Integrity Legal

Archive for the ‘Legal Opinion’ Category

12th January 2012

It recently came to this blogger’s attention that the Prime Minister of the Kingdom of Thailand made no comment regarding the possibility of a Cabinet reshuffle although she did note that attendance at upcoming children’s day festivities is apparently encouraged by the Thai government. To quote directly from the official website of the Thai-ASEAN (Association of Southeast Asian Nations) News Network at Tannetwork.tv:

Prime Minister Yingluck Shinawatra avoided answering questions about a possible Cabinet reshuffle today and only smiled at reporters...The PM added that she would like to invite children to attend the Children’s Day celebration on Saturday at Government House as she has prepared some surprises for the kids…”

Concurrently it also came to this blogger’s attention that the government of Canada seems to have made some comments regarding same sex marriages performed in that nation. To quote directly from the website Advocate.com:

“Thousands of non-resident same-sex couples married in Canada may not be legally wed if the marriage is not recognized in their home country or state, according to the Canadian government…”

The issues surrounding the status of same sex couples has been an issue of debate in the United States of America especially as the Presidential elections continue to draw closer. However, politics does not appear to be the core concern of those who are the most effected by these issues. For example, those families wishing to maintain a same sex bi-national relationship with a non-American in the United States could be deeply impacted by both American and Canadian policy regarding same sex marriage. This issue could further be hypothetically defined where the same sex marriage (or civil union depending upon the jurisdiction) takes place outside of the United States as such a fact pattern could place the merits of the marriage under the purview of the United States Citizenship and Immigration Service (USCIS). How this issue will ultimately be resolved in North America remains to be seen, there is one thing that seems to be a certainty: this issue is not one that will simply disappear since there are many in the LGBT (Lesbian, Gay, Bisexual, and Transgender) Community who wish to see full equality in matters reflecting their marital status. American Courts have dealt with this issue in recent months although a definitive decision does not seem to have been reached hopefully this issue will be resolved in short order.

For related information please see: Full Faith and Credit Clause.

For general legal information pertaining to South East Asia please: Legal.

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26th July 2011

It recently came to this blogger’s attention that there may be a pending matter coming before the US Courts pertaining to same sex marriage in the sovereign State of New York. In order to provide further insight it is necessary to quote directly from the website of the Washington Blade, WashingtonBlade.com:

Before the ink had even dried on many of the first marriage licenses for same-sex couples in New York, the state Attorney General was busy filing a brief in one of the several cases against the Federal Defense of Marriage Act, which prevents the Federal Government from recognizing same-sex marriages performed in the states where such marriages are legal, and preempts the Constitutional ‘Full Faith and Credit’ cause by allowing states to refuse to recognize some marriages performed in elsewhere. Tuesday, Attorney General Eric Schneiderman filed an Amicus Curie brief in the U.S. District Court for the Southern District of New York in the Windsor v. United States, a case brought against the government by the American Civil Liberties Union on behalf of New York widow Edie Windsor. When her wife Thea passed away in 2009, Edie was forced to pay penalties most married couples don’t have to pay because her marriage was not recognized, though the two had shared a life together for over 44 years. [sic]

The administration of this web log strongly encourages interested readers to click on the relevant hyperlinks above to read more from this always interesting website.

Frequent readers of this web log may recall that issues pertaining to Full Faith and Credit pursuant to the Full Faith and Credit Clause of the United States Constitution are central to the issue of federal recognition of State licensed same sex marriages. This blogger has always felt that the issue of Full Faith and Credit in the context of same sex marriage will likely be adjudicated in the American Court system as there are those who would argue that the United States Congress does not have the political will to pass legislation to rectify the current discrimination imposed by the so-called “Defense of Marriage Act” (DOMA). This argument is generally made notwithstanding the fact that legislators such a Representative Jerrold Nadler have introduced legislation such as the Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) which would alleviate immigration discrimination and provide “certainty” to State legalized and/or solemnized same sex marriages, respectively.

Congressional reluctance regarding the repeal of DOMA would seem to exist notwithstanding the fact that there is a fundamentally pro-States’ Rights element which augers in favor of DOMA repeal. States’ Rights arguments are often undertaken by those on the so-called “political right” in America politics. Meanwhile, there is a concurrent Civil Rights and Equal Protection argument which seems to operate in favor of DOMA repeal. Such arguments are often espoused by members of the so-called “political left” in American politics. How these issues will ultimately be resolved remains to be seen, but one this is certain: this situation makes for interesting political and legal theater.

