Integrity Legal

Archive for the ‘US LLC’ Category

28th June 2011

It recently came to this blogger’s attention that a United States Senator introduced legislation designed to engage the Association of Southeast Asian Nations (ASEAN) in a Free Trade Agreement (FTA). In order to provide further information regarding these developments it may be best to quote directly from the official website of The Nation, NationMultimedia.com:

United States Senator Richard G. Lugar, the Republican Leader of the Senate Foreign Relations Committee, today introduced legislation encouraging United States officials to initiate Free Trade Agreement (FTA) negotiations between the U.S. and the Association of Southeast Asian Nations (ASEAN), which presently accounts for the fourth largest export market of the United States. ”I am continuing my efforts to encourage the Obama Administration to announce a comprehensive and long-term strategy toward engaging ASEAN in FTA discussions,” Lugar said…

This blogger strongly encourages readers to click upon the relevant hyperlinks noted above to learn more on this story.

It is becoming increasingly apparent that the ASEAN community is likely to become more economically important in an international context as time passes. Clearly, Senator Richard Lugar’s proposed legislation will have a significant impact upon the trade relations between the United States of America and the countries which make up ASEAN (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam). Assuming appropriate circumstances, it could be surmised that the United States and the ASEAN community could share a strong trade relationship notwithstanding the growing trade between the United States and countries of the so-called BRICS grouping which includes nations such as India and China. Hopefully the business relationship between the US and ASEAN continues to thrive as these issues are discussed among relevant legislators.

In other matters pertaining to the United States Senate, it recently came to this blogger’s attention that this legislative body was also the forum in which a new UAFA-inclusive piece of immigration legislation was introduced. To provide further insight into these events it may be prudent to quote directly from the website Care2.com:

U.S. Senators introduced Wednesday the Comprehensive Immigration Reform Act of 2011 which includes the Uniting American Families Act (UAFA), legislation allowing U.S. nationals to sponsor their foreign-born same-sex partners for citizenship. The bill, introduced by Senator Robert Menendez (D-NJ) alongside Senators Harry Reid (D-NV), Patrick Leahy (D-VT), John Kerry (D-MA), Dick Durbin (D-IL) and Chuck Schumer (D-NY), has a UAFA-inclusive counterpart measure in the House as introduced by Representative Mike Honda (D-CA). LGBT groups including the Immigration Equality Action Fund praised the reintroduction of the legislation…

The administration of this web log encourages readers to click upon the hyperlinks note above to read more.

As the struggle for LGBT equality continues, legislation such as that noted above could have a significant positive impact upon the LGBT community. Importantly, the inclusion of language similar to the Uniting American Families Act (UAFA), a stand alone piece of legislation originally introduced by Representative Jerrold Nadler in the House of Representatives, would permit same sex bi-national couples to petition for American family immigration benefits similar to those routinely granted to different sex bi-national couples. Currently, the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude such benefits from same sex couples even if a couple has entered into a same sex marriage in one of the sovereign American States that legalize and/or solemnize such unions. Hopefully this proposed legislation can gain traction and thereby end the current discrimination imposed upon same sex couples.

For related information please see: US Company Registration or Legal.

more Comments: 04

4th June 2011

I have sworn on the altar of God eternal hostility against every form of tyranny over the mind of man.

–Thomas Jefferson (3rd President of the United States of America, First Secretary of State [Washington Administration])

Gay rights are human rights.

– Secretary of State Hillary Rodham Clinton (Former First Lady of the United States)

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

– 9th Amendment of the United States Constitution, quoted from Wikipedia

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

– 10 Amendment of the United States Constitution, quoted from Wikipedia

It recently came to this blogger’s attention that the Federal Reserve Bank of Richmond located in the sovereign Commonwealth of Virginia has taken political criticism for flying a rainbow flag (traditionally viewed as a flag denoting support for the LGBT community and, for some, their struggle for equal protection under United States law and/or equal recognition of same sex marriage solemnized and/or legalized in one of the sovereign American States, the District of Columbia, or the Federal territories, if applicable). To quote directly from an article by Olympia Meola posted on the official website of the Richmond Times-Dispatch, TimesDispatch.com:

Del. Robert G. Marshall, R-Prince William, is asking the Richmond Federal Reserve Bank to remove the rainbow flag flying below the American flag outside of the building, calling its presence “a serious deficiency of judgment by your organization, one not limited to social issues.” In a letter to Richmond Fed President Jeffrey M. Lacker, Marshall says the homosexual behavior “celebrated” by the bank “undermines the American economy…”

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks noted above to read this story in detail in order to gain further insight into this developing situation.

