to be the one to choose a guardian in the event you become incapacitated. You don’t want this choice made by a court or by a stranger. Always better to plan ahead and set down your wishes in a valid legal document. If you wouldn’t let someone touch your money or make a decision for you now, you sure don’t want them stepping in later when you have no say in the matter. Guardianship comes up in many other contexts than elder law, because incapacity can affect people at all stages of life.

We can’t emphasize enough the importance of planning ahead. Our estate planning lawyers can help guide you through thinking about your choices and choosing the best options for your lifestyle. We can prepare the powers of attorney, directives, trusts, Wills, and other documents you will need to secure your wishes in the face of future eventualities.
If you have a ne’er do well relative or friend who has their eye on your estate, don’t let failure to plan provide their golden opportunity. Stop them now. You can get the last laugh. But it requires proper planning. We can help. Contact our estate planning lawyers to set up a no obligation consultation.

Cover Your Assets – Investment Planning with the Texas Series LLC


by Jen Green, Burch Law

Since 2009, Texas has offered a wonderful tool for investors, particularly those with multiple assets: the Texas Series LLC. With the traditional LLC, which already offered a fair amount of shielding from personal liability, investors enjoyed the benefits of pass-through taxation and informal management structures. With the Series LLC, the investor continues to enjoy those benefits and also gains the benefit of an additional level of shielding. For example, if you owned 10 pieces of real property, placed in Series 1 through 10 of your “RE LLC”, and someone won a judgment against Series 4, they could only collect that judgment from Series 4, not from any of the other series or from RE LLC. RE LLC could for the most part place its assets beyond judgment creditors’ reach, in that it would not enter into contracts or business dealings with other parties, being primarily the holding company for the various Series. And if those Series contained rental properties, for example, you might want to make your property management company a different LLC altogether, perhaps a traditional stand-alone LLC just for the purpose of managing those entities, keeping the assets’ ownership and management activities related to them separate.

You might think that the Series LLC sounds too complex or time-consuming to deal with, but Texas has made it a fairly user-friendly vehicle. Forming a Series LLC is straightforward (easier, in my opinion, than amending a traditional LLC to a series LLC). In filing your Certificate of Formation with the Texas Secretary of State, there is some additional language you need to add to your Certificate filing, which is set forth in the governing statute, that puts people on notice that your LLC is a Series LLC. In effect, it puts people on notice that they are going to have to work extra hard if they want to come after your assets, potentially eliminating frivolous lawsuits and nuisance “slip and fall” type suits in the bud. And you don’t have to already have multiple assets when you form the Series LLC: it will function as a traditional LLC just fine until you are ready to make the leap and start adding series of assets.

One thing to remember when forming your LLC, whether traditional or Series, Texas requires that the LLC file a Public Information Report and pay a relatively paltry franchise tax each year. Yet despite the tiny cost of this tax relative to the sizable protection your LLC could provide your assets, it always surprises me how many LLCs go into “forfeiture” status for failure to pay the franchise tax. But it is not just the LLC which is forfeit, it is also your protection from personal liability for debts, liabilities, and judgments of or against the LLC. Make a recurring calendar entry to remind yourself about this if you have to; you don’t want your shrewd foresight in forming the LLC to go for naught.

The additional duties involved in operating a Series LLC as opposed to a traditional LLC are basically:

  • Titling your properties or investments in the name of the individual Series and deeding them back out in the name of that Series; and
  • Keeping records of revenues, expenses and activities related to each Series separate for record-keeping purposes. This is very important! If you comingle these items for the various Series, you have lost the Series’ extra layer of liability protection. Think of it in terms of Texas community property law: when spouses comingle their separate property, they convert it to community property. Similarly, when Series LLC operators comingle transactions of their separate Series under a single record-keeping designation, they convert the series to a traditional LLC, where the pool of commingled assets can be reached more easily by creditors. Commingling Series’ transactions makes it easy to pierce the corporate veil and defeats the purpose of creating a Series LLC in the first place.