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7th May 2011

It is unfortunate that there is a seeming trend within the zeitgeist of the American collective consciousness to immediately associate the term “States’ Rights” with notions of slavery, discrimination, and, in a sense, political corruption. It is this author’s opinion that much of the animosity surrounding the term “States’ Rights” is derived from some egregiously wrongheaded positions held by bigoted and xenophobic American politicians in years past. This trend is unfortunate because it is this author’s opinion that the very diversity of jurisprudence in an intrastate and interstate jurisdictional context within the American Union (by this term, this author refers to the United States of America as enshrined in the United States Constitution and the amendments thereto in conjunction with the 50 several sovereign United States each having their own State Constitution) is the very sinew which reinforces America’s economic strength on the global stage. Others associate the term “States’ Rights” with secessionist movements in years past. To be clear, this author has always believed that America’s strength is in the Rights of the Several States WITHIN THE UNION! American Founder Benjamin Franklin once famously stated: “We must all hang together, or assuredly we shall all hang separately”. This statement is no less true now than at the time it was uttered. America’s strength lies in her simultaneous interstate and intrastate diversity buttressed by a virtually monolithic national government in matters pertaining to foreign affairs and national defense. It is something of a paradox that is both vexing to outsiders and the source of America’s ability to remain fluid in both a political and economic sense. In short: this duality is the secret to America’s historical success.

Full Faith and Credit: The Clause That Binds The American Republic

The Full Faith and Credit Clause of the United States Constitution could be viewed non-literally as the mortar securing the bricks which maintain the indomitable structure acting as a repository for the ideals of the American republic. Around the Full Faith and Credit Clause the Union of American jurisprudence is maintained. Therefore, analysis of said Clause is important for our purposes. This author has come to find much insight in studying the thoughts of Justice Robert H. Jackson on this issue, to quote directly from Justice Jackson:

“By other articles of the Constitution our forefathers created a political union among otherwise independent and sovereign states. By other provisions, too, they sought to integrate the economic life of the country. By the full faith and credit clause they sought to federalize the separate and independent state legal systems by the overriding principle of reciprocal recognition of public acts, records, and judicial proceedings. It was placed foremost among those measures which would guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence, but without aggrandizement of federal power at the expense of the states.”

This author has often found that Justice Jackson is a unique resource on these issues as he understood the fundamentals of American law through long practice and study of New York law and later study of Federal law in his capacity as a Supreme Court Justice. Concurrently, Justice Jackson also was a trailblazer in matters pertaining to international law especially in his capacity as prosecutor during the Nuremberg trials. Therefore, this author finds Justice Jackson’s epitaph to be one of the most fitting: “He kept the ancient landmarks and built the new.” Such a notion should be palpable as America looks across the horizon of the 21st century.

Legal Diversity in an American Context

The motto on the Seal of the United States is “E Pluribus Unum”. This phrase is Latin and translates to English as “Out of Many, One”. Many Americans have long associated this phrase with the notion of the American “melting pot,” a phrase which alludes to the fact that America is a racially, ethnically, ideologically, and religiously diverse nation. This is very true and this fact has been one of the cornerstones of America’s relative economic success since her founding. However, rather few take note of the fact that from the perspective of an attorney this phrase could also allude to the notion of a legally stratified republic in a geographic sense as each sovereign American State has her own jurisprudence which operates simultaneously with much of that of the United States federal government. Under some circumstances, the federal government’s authority may override that of the States, but such circumstances, in this author’s opinion, are likely to be of less concern moving forward in light of the fact that the internet and World Wide Web have integrated the global economic platform to the point that true “Long Tail” economics is creating novelty and comparative advantage for the 50 states in both an interstate context as well as an intrastate context. This is also true in a global context as businesses located in the 50 States are likely to continue to do business in increasingly creative ways both domestically and internationally. The author does not mean to imply that there will be less Federal oversight in the future as there will likely be regulations and scrutiny emanating from federal authorities, but America is incredibly flexible when it suits her interests and as the business environment in America evolves so too does it seem likely that State and Federal regulatory schemes will evolve as well. This current state of affairs is likely to be the precursor to future economic dynamism in the relatively long term and could be the key to economic success in the short term as well.

Meanwhile, an understanding of States’ Rights, in conjunction with an understanding of the enumerated powers of the United States Federal government can provide a sort of framework for thinking about the opportunities which can be exploited by Americans in an increasingly economically integrated global marketplace of not only goods, services, and commodities; but ideas as well. For example, the State of North Dakota and the State of Utah have made interesting decisions regarding intrastate monetary and financial policy. North Dakota has opted for a sort of miniaturized Federal Reserve in that State in the form of the Bank of North Dakota, which is considered by some to be a departure from “mainstream” thinking regarding State finances. Also, the State of Utah has recently enacted a legal tender reform bill which appears to recognize gold and silver coinage minted by the federal government as legal tender within that jurisdiction. This legislation also appears to have changed the way in which the exchange of gold and silver coins are taxed in an intrastate context as the bill apparently repeals state taxation of such coinage. Those interested in further information on these issues are well advised to contact an attorney licensed to practice law in the State of Utah (and/or North Dakota, for that matter), as further commentary by this author on that subject would simply be an exercise in speculation. What is clear merely from the information noted above: American States are becoming increasingly creative and dynamic in terms of intrastate activity and this relatively new dynamism may be the driving force behind an eventually resurgent American economy.