This blogger must pause this analysis for a moment of personal observation. It is intriguing that Delegate Marshall would seem to be trying to scapegoat some of the blame for recent economic events upon the LGBT, Lesbian, Gay, Bisexual, and Transgender (transsexual, or “third sex“), community. This blogger must retort: how could the LGBT community “undermine” America’s economy? Explain this? Especially since a great deal of economic activity that produces revenue in America comes from married couples trying to make a living, build a home, and start a family. Is it in dispute that marriage and family generate economic benefits for America? If it is not, then the only way the LGBT community could be at fault for some hypothetical economic downturn would seem to arise from the fact that they have not started families (and therefore not generated the concomitant economic activity derived therefrom) due to the fact that they cannot gain the same legal recognition of their relationships in the same way that those in different-sex relationships are able to. This is especially true in the context of same sex bi-national couples as some of these relationships are separated by thousands of miles and jurisdictional boundaries due to the fact that federal enforcement of the so-called “Defense of Marriage Act” (DOMA) does not allow a same sex bi-national couple to petition for the same US visa benefits (such as the CR1 visa or the IR1 Visa, not to mention the K1 visa which is a US fiance visa) in the same manner as a different sex couple. There are currently American federal legislators such as Representative Mike Honda and Representative Jerrold Nadler who have introduced legislation, such as the Reuniting Families Act, the Uniting American Families Act, and the Respect for Marriage Act; which would, to one degree or another, at least end the current discrimination that the bi-national LGBT community faces when trying to reunite with family in the United States of America. Apparently this Federal Reserve Bank was flying this flag pursuant to a request from another organization which appears dedicated to the cause of LGBT equality:

The flag is being flown at the request of PRISM, a Richmond Fed group representing gay, lesbian, bisexual and transgender employees and allies.

This PRISM organization should be commended for their efforts on behalf of the LGBT community, but this blogger must say that he would like to see legislation passed which provides tangible benefits to the LGBT community rather than a gesture from a private corporation which, at least ostensibly, has no role in deciding American policy toward legal recognition of LGBT relationships. Others echoed some of these sentiments, but for what are, in this blogger’s personal opinion, the wrong reasons:

Its presence also prompted mention from Victoria Cobb, president of The Family Foundation in an email release on Wednesday. Although the Federal Reserve is a private entity, it is disappointing to see it participate in this celebration,” she said.

This blogger is always a bit skeptical when a group uses the term “family” when describing themselves as it is usually an indicator that such an organization has its own idea about what the definition of “family” actually is. Concurrently, such organizations are sometimes known to attempt to foist their own paradigm or definition of family upon others who may not necessarily share the same view. Therefore, readers are asked to always conduct their own research on all aspects of such issues in order to form their own well informed opinions.

This blogger must confess that this recent display of support for LGBT equality by the Fed seems a bit disingenuous considering the timing and circumstances. It has recently been reported on some mainstream and alternative media outlets that there are currently worries growing about the state of the American economy. Meanwhile it recently came to this blogger’s attention that the government of China is reported to have diminished their position in United States Treasuries. To quote directly from an article written by Terence P. Jeffrey and posted to the website CNSNews.com:

(CNSNews.com) – China has dropped 97 percent of its holdings in U.S. Treasury bills, decreasing its ownership of the short-term U.S. government securities from a peak of $210.4 billion in May 2009 to $5.69 billion in March 2011, the most recent month reported by the U.S. Treasury. Treasury bills are securities that mature in one year or less that are sold by the U.S. Treasury Department to fund the nation’s debt. Mainland Chinese holdings of U.S. Treasury bills are reported in column 9 of the Treasury report linked here

Readers are strongly encouraged to click upon the relevant hyperlinks noted above to read this article in full and learn more. This situation is only brought up in the context of this posting to elucidate the fact that the Fed is currently in something of a “pickle”. This news comes upon the heels of recent announcements (noted in a previous posting on this blog) that the USA and China are set to be engaging in cooperative efforts in the context of relations with the Association of Southeast Asian Nations (ASEAN). Clearly, current American relations with China and countries in Southeast Asia are multi-facted and complex so those interested in such topics are encouraged to conduct thorough research before forming opinions on issues associated with American, Chinese, and ASEAN economic policies and relations.

It was recently reported on the website Law.com that the Federal Reserve has come under intense scrutiny from legislators such as Representative Ron Paul for current policies supposedly being maintained by the Fed. To quote directly from an insightful article written by Shannon Green and posted on the website Law.com:

The Congressman criticized the Fed for its reluctance to disclose to the public when banks are unhealthy. Paul said the Fed’s practices of protecting banks’ privacy appears to be at odds with the U.S. Securities and Exchange Commission, which is pushing companies to reveal more information.

Readers are strongly encouraged to click upon the relevant hyperlinks noted above to read this article in full to gain more context.

