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Sharifi & Baron Legal – BLOG

H1-B Visas Still Available

May 15th, 2009

As of May 11, 2009, United States Citizenship and Immigration Services (U.S.C.I.S.) announced that it is still accepting H1-B visa applications.  According to the USCIS website,

As of May 11, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

According to Greg Siskind’s blog, “This is the first time in several years the cap has not been hit immediately after it opened.”

What is the H1-B visa?

The H1-B visa is an employment based visa that allows workers with certain skills to work on a temporary basis in the United States.  Three types of workers qualify for the H1-B visa: the applicant must either (1) engage in a “specialty occupation,” (2) be a fashion model of distinguished merit and ability, or (3) provide services related to the Department of Defense.

“Specialty occupation” is a broad category defined as an occupation that requires (1) “theoretical and practical application of a body of specialized knowledge,” and (2) “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

Family-Based Immigration

May 13th, 2009

airport-signMany immigrants who reside in the United States want to bring their relatives to live with them.  While quotas limit the number of people who can immigrate to the United States, certain close relatives of U.S. citizens are exempted from those quotas.

Under the Immigration and Naturalization Act, “immediate relatives” of U.S. citizens are not subject to numerical limitations on immigration.  In order to qualify as immediate relatives of a U.S. citizen, the relatives must be “the children, spouse, or parents of a citizen of the United States.”

Relatives of U.S. immigrant residents who do not qualify as “immediate relatives” may still be able to immigrate to the United States, although they will be subject to quotas.  Family preferences include four categories:

  • Preference 1: Unmarried sons and daughters of U.S. Citizens,
  • Preference 2a: Spouses or children of Legal Permanent Residents (LPRs),
  • Preference 2b: Unmarried sons or daughters of LPRs who are not the children of LPRs,
  • Preference 3: Married sons and daughters of U.S. Citizens,
  • Preference 4: Brothers and sisters of U.S. Citizens.

Visas are allocated seperately to each of these preference categories.  The United States Department of State (DOS), periodically issues a bulletin with a chart that outlines the backlog of visas for each preference category.

If you are a U.S. Citizen or Legal Permanent Resident and you would like to petition for your relatives to join you in the U.S. it is important to have an attorney to guide you through the process of application.  The process can be complex and confusing.  An experienced attorney can help you understand the process better.

If you are the relative of a U.S. Citizen or Legal Permanent Resident it can also be very helpful to have an experienced attorney to help you understand the process of obtaining your visa.

Why Do Lawyers Have So Many Bad Advertisements?

May 11th, 2009

We’ve all seen them. Whether in the middle of a late-night CSI marathon or primetime during 30 Rock, bad lawyer ads are out in force. 2229290076_47b0c2bb1b

We here in Utah have our own batch of bad ads. Some of you may remember one particular firm depicting one of their attorneys giving a present to a judge and the judge ruling in their favor (something that the Bar Ethics Committee looked into as attorneys are not allowed to claim they can curry favor with judges). We see large smiling faces on park benches, bus stops and on every inch of the phone book. Primarily in the field of personal injury law.

But believe it or not Utah is not as bad as the ads taken out in some states. Take a look at this little link. Suddenly, park benches don’t seem as bad.

But where did all this start? Attorneys have influenced some of the greatest and most noble changes in American history. John Adams was an attorney and wrote that the proudest moment of his life was when he defended British soldiers involved in the Boston Massacre and ensured them fair trials. Abraham Lincoln was a lawyer. One of the attorneys at our firm became a lawyer because of the civil rights lawyers in the 1960′s and their fight against a racially biased judiciary. Through their perseverance, they won freedoms for minorities without resorting to violence as many do in other nations. Can anyone even imagine Thurgood Marshall appearing in an ad at a junkyard and talking about sticking it to insurance adjusters?

THE CHANGE

In 1908, the American Bar Association adopted the Canons of Professional Ethics and Canon 27 banned lawyer advertising with the minuscule exception of business cards. Things stayed pretty stable until the United States Supreme Court looked at the issue in the seminal case of Bates v. State Bar, (1977). The justices decided that lawyer advertising is free speech and is protected by the First Amendment of the U.S. Constitution. In passing, the Court also mentioned that clients should be informed of the available legal services in their areas and that it would be better as a whole for the legal profession if lawyers were allowed advertising privileges.

THE IMPACT

Nearly overnight after the Bates decision, lawyers began looking for avenues to market their services. Phone books began filling, lawyers hit the airwaves at radio stations, and eventually, the pièce de résistance of lawyer advertising, television ads began playing round the clock.