America: A Nation of Webmasters

The Emperor Napoleon Bonaparte once snidely declared: “L’Angleterre est une nation de boutiquiers.” This statement could be roughly translated to state that: “England is a nation of shopkeepers”. Unfortunately for Napoleon that nation of shopkeepers went on the defeat his Grand Army at the Battle of Waterloo and thereafter administer an Empire upon which the sun never set. This historical factoid is important for the reader to understand because it elucidates an analogy in a modern context. Namely, the United States of America, due to the rise of e-commerce, appears set upon the path to becoming a nation of e-shopkeepers. These e-shopkeepers, e-commerce businesses, and webmasters are increasingly coming to form a major component of the American economy at a time when some areas of the economy are showing signs of stagnation. Bearing this in mind, the reader is encouraged to note a quotation from Sir Winston Churchill: “Some see private enterprise as a predatory target to be shot, others as a cow to be milked, but few are those who see it as a sturdy horse pulling the wagon.” The reader is encouraged to note the fact that Churchill was a British-American and quite proud to be so. Churchill understood that strong nations are built upon the foundation of a vibrant free market as well as a thriving business environment and he knew this from long study of American, British, and world history. In this author’s opinion, the wagon of America will continue to be drawn by the forces of her citizenry’s entrepreneurialism, but much of the commerce which emanates from the United States in the future will be on platforms which exist in cyberspace. Therefore, such commerce will not have all of the same attributes as that of years past.

America, China, Thailand, ASEAN, and Greater Asia

As the 21st century rolls on it seems likely that America will be increasingly engaged with Asia in both a diplomatic context as well as a commercial context. This commercial engagement is increasingly likely to occur across the spectrum of business as American companies large and small trade goods, services, and intellectual property with jurisdictions in Asia. While most Americans are aware of the growing economic might of Greater China comparatively few are aware of increasingly vibrant economies of countries such as the Kingdom of Thailand and the Kingdom of Cambodia. Meanwhile, the somewhat young Association of Southeast Asian Nations (ASEAN) would seem to be on track toward creating economic efficiencies across Southeast Asia to the apparent benefit of all concerned. In this author’s opinion, Americans would be wise to remain mindful of the East Asian and Southeast Asian markets as there appears virtually no limit to the economic potential inherent in some of these economies. Hopefully, through skillful statesmanship, keen understanding of relevant law, and shrewd business acumen America and the American people can benefit from economic developments in Asia and throughout the world.

For related information please see: Full Faith and Credit Clause or ecommerce.

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4th April 2011

It recently came to this blogger’s attention that the Governor of the State of Utah has signed legislation which would recognize gold and silver as legal tender for intrastate transactions. To quote directly from the Constitutional Tender Blog, but initially found by this blogger on the website DGCMagazine.com:

On Friday, March 25th, Gov. Gary Herbert signed HB 317, the “Utah Legal Tender Act,” into law.

The law recognizes gold and silver coins issued by the federal government as legal currency in the state. The coins do not replace the current paper currency, but may be used and accepted voluntarily as an alternative.

The administration of this blog highly recommends that readers click on the hyperlinks above to read this article in its entirety as it can provide very valuable insight into this evolving issue.

This notion of something akin to an “alternative currency system” has been discussed in the context of State legal tender reform in many American States recently, but there are two notable jurisdictions that have taken proactive steps to enact legislation which would allow usage of gold and silver in an intrastate context. One of these states is Utah while the other is Virginia. It is this blogger’s understanding that as of the time of this writing the State of Virginia has yet to enact similar legislation although it remains to be seen whether such legislation will actually see passage.

One interesting aspect of this issue involves the ramifications for financial institutions in the State of Utah. The aforementioned article went on to point out:

The law exempts the sale of gold and silver coins from the state capital gains tax, since you would simply be exchanging one form of legal tender currency for another. It also calls for a committee to study alternative currencies for the State and a means for Utahans to pay their taxes with gold and silver coins.

Gold and silver coins issued by the federal government are already legal tender, of course, and can be used to purchase items and pay debts owed. However, they could only be used at the face value of the coins — which is ridiculously lower than the value of the precious metal content of the coins. If you were to use them at the actual value of the coins, you would face a capital gains tax on the “profit” you gained over the face value.