Whether one agrees or disagrees with positions held by the various members of House of Representatives is not really relevant to the issue of the Fed’s decision to hoist this particular flag at this particular time. Although it is certainly a commendable gesture, this blogger’s response, with all due respect, must be: why so late, and why now? If the Fed is raising the Rainbow flag because they genuinely support LGBT Equality, then great; but if this institution is simply raising this flag because of political expediency or to score some sort of “political points”, then one must ask: why? Hopefully the LGBT community will see their equal rights fully vested soon and this valid grievance will be redressed. In the meantime, this blogger hopes that the American economy will rebound from any relative downturn to find itself more vibrant and dynamic than ever, but some developments take time. For those personally impacted by the current state of affairs: it is hoped that change will come sooner rather than later.

Readers should note that in the context of same sex marriage this blogger feels that fundamentally the issue of LGBT equality is an individual rights issue as the right to enter into a consensual relationship with whomever one wishes is an inalienable natural right reserved to the People notwithstanding the Constitution, but nevertheless enshrined within the provisions of the 9th and 10th Amendments noted above. The implied right of “free association” has also long been held to provide Constitutional protection for Americans wishing to form intimate associations with others. Concurrently, this blogger feels that where sovereign States have heeded the call of their citizenry to provide government licensure of same sex marriages or marital unions, then that licensure acts as an imprimatur of sovereign recognition which, in this blogger’s opinion, cannot be negated by the federal government and must be accorded Full Faith and Credit by sister States within the Union. Those unfamiliar with the Full Faith and Credit Clause should note that Congress can make rules regarding the effect of State law upon other States, but, in this blogger’s opinion, such law cannot be made to render the States’ laws ineffective, which is the current result of the federal government’s application of some, or all, depending upon circumstance; of the provisions of the so-called “Defense of Marriage Act“. This blogger must point out that although same sex couples ought to be able to get Full Faith and Credit for those marriages solemnized and/or legalized in one of the sovereign States of the United States of America, they may not necessarily see States which do not permit same sex marriage in an intrastate context engaging in the legal procedure of divorcing same sex couples as this blogger believes that one must utilize a “horizontal vs. vertical” analysis of the Full Faith and Credit Clause in the context of same sex marriage since there is both an intrastate and interstate component to such an analysis. Such an analysis could, at times, result in a situation where a State Court permits recognition of the fact that a same sex marriage exists in another State jurisdiction, but the Full Faith and Credit Clause’s provisions may not necessarily be interpreted to mean that States should be compelled to grant same sex divorces if the public policy of the State in question does not permit State sanctioned legalization or solemnization of such unions in the first place.

On a side note, this blogger just thought of an interesting hypothetical: could a federal Court with concurrent federal jurisdiction over State territory grant divorces for same sex couples who were married in another State jurisdiction (which allows same sex marriage) if the underlying State’s public policy runs counter to the notion of granting recognition for such unions? It would currently seem that pursuant to the Erie Doctrine the US Courts under such circumstances may be prohibited from undertaking certain functions pertaining to same sex marriages if the underlying State’s law does not recognize such unions. That stated, as of the time of this writing any such analysis remains mere speculation as a broadly binding legal opinion on these issue has yet to be handed down.

Readers interested in learning more about the struggle for LGBT Equality are encouraged to check out UnitingAmericanFamilies.Net, Lez Get Real, and/or the Immigration Equality Action Fund Blog.

For further related information please see: Rainbow Flag or US Company Registration.

more Comments: 04

30th April 2011

Over the years this blogger has seen large numbers of tourists flock to the Kingdom of Thailand as well as the neighboring nations of Laos, the Union of Myanmar (referred to by some as Burma), Malaysia, and the Kingdom of Cambodia. At the same time, this blogger has also witnessed the metamorphosis of some of these tourists into entrepreneurs by remaining in some of these countries (as well as other jurisdictions in Greater Asia such as Indonesia, Vietnam, China, Taiwan, Singapore, Hong Kong, South Korea, Nepal, Macau, India, and Sri Lanka; to name only a few) in a business context for many years and; for some, even decades or a whole lifetime. Whatever the circumstances of those Americans Resident Abroad remaining in the region of economies increasingly being labeled by both the mainstream and alternative media outlets by their affiliation with the Association of Southeast Asian Nations (ASEAN) one thing is clear: the economies of Asia are set to expand at an incredible rate by relative historical comparison. Therefore, it stands to reason that there are likely to be more Americans doing business in these jurisdictions. This state of affairs is occurring at a time when the potential of the internet and the World Wide Web first noted little more than a decade ago is beginning to become fully realized by businesses large and small. As e-commerce becomes an evermore ubiquitous facet of virtually every enterprise’s business strategy it is becoming more clear that many business functions are increasingly being performed by businesses of all sizes online and, in some cases, these businesses are even being maintained from an entrepreneur’s home.