Many people ask why attorneys would purposely choose to be so tasteless as to show themselves punching out adjusters or making checks appear out of thin air. Well, the simple explanation is that it works. People seem to respond to the ads and the firms with the most television ads, even the tasteless ones, get many clients. Clearly though, there is a line. While some may see the ads as no different or better than any other service, like pizza delivery, a segment of the population will be convinced that they require the services of a law firm with more integrity.

Our firm handles personal injury cases of many different varieties, but we have chosen not to persue this type of advertising. Regardless of whether it works or not, some firms, like ours, have decided the law is still a noble profession that can be an engine of progress in society, and a means to help people and businesses with their problems.

So, before you judge all lawyers by a small percentage of lawyers that appear in terrible television ads, remember that many of the freedoms we enjoy today are because a lawyer had the vision and courage to believe law could be used for the betterment of us all. As it stands, lawyers’ reputations are somewhat tarnished by the actions of a few. But, perhaps a better way of looking at the issue is that one Thurgood Marshall makes up for thousands of atrocious ads.

Can a Small Business Owner Get Any Bailout Money?

May 6th, 2009

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Capitalism has been one of the greatest advents of the past millennium. Within a span of time of about 60 years, the average 18th Century Anglo-Saxon European went from working eighteen hours a day in the fields in exchange for a bowl of soup, to being able to feed his whole family on twelve hours of less arduous work in a factory (albeit, certainly not easy or glamorous work).

The foundation of capitalism was that the free market allocate resources within an economy. Imagine trying to determing everything from the right price of hot dogs in Chicago to the supply of milk in Georgia to the design of the next generation of cars out of Detroit. It is a task simply too large for any government or individual to handle. Historically, Adam Smith’s invisible hand is the only proven method of efficient resource allocation.

Capitalism is about incentives. The primary incentive for a business to do well is the fear of failure. So what happens when that fear of failure is removed? The outrages perpetrated by AIG comes to mind. Not only did AIG use tax payer money for such trivial matters as office redecoration, much of the ownership of the company is foreign, resulting in a transfer of wealth from the American people to foreign interests during an economic crises.

CAN ANYONE GET THE MONEY?

Only large corporations that have acted recklessly and irresponsibly qualify for the bailout money. A fiscally conservative company that did not partake in the previous two years financial meltdown, that kept their books clean and focused on good business, will not get a cent. In a sense, the government is rewarding bad behavior; the opposite incentive of free market capitalism.

WHAT ABOUT THE SMALL BUSINESS OWNER?

There is one portion of the bailout money aimed at lending institutions that originate consumer and small business loans. You, as a small business owner, may find it easier to obtain financing from your lending institution if it is backed by the Small Business Administration. Then again, you might not. When you go against the free market, no one really knows what will occur. The economy is a living, breathing force of nature. It is unpredictable and unmanageable. But, an attorney can at least calm the waters; a little.

This is an uncertain time for small business owners. With capital drying up, not to mention customers, the business owner must explore every avenue of cutting costs and available financing. An experienced attorney can be a comforting guide in tough economic times. They can ensure that your contracts will be enforced how you understand them to be enforced, that you have the right business entity, and if you’ve explored all the right financing options.

The fact of the matter is, in this economy, you cannot afford mistakes. spaceballspaceball1

Police Brutality and Prosecutorial Misconduct

April 30th, 2009

The New York Times recently discussed a case out of Brooklyn, New York where a group of young black men and women were summarily arrested by the police without cause. The police claimed that the youths were blocking traffic, inciting violence, and destroying property. There was only one problem: none of that ever occurred.Courtesy freefoto.com

As criminal defense lawyers, we often hear of police and even prosecutors violating the constitutional rights of ordinary citizens. People accused of crimes often feel isolated and frightened, and for a small minority of people, casting blame on the system is a coping mechanism. But that does not erase the fact that police brutality and prosecutorial misconduct does happen. But you don’t have to take it. There are ways in which to use the legal system to fight for your rights.

THE FACT IS THAT THE POLICE AND PROSECUTION CAN GET IT WRONG

The black youths in the case out of Brooklyn didn’t even have the zeal that a large group of young people might ordinarily possess. They were on their way to a wake for one of their classmates. They were, essentially, in mourning. The Brooklyn District Attorney is quoted as saying, “They were not just walking on one car; they were trampling on all sorts of cars. It was almost as if they were inviting their arrest.”

The problem, of course, is that every independent witness at the scene indicated that the group, ranging in age from 13-20, were well behaved and respectful. And not only did the witnesses state that the youths did nothing wrong, they also added that the males of the group were verbally abused by the police and even pushed around.