Clearly, the provisions of this act could have a significant impact upon the economies of the State of Utah, the United States Federal government, and Greater North America. Bearing this in mind the reader is encouraged to consider the possible reverberations of this legislation in a global context as the promulgation, passage, and enactment of this bill, and possible similar future legislation in other American States; could prove to be tremendous for jurisdictions such as Thailand, China, and the Association of Southeast Asian Nations (ASEAN). The overall long term effect of this legislation remains to be seen, but this is definitely something that could have an impact upon the business environment in the United States and elsewhere.

Those interested in receiving an in-depth legal analysis of the issues associated with legal tender reform in Utah are highly encouraged to contact a licensed attorney in Utah. The administration of this blog reminds readers that it is always prudent to ascertain the credentials of anyone claiming to be a licensed lawyer in any jurisdiction.

For related information please see: Integrity Legal.

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31st January 2011

The issue of Federal recognition of same sex marriage is one which remains stuck in this bloggers mind like a splinter. The issue is vexing because the United States Federal government has clearly usurped sovereign State prerogatives on the issue while simultaneously trampling upon individual civil rights to equal protection under the laws of the United States as well as the fundamental Constitutional right to freely and peaceably associate with whomever one wishes to associate with. That said, the issue is, in this blogger’s opinion, best analyzed pursuant to the Full Faith and Credit Clause of the Constitution of the USA.

The Defense of Marriage Act (DOMA) currently prohibits the United States Federal government from recognizing a marriage or civil union between two individuals of the same sex. Most legal scholars approach the issue of same sex marriage and the preclusion of Federal recognition from a civil rights perspective. Although this blogger wholeheartedly agrees that LGBT rights issues do generally fall under the umbrella of civil liberties, the ramifications of DOMA upon the sovereign American States is the most unfortunate aspect of the current state of affairs.

To quote directly from Wikipedia.com:

In Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington, D.C., marriages for same-sex couples are legal and currently performed.

This is important to note as there are American States which explicitly prohibit the recognition of marriages between two people of the the same sex. Conversely, as noted above, there are currently five (5) states which allow same sex marriage. This has lead to a situation in which there is little interstate uniformity regarding this issue. As their site puts things so succinctly it may be best to quote Wikipedia.com’s entry on this issue further:

There has been much speculation on the clause’s possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. Between 1996 and 2004, 39 states passed their own laws and constitutional amendments, sometimes called “mini DOMAs,” which define marriage as consisting solely of opposite-sex couples. Most of these “mini DOMAs” explicitly prohibit the state from honoring same-sex marriages performed in other states and countries. Conversely, several states have legalized same-sex marriage, either legislatively or by state supreme court judgment.

The United States Supreme Court has not ruled on how (if at all) these laws are affected by the Full Faith and Credit Clause. However, in August 2007, a federal appeals court held that the clause did require Oklahoma to recognize adoptions by same-sex couples which were finalized in other states.[18]

If the Full Faith and Credit clause is given its traditional interpretation, it has no application to same-sex marriage, and the DOMA legislation is superfluous and even dangerous, as it may lead to a misconstruction of the Full Faith and Credit clause. If a state is required to recognize a same sex marriage, it will be pursuant to the Equal Protection Clause, as was the case with respect to interracial marriages.

The final paragraph of this citation is most notable to this blogger as it is the section in which he is in disagreement. To understand the reasoning behind this blogger’s disbelief in the assertions stated in this Wikipedia.com posting one must first read the actual text of the Full Faith and Credit Clause of the US Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It is virtually self-evident, in this author’s opinion, that the plain language of the Full Faith and Credit Clause will compel broad recognition of same sex marriage in the USA. Rather than looking at the issue from a civil rights perspective (which requires lengthy analysis into what are, in this author’s opinion, superfluous issues such as personal or religious feeling regarding same sex marriage which have no place in a reasoned legal analysis of the issue) simply examine the plain language of the Clause itself. The clause explicitly states that Full Faith and Credit SHALL be given to the public RECORDS of every other State.

What does this mean from a practical perspective? To use a hypothetical: two people of the same sex go to the State of Iowa (a jurisdiction which, according to a citation above, both recognizes and solemnizes same sex marriage) and get married. To quote the official Iowa County, Iowa website:

Iowa Vital Records are official registrations of births, deaths and marriages. Certified copies of Vital Records can be obtained from a County Recorder’s office or the Iowa Department of Public Health.

Once an official record is made of a registered same sex marriage does not the Full Faith and Credit Clause operate to compel interstate recognition of such a record? One would think, but there are exceptions to this kind of broad application of the Full Faith and Credit Clause as States which have clear public policies in conflict with foreign State Judgments, Acts, or Records may be permitted to ignore such Judgments, Acts, or Records (foreign judgments always seem to be accorded more preference from an interstate enforcement standpoint).