This phenomenon is interesting for this blogger to note from the perspective of an American who is resident in Bangkok, Thailand as the Thai shop-house business model of maintaining a residence and business premises within close proximity has lead to a thriving small business community in the vast metropolis that is Greater Bangkok. This thriving business community, coupled with many of the other positive factors associated with doing business in Thailand, has lead to a vibrant economy that remains conducive to further foreign investment by entrepreneurs and businesses seeking to derive economic benefits both in Thailand and throughout the Asian markets. Of possible importance to Americans resident abroad or those thinking of residing abroad are the issues noted above as well as those associated with ownership of Thai property or Thai real estate especially in the form of a Thai Condominium.

In Thailand, as well as throughout many jurisdictions in Asia, there are restrictions placed upon foreign ownership of real estate. Although there are provisions allowing for foreign ownership of Thai property in many cases it is difficult, if not impossible, for a foreign national to secure freehold title (referred to as Chanote title in Thailand) in Thai real property such as land. However, it may be possible for a foreign national in Thailand, such as an American Citizen, to conveniently secure freehold title to a Thai Condo if the provisions of various laws and regulations on this issue, such as the Thai Condominium Act, are adhered to. Meanwhile, a foreign national who owns a Condo in Thailand may be qualified to receive a Foreign House Registration Booklet (referred to as a Tabien Baan for Thais or a Foreign Tabien Baan, or Yellow Tabien Baan for foreign nationals). Taking the aforementioned factors into consideration, in conjunction with the fact that for American Citizens and American Companies in Thailand there may be benefits pursuant to the provisions of various legal instruments such as the US-Thai Treaty of Amity which may provide the privilege of virtually 100% ownership of a Company in Thailand with “National Treatment” for certain business undertakings, one is left with little doubt that there are tangible legal benefits which could be accrued to the favor of Americans resident in Thailand conducting business in the ASEAN region as well as the regions of Greater Asia. Therefore,  investing in what this blogger would refer to as a “Thai Pad” (which non-literally alludes to the IPad-like gadgets allowing for increasingly easy real time access to the internet as well as the exponentially beneficial combination of privileges accruing to owners of Thai property registered on a Yellow Tabien Baan in conjunction with the advantages which may be had for Americans resident abroad utilizing a Thai company certified under the US-Thai Amity Treaty) could prove to have been prudent by future analysts in both tangible as well as intangible terms.

For related information please see: US Company Registration.

more Comments: 04

25th January 2011

เมื่อเร็วๆนี้ มีเรื่องราวที่น่าสนใจว่า คณะกรรมการกำกับหลักทรัพย์ในสหรัฐอเมริการายงานถึงการสอบสวนการฝ่าฝืนพระราชบัญญัติการปฏิบัติการทุจริตต่อต่างชาติ อ้างโดยตรงจากบล็อกที่เขียนโดย แอชบรีย์ โจนส์ในเว็บไซต์ของนิตยสารวอลล์ สตรีท wsj.com

คณะกรรมการกำกับหลักทรัพย์กำลังสอบสวนธนาคารและภาคเอกชนที่กำลังฝ่าฝืนกฎหมายเกี่ยวกับสินบนในการจัดการกับกองทุนเพื่อความมั่งคั่งตามที่ประชาชนคุ้นเคยกันเป็นอย่างดี คลิกที่นี่เพื่อดูบทความที่ไดออนเน่ เซียร์ซี่และแลนเดลล์เขียนในWSJ และคลิกที่นี่เพื่อตขิดตามเรื่องราวของ NYT และคลิกที่นี่เพื่อติดตามเรื่องราวของบลูมเบิร์ก

ตามที่ WSJ และคณะกรรมการกำกับหลักทรัพย์SEC ส่งจดหมายถามข้อสงสัยต่อธนาคารเช่น ซิตี้กรุ๊ปและภาคเอกชน  เช่นแบล็กสโตนกรุ๊ป แม้ว่าในจดหมายไม่ได้ระบุถึงข้อกล่าวหาในเรื่องสินบน พวกเขายังคงเรียกร้องที่จะให้บริษัทเก็บรักษาเอกสารและถามถึงการจัดการบริษัทกับกองทุนเพื่อความมั่งคั่ง