The Series LLC is treated as a single legal entity; technically, the individual Series which it comprises are not separate legal entities, even though they can largely behave as such in their business dealings. You can even obtain separate EIN numbers for each Series if you wish, though in most circumstances that would simply add unnecessary complexity. You also do not need separate bank accounts for each Series; one bank account for the entire LLC will do, so long as you notate transactions for the specific series to which they belong. For instance: January rental payment received-Series 1-$1600; HVAC repairs-Series 3-$2000, etc.

For ease of transaction tracking and record-keeping, you may want to limit the number of Series held within a single LLC to a dozen or less. You will also want to keep in separate LLCS investments with very different tax or debt structures or liability issues or exposure (for example, as mentioned previously, keep management/activity separate from assets). For instance, if you own several residential rental properties, several commercial rental properties, and several parcels of land for development, you might keep each of those asset bundles in three separate Series LLCs.

Texas is a very business-friendly environment compared to most other U.S. states, and the Series LLC is another tool Texas offers to help make your business and investment activities a little easier. If you have questions about how the Series LLC can work for you, give us a call. We can help you make the Texas Series LLC and its extra layer of liability protection happen!

Chain Migration and the Priority Date

by Jen Green, Burch Law

For any of you who have already immigrated to the United States and petitioned for relatives to join you here, you know that the wait for a priority date to become current can be exceedingly long. And the levels of paperwork and effort involved are strenuous, especially if you try to navigate the process on your own without an experienced immigration attorney.

For applicants from certain countries with high levels of immigration to the U.S., and for certain employment- or family-based categories of potential immigrants, those waits can be half a lifetime or more. And priority dates backlog and become current in a rather arbitrary pattern. Some years ago, there was a specific category where if someone had petitioned for a young relative, by the time their priority date became current, the person would have already been dead for 50 years (based upon then-average government processing times in that category and an average lifespan). Fortunately, that category later became somewhat more current.

Somewhat. Let’s look at some of the current wait times for family-based immigrant petitions. Current “final action” priority dates for married sons and daughters of U.S. citizens, and for brothers and sisters of adult U.S. citizens are in the 10/01/1994 – 11/08/1997 range for people from the Philippines and from Mexico, for example. By the time some U.S. citizen petitioners hear from the government that visa numbers are available for their relatives, both they and their relatives may well have forgotten that the petitions were ever filed. In effective, the chain of migration builds up a lot of rust during the interim between filing and actual immigration to the U.S.

Another snag in the process is that there are limited numbers of visa numbers available in any given year for each category. The two categories mentioned in the paragraph above have 23,400 and 65,000 visa numbers available respectively, and those numbers are not specific to any one country, but to all of them together.

You may have been hearing more about chain migration in the news lately. The administration wants to curtail chain migration. The argument actually makes a certain amount of sense, as no country can sustain unlimited immigration. It’s an argument based on numbers, very similar actually to the argument I run across quite often in dealing with cat rescue: pet advocates recommend neutering your cat or dog because one female cat, for example, left unchecked to reproduce, could produce 100 kittens in her reproductive life, and a single pair of cats and their kittens could produce more than 420,000 kittens in just 7 years. (Fayette Humane Society: http://fayettehumane.org/fun-facts/) That’s way more cat litter than anyone really wants to deal with. Even at the lower end of the spectrum of estimates, you still get nearly 3,000 cats. (Unspayed Cat to Kitten Calculator: http://calculate-this.com/420000-kittens-unspayed-cat-kitten-calculator.) Still a lot of cat litter.

So, migration is basically a numbers game. In a numbers game where the chain might be cut off at any time, it is very important to get into the queue while you still can. If you are a legal permanent resident or a U.S. citizen with close relatives abroad whom you would like to bring over, file those petitions for them now. Get a priority date while you still can. We can help. The wait may be long, but at least you and your family members would be on the list.