InterState recognition of same sex marriage, or as this blogger prefers to refer to it: Horizontal Full Faith and Credit of same sex marriage; is not really the main thrust of this post as the more pressing concern for the purposes of this article is Federal recognition of same sex marriage notwithstanding the Defense of Marriage Act (DOMA). The interstate implications of some states fully recognizing same sex marriage while other states fail to recognize such unions are interesting topics, but the main issue of this posting is what this blogger refers to as Vertical Full Faith and Credit. Namely, Federal recognition of same sex marriage lawfully solemnized in a sovereign State. Since when was the United States Federal government able to pick and choose which State laws it was willing to recognize? To quote directly from USLegal.com:

The full faith and credit doctrine as applicable to the federal courts in recognizing the records and judicial proceedings of state courts is contained in 28 U.S.C. § 1738.  The full faith and credit rule pertains to recognition by state courts of the records and judicial proceedings of courts of sister States; this includes every court within the United States.  This provision also includes recognition of the records and proceedings of the courts of any territory or any country subject to the jurisdiction of the United States.  By this provision, the federal courts are also bound to give to the judgments of the state courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of their sister States…

Pursuant to a plain language analysis of the Constitution it is this author’s opinion that the Defense of Marriage Act is unconstitutional as it requires the Federal government to disregard the Acts, Records, and Judgments creating same sex marital relationships within the jurisdiction of Sovereign States in direct violation of the plain language of the Full Faith and Credit Clause itself. Although there is a Civil Rights perspective to this issue, the major point that should not be overlooked is that fact that the US Congress is attempting, through enforcement of the Defense of Marriage Act, to dictate to the States what shall constitute a valid marriage. In the past, legalization and solemnization of marriage was within the exclusive bailiwick of the State especially as such matters tend to pertain to public health and safety issues.

This has very large practical implications especially for same sex bi-national couples as the Federal government, pursuant to DOMA, cannot grant American family visa benefits to the same sex partner of a US Citizen (notwithstanding the fact that the couple may have solemnized a legally binding marriage within one of the sovereign American States that allows same sex marriages). Hopefully this injustice will be dealt with soon as it is unfortunate that the rights of the States and the people are being disregarded as a result of DOMA’s continued enforcement.

In recent months, efforts have been made to pass legislation such as the Uniting American Families Act (UAFA). Bills such as this would mitigate some of the discrimination which is routinely deployed against same sex bi-national families as the language of the proposed bill (and that of those similar to it) would allow for the “permanent partners” of American Citizens and lawful permanent residents to apply for US visa benefits in much the same manner as foreign fiancees and spouses of US Citizens and lawful permanent residents. This legislation, and that like it, is a good step in the right direction, but it does not address the myriad legal rights and privileges routinely deprived to same sex couples under the current Federal regime.

For related information please see: Same Sex Partner Visa.

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16th January 2011

There was a recent story on the Telegraph.co.uk website entitled, “Boy, 9, has Disney World trip ruined after US Immigration rules him a threat” it was reported that a 9 year old child was denied a US tourist visa to the United States. To quote directly from the article:

They said there was a risk he would not leave the US at the end of his holiday and refused his application under Section 214 (b) of the Immigration and Nationality Act.

This blogger noticed in the title of the original article that the use of the term “US Immigration” may have been somewhat opaque as the visa application was likely filed with a US Consulate under the jurisdiction of the United States Embassy in the United Kingdom and not the United States Citizenship and Immigration Service (USCIS) in the USA. That said, the article describes the visa application of a child in the United Kingdom and the denial of the application. The child’s parents were attempting to surprise him with a trip to Disney World in the US State of Florida. To quote further directly from the article itself:

Micah [the proposed beneficiary of the US B-2 Visa sought] was born in Britain and has lived in Middlesex all his life with his mum Claudia Lewis.

He holds a South African passport because his grandparents Kathy and Edward, who have lived and worked in Britain since 1990, only got him a South African passport.

They are originally from South Africa.

A letter from Micah’s primary school was included in his visa application confirming he attended the school.

But the US Embassy’s rejection letter to Micah said: “Because you either did not demonstrate strong ties outside the United States or were not able to demonstrate that your intended activities in the US would be consistent with the visa status, you are ineligible.”

His grandmother Kathy, from Brixton, South London, said: “It was going to be a total surprise. He would have loved it.

This blogger highly recommends that those interested in this heartfelt story go to the Telegraph website and read further.

Section 214(b) of the United States Immigration and Nationality Act is a provision which creates a legal presumption in the eyes of adjudicating Consular Officers at every US Mission abroad (US Embassy, US Consulate, American Institute, Visa Units, etc.) that an applicant for a United States visa is actually an undisclosed intending immigrant. Overcoming this presumption often occurs when a Consular Officer feels that, as opposed to the factual citing from the denial noted above, the applicant has shown “strong ties” to their country of origin, or another country abroad, and, simultaneously, “weak ties” to the United States.