ผู้ที่ไม่คุ้นเคยกับ FCPA ควรจะทราบไว้ว่า มีบทบัญญัติตามกฎหมายเบื้องต้นที่จะจัดการกับสินบนและการคอร์รัปชั่นของเจ้าหน้าที่ต่างประเทศ ชาวอเมริกันบางคนนั้นอยู่ภายใต้ความผิดพลาดของบริษัทและบุคคลที่ดำเนินการนอกเขตแดนสหรัฐอเมริกาและมีสิทธิที่เกี่ยวข้องกับสินบน ในความเป็นจริงแล้ว มีกรณีศึกษาที่ สหรัฐอเมริกาพยายามที่จะร่างกฎหมายเพื่อทำลายและลงโทษการกระทำเช่นว่านั้น เมื่อกฎหมายผ่านการพิจารณานั้นปรากฎถึงวัตถุประสงค์อย่างชัดแจ้งที่จะลงโทษการกระทำเช่นนี้ในต่างประเทศ (หรือบริษัทที่ทำธุรกิจในต่างประเทศ) อย่างไรก็ตามจากสถานการณ์ที่กล่าวถึงดูเหมือนว่า จะถูกแนะนำภายใต้การสอบสวน(อย่างน้อยที่สุดคือ บางส่วน)ภายในเขตแดนของสหรัฐอเมริกา อ้างจากข้อความในบล็อกที่เขียนใน wsj.com

จดหมายที่จะผูกพันการสอบสวนของอุตสาหกรรมการธนาคารตามพระราชบัญญัติการปฏิบัติคอร์รัปชั่นของชาวต่างชาติ ทนายความที่เชี่ยวชาญกับการสอบสวนครั้งก่อนๆของอุตสาหกรรม ลูกจ้างชาวต่างชาติผู้ที่ทำงานกับกองทุนเพื่อความมั่งคั่งอาจจะรวมถึงเจ้าหน้าที่ของรัฐและรวมถึง FCPA ผู้เชี่ยวชาญทางกฎหมายกล่าว

แต่มันเป็นที่ปรากฏอย่างชัดเจนว่า ไม่มีผู้ที่จะถูกกล่าวหาอย่างเป็นทางการในข้อหาใดๆต่อ FCPA นอกจากนี้มันควรจะเป็นที่ปรากฏอย่างชัดแจ้งว่า จนกระทั่งเวลานั้น คู่กรณีมักให้การ หรือถูกกล่าวหาว่าการละเมิดของ FCPAในสายตาของกฎหมายพวกเขาเป็นผู้บริสุทธิ์

พระราชบัญญัติการคอรรัปชั่นของชาวต่างชาติเป็นงานชิ้นสำคัญของการร่างกฎหมายของชาวอเมริกันและบริษัทอเมริกัน ตามบทบัญญัติของFCPA ช่าวอเมริกันแต่ละคนและนิติบุคคลอื่นนั้นไม่อยู่ในการเกี่ยวข้องกับการกระทำเกี่ยวกับสินบนหรือสิทธิอื่นๆหรือ การคอร์รัปชั่น คำร้องของFCPA ต้องได้รับการพิจารณาตามข้อเท็จจริงในแต่ละคดี ดังนั้นหลักการปฏิบัติทางธุรกิจต่างประเทศอาจจะเห็นได้จากความเห็นของผู้เชี่ยวชาญที่มีประสบการณ์ในการจัดการเกี่ยวกับคดีเกี่ยวกับธุรกิจและกฎหมายในเขตอำนาจศาลนอกสหรัฐอเมริกาสามารถให้สิทธิประโยชน์โดยการให้มุมมองที่มีลักษณะเฉพาะและแง่มุมในแบบพิธีการและขั้นตอนขององค์กรรัฐบาลและเจ้าหน้าที่ต่างแดนในขณะที่ยังคงรักษาความเข้าใจของทนายความอเมริกันของ FCPA

ตัวอย่างเช่น ราชอาณาจักรไทยมีระบบกฎหมายที่แตกต่างจากสหรัฐอเมริกา ในขณะเดียวกัน แวดวงธุรกิจในประเทศไทยนั้นก็แตกต่างไปจากสหรัฐอเมริกา ข้อเท็จจริงคือ พลเมืองสหรัฐอเมริกาและบริษัทอเมริกัน มีความพยายามที่จะดำเนินธุรกิจซึ่งทีแนวความคิดของการจัดการธุรกิจอย่างมีประสิทธิภาพในขณะเดียวกันก็ยังคงเป็นไปตามกฎหมายอย่างเช่น พระราชบัญญัติการปฏิบัติคอร์รัปชั่นของชาวต่างชาติ เช่นเดียวกันกับระบบกฎหมาย วัฒนธรรม ประเพณี และการปฏิบัติทางการค้าของหลายๆชาติในเอเชียสามารถที่จะพิสูจน์ข้อสงสัยหลายๆอย่างของผู้ที่จะดำเนินธุรกิจในบริบทของการเป็นแบบ “ตะวันตก” มากกว่า ข้อเท็จจริงคือ FCPA เป็นการร่างกฎหมายที่เข้มข้นกับบริษัทอเมริกันและบุคคลที่จะต้องปฏิบัติตาม ในบางกรณี การที่จะให้บริการทางกฎหมายในการช่วยเหลือให้ความเข้าใจFCPA และวิธีการที่จะประนีประนอมสามารถพิสูจน์ถึงสิทธิประโยชน์ทั้งบุคคลตามธรรมชาติและนิติบุคคล

ผู้ที่หวังว่า ข้อซักถามก่อนหน้านี้สามารถที่จะพิสูจน์สิ่งที่ไร้ประโยชน์ เนื่องจากข้อเท็จจริงต่างๆไม่ได้มีการละเมิดเกิดขึ้น สิ่งที่พึงระลึกถึงคือ ถ้ามีการละเมิด FCPA เกิดขึ้นต่อจากนั้นดูเหมือนว่า มีแนวโน้มที่จะมีองค์กรเช่นคณะกรรมการกำกับตลาดหลักทรัพย์สามารถที่จะเปิดเผยข้อเท็จจริง

ข้อมูลที่เกี่ยวข้องกับ บริษัทไทย หรือ การจัดตั้งบริษัทอเมริกัน

To read this information in English please see: Foreign Corrupt Practices Act.

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14th January 2011

It recently came to the administration’s attention that the Securities and Exchange Commission (SEC) in the United States is reportedly investigating possible violations of the Foreign Corrupt Practices Act (FCPA). To quote directly from a recent blog entry written by Ashby Jones on the Wall Street Journal‘s website wsj.com:

The Securities and Exchange Commission is investigating whether banks and private-equity firms violated bribery laws in their dealings with sovereign-wealth funds, according to people familiar with the matter. Click here for Dionne Searcey and Randall Smith’s article in today’s WSJ; click here for the NYT story; here for the Bloomberg story.

According to the WSJ, the SEC has sent letters of inquiry to banks such as Citigroup as well as private-equity firms including Blackstone Group, the people said. Though the letters didn’t contain specific allegations of bribery, they requested that firms retain documents and asked about the firms’ dealings with sovereign-wealth funds, the people said.

Those who are unfamiliar with the FCPA should note that the provisions of the law deal primarily with matters pertaining to bribery and corruption of foreign officials. Some Americans are under the mistaken impression that companies and individuals operating outside of the United States’ physical boundaries are entitled to engage in activity which amounts to bribery. In fact, this is simply not the case as the United States has a great deal of legislation in place as an attempt to discourage and punish such activity. When the legislation was passed it would appear that the intention was to criminalize activity by those physically abroad (or companies doing business abroad). However, the circumstances in the above cited matters would seem to suggest that those under investigation were operating (at least partially) within the geographical boundaries of the United States. To quote the aforementioned blog posting on wsj.com further:

The letters appear to be tied to a broad Foreign Corrupt Practices Act investigation of the banking industry, said attorneys who are familiar with past FCPA investigations of other industries. Foreign employees who work on sovereign-wealth funds would be considered government officials and covered by the FCPA, legal experts said.

As of yet, it would appear as though no one noted above has been formally charged in any matter pertaining to the FCPA. Furthermore, it should be noted that until such time as a party has made a pleading or been convicted of a violation of the FCPA they are, in the eyes of the law, innocent.

The Foreign Corrupt Practices Act is an important piece of legislation for Americans and American companies. Pursuant to the provisions of the FCPA, American individuals and corporate entities are precluded from engaging in acts of bribery or, as the title of the act itself suggests, corrupt practices. That said, application of the FCPA must take into consideration the factual circumstances in a given case. Therefore, those conducting business abroad may find that the opinion of American legal experts experienced at handling legal and business matters in jurisdictions outside of the USA can be beneficial by providing unique insight and perspective into the customs and procedures of governmental organizations and officers abroad while maintaining an American attorney’s understanding of the FCPA.

For example, the Kingdom of Thailand has a very different legal system compared to that of the United States. Meanwhile, the business community in Thailand is also dissimilar from that of the USA. An upshot of these facts is that American Citizens and US Companies attempting to conduct business in Thailand may have little idea of how to effectively operate while still complying with laws such as the Foreign Corrupt Practices Act.  The same can be said for many of the nations of Asia as the legal systems, cultural traditions, customs, and trade practices of some countries can prove bewildering to those who are accustomed to conducting business in a more “Western” context. The fact is: the FCPA is a serious piece of legislation with which American companies and individuals must maintain compliance. In some cases, retaining the services of legal counsel to assist in understanding the FCPA and methods of maintaining compliance can prove highly beneficial for both natural and corporate persons.