In another section of the aforementioned article the author noted that the couple had spent a considerable sum of money purchasing plane tickets in anticipation of the proposed holiday in the USA. As noted in previous postings on this blog, it is not generally prudent in visa application proceedings to assume a particular outcome as issuance of United States travel documents to foreign nationals is not considered a foregone conclusion nor a “formality”. The circumstances mentioned above are unfortunate as they were unexpected and costly (in both monetary and emotional terms). Those foreign nationals wishing to travel to the United States should not make irrevocable travel arrangements until such time as a US visa has been issued and remitted to the applicant.

That said, the one major factor that could materially alter the outcome of another visa application in a case such as this: a UK Passport. As noted in the section quoted above from the US Embassy the applicant did not show “strong ties” to the UK or another country abroad. If the child always lived in the UK, but never possessed a UK passport and, as noted in the above cited section; never lived in South Africa, but was attempting to use a South African passport to travel to the US, then could it be inferred that the child’s ties to either country were attenuated? Possibly, and without knowing further about details, that may very well have been the reason for denial. However, as all cases are adjudicated based upon the unique facts under the circumstances any analysis of the aforementioned denial is merely an exercise in speculation.

It is generally imprudent to continuously resubmit American visa applications when there has been no material change to the facts of one’s case. However, when circumstances do change materially, then a subsequent application may not be frivolous. In the eyes of the law in many jurisdictions a change in nationality, the acquisition of nationality, the registration of nationality, or the naturalization to a new nationality all come with a host of different legal rights, obligations, and privileges not least of these may be a passport. Perhaps, after acquiring a UK Passport on behalf of the child, if eligible for such a travel document, another visa application would be approved? Better yet, upon acquisition of a UK Passport, the child in the article may be eligible for the visa waiver program, although his previous US visa denial would need to be noted in the Electronic System for Travel Authorization (ESTA) registration system.

Hopefully those thinking of applying for a US Tourist Visa in the future will take note of the fact that one’s nationality is an important facet of any immigration petition or visa application.

For related information please see: US Visitor Visa.

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23rd November 2010

The administrator of this blog recently came across a press release from the United States Mission in India. The following is quoted directly from the press release as distributed by the American Immigration Lawyers Association (AILA):

New Delhi – In an effort to make the visa application process more convenient for all Indians, the U.S. Embassy in New Delhi and Consulates General in Mumbai, Chennai, Kolkata and Hyderabad now accept visa applications from across India at all visa facilities, regardless of the applicant’s home address or city of residence. This is part of Mission India’s ongoing effort to facilitate legitimate travel to the United States.

Following the opening of Consulate General Hyderabad in 2008, the U.S. Mission has looked for ways to best capture the dynamism of India’s growth across the nation. As a result, we also redesigned our consular districts. Therefore, effective immediately, our consular districts will be reorganized as follows: Embassy Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan; Consulate Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli; Consulate Hyderabad: Andhra Pradesh, Orissa; Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands; Consulate Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, West Bengal

U.S. Ambassador to India Timothy J. Roemer said, “With these changes, we believe our Consulates General and our Embassy in New Delhi will be even better positioned to support and serve Indian visa applicants, as well as American citizens and businesses throughout India.”

Actions such as those noted above can have a tremendous positive impact upon those Indian Nationals seeking United States Immigration benefits as the ability to process such travel documents at any Post in India generally results in a great deal more convenience compared to the policy of keeping Consular jurisdictions mutually exclusive.

Each year, many Indian Nationals seek visa benefits of the United States of America. While some may seek US family visa benefits in order to reunite with loved ones. Other applicants seek non-immigrant visas for short terms stays in the USA. Still others seek employment based visas to the US such as the L1 visa. Meanwhile, there are some who opt to seek United States Permanent Residence by investment through use of the EB-5 visa program.

Policies such as the aforementioned one adopted by the US Mission in India should be applauded as this shows a sincere effort on the part of the Mission in India to take measures which may be beneficial to those seeking visas to America.

For related information please see: EB-5 Visa India.

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9th October 2010

For some, Law School is a fascinating journey  of academic achievement. Meanwhile, for others it can be an ever spiraling path of continuous sophistry and frustration. That said, those thinking of attending American law school should do meticulous research, understand the legal profession, and assess the costs prior to submitting an application or entering a course of study of the law. This author recently came across an interesting piece posted on CriminalJusticeDegree.com. To quote directly from this posting:

Law school offers up some amazing educational opportunities for those hoping to pursue work in the legal field. However, it clips along at a grueling pace and involves intensive work loads – a situation not everyone will find appealing. Those considering law school as a career path need to understand every positive and negative facet of the 3 demanding year before committing to sending in that first application. Anyone still up for the challenge knowing some of the major setbacks and issues should certainly pursue it!