One can hope that the aforementioned inquiries prove fruitless due to the fact that no violations occurred. Bearing that in mind, if violations of the FCPA occurred, then it would seem highly likely that an organization such as the SEC would be able to uncover them.

For related information please see: Amity Treaty Company or American LLC.

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26th August 2010

Fee Increases for the L1 Visa

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The United States L-1 visa can be a very useful travel document for those who wish to work in the United States for a multi-national corporation. In recent months, many of the fees associated with visa processing have increased. For example, the Consular Processing fees for the K1 visa and the K3 Visa have risen as demands upon resources required an adjustment of costs payable by customers. Other visa categories were also subjected to fee increases.

The L1 visa is the latest subject of a fee increase as noted by the American Immigration Lawyers Association (AILA) in this quotation from a press release distributed through their network:

WASHINGTON—On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or

• To obtain authorization for an alien having such status to change employers. USCIS is in the process of revising the Petition for a Nonimmigrant Worker (Form I-129), and instructions to comply with Public Law 111-230.

To facilitate implementation of Public Law 111-230, USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain. The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

A Request For Evidence (RFE) is analogous to the 221g refusal in that both are requests for further documentation. These types of requests essentially “freeze” the application or petition until the Petitioner, Beneficiary, or their attorney provides the requested documentation or evidence. That said, waiting too long to respond can cause problems as the case could be deemed to have been abandoned. Generally, such forms are issued when the adjudicating officer feels that further evidence is necessary in order to decide the case.

Those interested in learning more about RFEs and visa refusals should see: US Visa Denial

To learn more about L1 visas in the context of American LLC formation please see: US Company Registration.

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30th July 2010

The EB-5 Visa: What Is It?

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In recent months, this author has received a number of inquires regarding the American EB-5 visa. Many seem interested in this visa category because it accords the bearer with substantial benefits in the United States and also puts EB-5 visa holders on track to obtain United States Citizenship. In order to provide the reading public with relevant information, this post will provide a brief overview of the EB-5 visa and some information regarding the application process.

A well rounded layman’s definition of the EB-5 visa can be found at wikipedia.com. To briefly quote wikipedia’s entry regarding the EB-5 visa directly:

“The EB-5 visa for Immigrant Investors is a United States visa created by the Immigration Act of 1990. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States.[1] To obtain the visa, individuals must invest at least $1 million, creating at least 10 jobs.[2]

By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000. The Immigrant Investor Pilot Program was created by Section 610 of Public Law 102-395 on October 6, 1992. This was in accordance to a Congressional mandate aimed at stimulating economic activity and job growth, while allowing eligible aliens the opportunity to become lawful permanent residents. This “Pilot Program” required only $500,000 of investment in exchange for permanent resident status. The investment could only be received by an economic unit defined as a Regional Center.”

Although the above definition provides superficial insight into the mechanics of the EB-5 visa, the official website of the United States Citizenship and Immigration Service (USCIS) may provide deeper elucidation into the eligibility requirements for an EB-5 visa:

Eligibility Criteria

New Business Enterprise

To qualify you must:

  1. Invest or be in the process of investing at least $1,000,000.  If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
  2. Benefit the U.S. economy by providing goods or services to U.S. markets.
  3. Create full-time employment for at least 10 U.S. workers.  This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
  4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.

Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”  For further detail click on the Laws section of this website and access section 203(b)(5)(B) of the Immigration Nationality Act (INA).

Troubled Business

To qualify you must:

  1. Invest in a business that has existed for at least two years.
  2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
  3. The loss for the 12 to 24 month period must be at least equal to 20 percent of the business’s net worth before the loss.
  4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
  5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy.  For example as a corporate officer or board member.
  6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Regional Center Pilot Program

To qualify you must:

  1. Invest at least $1,000,000 or $500,000 in a regional center affiliated new commercial enterpriose or a troubled business located within the area of the USCIS designated Regional Center.  Regional Centers are defined and discussed further below.
  2. Create at least 10 new full-time jobs either directly through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

  • How the regional center plans to focus on a geographical region within the U.S., and msut explain how the regional center will achieve the required economic growth within this regional area
  • That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
  • How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
  • The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

As can be seen from the above citation, the eligibility criteria for an EB-5 visa are rigorous, but not insurmountable for an applicant who has the assistance of a competent and experienced US Immigration attorney.  Obtainment of EB-5 visas can require a great deal of time and expense in an effort to ensure that the eligibility and application requirements are met at the time of application submission. Those interested in obtaining such a travel document are well advised to contact an American Immigration lawyer.

For further details about US Immigration in general please see: US Visa.


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3rd July 2010

In an effort to provide information upon which individuals can make informed decisions the following is a brief overview of the concept of limited liability and its practical applications. The following is a direct quote from Wikipedia:

Limited liability is a concept whereby a person’s financial liability is limited to a fixed sum, most commonly the value of a person’s investment in a company or partnership with limited liability. In other words, if a company with limited liability is sued, then the plaintiffs are suing the company, not its owners or investors. A shareholder in a limited company is not personally liable for any of the debts of the company, other than for the value of his investment in that company. This usually takes the form of that person’s dividends in the company being zero, since the company has no profits to allocate. The same is true for the members of a limited liability partnership and the limited partners in a limited partnership.[1] By contrast, sole proprietors and partners in general partnerships are each liable for all the debts of the business (unlimited liability).

Although a shareholder’s liability for the company’s actions is limited, the shareholder may still be liable for its own acts. For example, the directors of small companies (who are frequently also shareholders) are often required to give personal guarantees of the company’s debts to those lending to the company. They will then be liable for those debts in the event that the company cannot pay, although the other shareholders will not be so liable. This is known as co-signing.

The legal structures used by individuals in an effort to enjoy limited liability have changed over the course of recent years. In the relatively distant past, many American jurisdictions required a great deal of formality when granting limited liability. In recent years, legislative measures have been taken in an effort to make conferment of limited liability more available to larger numbers of people and enterprises.

The creation of the Limited Liability Company (also known by its acronym LLC) was a watershed moment in American jurisprudence. To quote Wikipedia again:

A limited liability company (LLC), also known as a company with limited liability (WLL), is a flexible form of business enterprise that blends elements of partnership and corporate structures. It is a legal form of business company, in the law of the vast majority of United States jurisdictions, that provides limited liability to its owners. Often incorrectly called a “limited liability corporation” (instead of company), it is a hybrid business entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC, although a business entity, is a type of unincorporated association and is not a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. It is often more flexible than a corporation and it is well-suited for companies with a single owner.

It is important to understand that limited liability does not imply owners are always fully protected from personal liabilities. Courts can and do pierce the corporate veil of LLCs when some type of fraud or misrepresentation is involved, or under certain situations where the owner uses the company as an “alter ego.”

As can be inferred from the above quotation, Limited Liability Companies are an optimal tool for business in the global information age as they provide flexibility as well as mobility for an individual or small group of individuals seeking to provide goods and services to niche markets in the international arena. That said, there are certain legal issues that must be addressed when incorporating any venture and, as straightforward as a US LLC may first appear, there are formalities that must be adhered to when one wishes to organize an American LLC.

For related information please see: US Company Registration.

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21st June 2010

This blog frequently discusses the formation and incorporation of Thai companies, but we rarely discuss corporate formations in the United States of America. Relatively few foreign nationals are aware of the many benefits that come from setting up a corporate structure in the United States.

One of the most advantageous aspects of setting up a company in the United States is banking. American banks are some of the most efficient and customer-service oriented financial institutions in the world. For this reason, many Americans and non-US Citizens routinely use US banks in order to enjoy all of the amenities of truly “global” service. Simply because an individual is not physically in the United States should not mean that he or she should not be accorded comparable banking advantages when competing in the global marketplace. Furthermore, lack of American citizenship should not be a bar upon an international businessperson’s ability to conduct their affairs, banking or otherwise, efficiently and on a global scale.

Limited Liability is another major benefit to those wishing to conduct business in the international, supranational, and multinational spheres. In many jurisdictions of the United States of America the Limited Liability Company has been used as a means of providing limited liability to small and medium enterprises (SMEs). A US LLC can also be utilized by foreign nationals doing business in a US jurisdiction so long as the legal formalities are met. That said, those interested in setting up a company in the US are well-advised to seek counsel from an attorney licensed in the jurisdiction where the business is to be conducted.

US Immigration is likely one other point of interest to those seeking a corporate presence in the United States of America. If a US visa applicant has a bona fide business reason for traveling to the United States, then a US business visa may be obtained from a US Embassy or US Consulate overseas. For those who simply need to conduct a meeting or undergo specialized training, a US B1 visa may be the appropriate travel document. However, those wishing to remain for a relatively long period of time working in the USA may apply for a visa category such as the E2 visa or the L1 visa (either the L1A or L1B sub-category). In some cases, an H-1 visa may be the appropriate visa for an individual working and conducting business in the United States. Depending upon the category of the US visa being sought, an applicant’s unique qualifications and skills must be adjudicated by a US Consular Officer with appropriate jurisdiction.

For more information about company registration in Thailand please see: Company in Thailand or US-Thai Treaty of Amity. For further information about setup of a Company in the USA please see: US Company Registration.

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