The study of law can be intense and costly for those in the United States (other countries, including “common law” jurisdictions, have different protocols for attaining licensure as a legal professional). With that in mind, the aforementioned web posting takes the opportunity to “accentuate the negative” of law school in an effort to to provide balanced insight into the process by which laypeople becoming attorneys in the United States. Hopefully, by reading the information contained on that webpage, and the pages it links to, individuals thinking about a legal career can make informed decisions prior to making irrevocable changes to their lifestyle and/or financial situation.

The study and practice of law can be noble endeavors, but the law can be a cruel mistress, metaphorically, as legal reasoning and the paradigms created by legal frameworks can be difficult for some to fully comprehend without rigorous training and study of the theories and policies which underlie the laws and procedures which many Americans take for granted.

Although depicted as rather glamorous by film and television. Many American attorneys feel that the legal profession is more about dedication to client needs rather than attainment of some form of celebrity. Therefore, those interested in the legal profession should really take note of the personal reasons for seeking qualification as initial assumptions about the legal profession can be quickly refuted upon admission to a Law School. Furthermore, the practical application of the law in the “real world” may be very different compared to the academic study of jurisprudence. Therefore, those seeking a legal education are wise to have some sort of career “road map”. A plan such as this does not need to be excessively rigid, but should provide a framework to guide the prospective lawyer as he or she progresses in his or her legal education.

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18th September 2010

This author is a frequent reader of the Economist magazine. The legal service industry was the main topic of an article printed in a recent issue. This article succinctly and truthfully got to the heart of a significant issue in the international legal community, that of Legal Process Outsourcing. The whole dynamic in the legal service community is changing as a result of the internet, world wide web, and the ramifications thereof. These ramifications are being felt in other industries as well, but they seem to be having the most interesting impact upon the legal service industry because the industry, or more precisely; profession if used in a more individualized sense, has not had to retool its customary payment structure or hierarchy for a relatively long period of time. To better understand the significance of this development one needs to read some passages from the online article itself:

Lawyers hate keeping track of their billable hours. Clients hate them even more; each month they receive bills showing that their legal representatives have worked improbably long hours at incredibly high rates. Billing by the hour often fails to align lawyers’ interests with their clients’. The chap in the wig or the white shoes has an incentive to spin things out for as long as possible. His client would rather win quickly and go home. Since there is clearly a demand for an alternative to the billable hour, you would expect someone to supply it. And indeed, this is starting to happen.

Many legal tasks, although not quite easy, are variations on a theme. The production of a certain document (such as a trademark registration) does not differ vastly from one instance to another… Automating the automatable stuff allows lawyers to spend more time talking to the client.

One of the most important aspects of an attorney’s (or lawyer’s) job is direct contact with clients, Courts, or government agencies. The more time that an attorney can devote to direct interactions which result in direct, immediate or long term, benefits to clients, the better. The more services that a lawyer can provide, the better. The more satisfied clients, the better. In short, if a strategy, service, system, or technology works, and it is legal and ethical; then an attorney or lawyer should take all reasonable measures to provide the best service required based upon the totality of the circumstances in a given case. As the technological advances in developed countries and developing countries continue creating new avenues for efficiency in the legal profession, the overall situation is having a collateral impact upon the very practice of law in many parts of the world:

More and more firms’ in-house lawyers, who typically hire and manage outside lawyers, have turned to alternatives to the billable hour since the beginning of the global recession in 2008. According to a survey by the Association of Corporate Counsel (ACC), which represents companies’ in-house lawyers, 44% of members asked their lawyers for alternative billing to cut costs in 2009, more than any other cost-reducing measure. Susan Hackett, the ACC’s general counsel, says that just a few years ago what she calls “value-based” billing was only 3% of her members’ legal spending. Now, she says, surveys show the average client laying out between 15% and 30% of their legal spending this way.

The idea of so-called “value based” billing is an interesting one as this trend becomes increasingly prevalent. Many companies, individuals, and corporations have begun making increasingly informed decisions regarding the retention of legal counsel as many areas of the legal profession are becoming increasingly specialized in tandem with the demands of prospective clients. This sometimes requires attorneys and/or lawyers to practice law in a very narrow context. This can be problematic if over-specialization occurs and the lawyer finds their expertise is decreasingly in demand. Fortunately, a naturally occurring economic phenomenon in combination with recent advances in technology will hopefully see to it that lawyers and attorneys maintain diverse and highly unique areas of expertise across a field of areas while being able to provide advice and counsel for an increasingly large and novel set of practice areas. The aforementioned naturally occurring economic phenomenon is: The Long Tail. For those unfamiliar with this as an economic concept, it may be best to provide a quote from Wikipedia on the subject:

The Long Tail or long tail refers to the statistical property that a larger share of population rests within the tail of a probability distribution than observed under a ‘normal’ or Gaussian distribution. The term has gained popularity in recent times as a retailing concept describing the niche strategy of selling a large number of unique items in relatively small quantities…

The Long Tail’s statistical property noted above can also apply in a service context and this author would dare say that the ramifications in terms of demand for increasingly novel services in increasingly novel fields is astounding as more consumers (or prospective clients) demand services which did not even exist in the very recent past. This property can be extremely beneficial to those in the legal profession as demand for legal services will be further reinforced by the differing aspects of the laws and statutes in various jurisdictions. These statutory and structural legal differences can be explored for further efficiency in an international trade and business context. As the long tail continues to further stratify consumer demand, client needs will continue to evolve, thereby leading to new avenues for further expansion for legal service providers. By sorting out the issue of legal fee payment in an efficient manner law firms in the future can reap the rewards of new opportunities in the interstate, supranational, regional, and international business communities. Then, lawyers and/or attorneys can focus on providing cutting edge legal service while the client can enjoy more reasonable fee structures which accurately reflect the costs of an attorney’s, time, advice, and expertise. A final note from the Economist article may put it most succinctly:

Both sides can then focus on the case at hand, rather than the bill.

This is important to note as most attorneys or other legal professionals prefer practicing law or providing services to discussing fees. Although all can understand that fees are required before services can be rendered, many legal professionals feel that fee negotiation with clients is not an effective use of time compared to time spent actually providing services to clients. Therefore, the increasingly innovative legal services that are being required as the long tail reshapes the business world will provide innumerable benefits to legal service firms world wide while providing clients’ with peace of mind in knowing that bills will not become unreasonable nor will the level of service suffer due to lack of specific expertise in a given area.

For related information please see: ecommerce law.

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3rd September 2010

Those who read this blog on a regular basis may have noticed that the administration routinely posts information about efforts by various law enforcement authorities to discourage human trafficking. Unfortunately, as the world becomes increasingly integrated due to globalization the instances of human trafficking seem to be rising. This apparent increase could be due to the fact that there are more media outlets covering this issue, but this author believes in giving credit where credit is due and many of those apprehended by American authorities were caught thanks to the diligent efforts of American and international law enforcement agencies and organizations.

To quote a recent story from the Associated Press that this author found distributed on the internet by Google:

HONOLULU — Six recruiters were accused Thursday of luring 400 laborers from Thailand to the United States and forcing them to work, according to a federal indictment that the FBI called the largest human-trafficking case ever charged in U.S. history.

The indictment alleges that the scheme was orchestrated by four employees of labor recruiting company Global Horizons Manpower Inc. and two Thailand-based recruiters. It said the recruiters lured the workers with false promises of lucrative jobs, then confiscated their passports, failed to honor their employment contracts and threatened to deport them.

Once the Thai laborers arrived in the United States starting in May 2004, they were put to work and have since been sent to sites in states including Hawaii, Washington, California, Colorado, Florida, Kentucky, Massachusetts, New York, Ohio, South Carolina, Tennessee, Texas and Utah, according to attorneys and advocates.

Many laborers were initially taken to farms in Hawaii and Washington, where work conditions were the worst, said Chancee Martorell, executive director for the Los Angeles-based Thai Community Development Center, which represents 263 Thai workers who were brought to the U.S. by Global Horizons.

A woman who answered the phone at Global Horizons’ Los Angeles office refused to take a message seeking comment Thursday.

The six defendants include Global Horizons President and CEO Mordechai Orian, 45; Director of International Relations Pranee Tubchumpol, 44; Hawaii regional supervisor Shane Germann, 41; and onsite field supervisor Sam Wongsesanit, 39. The Thailand recruiters were identified as Ratawan Chunharutai and Podjanee Sinchai.

They face maximum sentences ranging from five years to 70 years in prison, according to the Department of Justice.

The penalties imposed upon those who engage in human trafficking activities can be severe. This is likely due to the fact that this activity often leads to many negative results as noted in the story above. Many of those who are smuggled from one country to another are forced to work under inhumane conditions that are considered to be illegal in many jurisdictions.

This author is pleased to see public resources being expended upon truly worthy law enforcement programs such as this. Thwarting the activities of human traffickers should definitely be a top priority for international law enforcement agents. Hopefully, arrests such as those noted above will discourage and deter individuals in the future as such activity has an extremely detrimental impact upon society as a whole.

It should also be noted that human trafficking is considered by US Immigration authorities to be a legal grounds of inadmissibility. Therefore a finding by a Consular Officer that an individual previously engaged in human trafficking may lead to visa denial in a pending immigration petition or application. Furthermore, this ground of inadmissibility is unlikely to be remedied through use of an I-601 waiver.

For related information please see: US Visa Thailand.

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