YOU DON’T HAVE TO PLEAD GUILTY TO ANYTHING

The charges were stalled in this case by months, even years, with the District Attorney’s Office hoping that the youths would just plead guilty to less severe charges, do their community service, and go away. But the youths were outraged and in a showing of valor, they refused to plead guilty to anything. With no evidence of any wrongdoing, most of their cases were dismissed by the prosecution.The rest were dismissed by the Courts.

The youths then sued the city for false imprisonment, as some of them were held in custody for more than a day and half. The city settled the claims with settlements ranging from $9000-$23,000.

This case shows that even poor, black, youth, a disadvantaged group that the prosecution thought would simply bow to the pressure of criminal charges, can fight and win against the government.

If you’re facing criminal charges, don’t simply give your rights away. Hire an attorney and fight. Much of the time, the little guy can win.

Does Marijuana Impair Drivers the Same Way Alcohol Does?

April 28th, 2009

One cannot drive legally in the state of Utah with cannabis in the system. You may be charged with DUI or, Driving With a Measurable Controlled Substance, and face hefty fines, community service, and jail time. Government agencies and prosecutors across this country have long made the argument that marijuana impairs drivers by changing perceptions, slowing reflexes, dulling coordination etc. Popular opinion as to the government’s claims, however, varies.

IS IT TRUE?

Two federal studies recently shed light on the subject. One study, done by the United States Department of Transportaion, had participants sit in fully operational driving simulators. Essentially, these are video games with a steering wheel and life-like movements that parallel driving an automobile. The participants were given alcohol, marijuana, or a combination of both. Though alcohol’s effects were obvious as the participants drank more and more, marijuana had only slight impairment effects and only occassionally-not on every participant like alcohol.
Another report titled “Marijuana and Actual Performance”, DOT-HS-808-078,  stated further that”THC is not a profoundly impairing drug….It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving . . . [it] appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample”

THEN WHY IS IT A DUI TO HAVE IT IN MY SYSTEM?

Although the latest research seems to suggest that there is not a significant correlation between THC blood levels and impaired driving, this does vary. Inexperienced users, users that ingest/inhale too much THC, or those that mix it with other drugs can certainly have the drug affect their ability to drive well. In the end, it will be up to legislators to read the studies and determine if driving under the influence of marijuana should be held akin to a DUI. Perhaps in states such as California, where legalized marijuana use is becoming more popular, this may have a chance. But there are not many criminal defense lawyers or legalization advocates in state legislatures, so as the law stands, driving with marijuana in your system is still a DUI2356481886_860235f0b9.

Is Waterboarding Torture?

April 23rd, 2009
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Waterboard used by Khmer Rouge in Vietnam

The ACLU has been fighting since 2005 to have memos released written by Bush administration officials detailing what is now being called their “illegal torture program.” Recently, the Obama administration has authorized the declassification of four of these memos and the result has been a windstorm of controversy. Not only did top Bush administration officials approve of the harsh interrogation tactics outlined in the memos, they thought in many instances that the CIA was not going far enough.

Although stress positions-such as hanging a detainee from the ceiling for hours on end-and food, sleep and water deprivation have raised some eyebrows, the controversy over the memos stem primarily from the practice of waterboarding.

WHAT IS WATERBOARDING?

Essentially, waterboarding is a form of simulated drowning. The victim is placed on his or her back on a downward slant and then immobilized with chains, cuffs, or straps. In many instances, a cloth or other obstruction is forced down the victim’s throat and then water is poured over the breathing passages, causing the victim to suffocate. Make no mistake; this is not bobbing your head for apples as some republican proponents have suggested. Waterboarding causes an immediate gag-reflex and the victim begins to fight, believing they are about to drown. In many cases, there are broken bones caused by the victim’s struggling for air, damage to the lungs, and even brain damage caused by oxygen deprivation. Taken just a little too long, waterboarding will easily kill. In addition to physical damage, it can cause lasting psychological scars resulting in post traumatic stress disorder.

WHERE DID IT COME FROM?

The first reported uses of waterboarding were conducted by the Spanish Inquisition to draw confessions from prisoners. Afterward, it was adopted as a favorite method of interrogating prisoners by such organizations as the Gestapo in Nazi Germany and was used by the Japanese on American POW’s during World War II. In fact, many Japanese captors were tried for war-crimes following the War for their participation in waterboarding American soldiers.

But the current use of waterboarding, and its justification by the Office of Legal Counsel under the Bush administration, was inspired by Chinese and Vietnamese communists in the 1960′s and 1970′s. It was a favorite method of Pol Pot in torturing dissidents and much of his equipment is still on display in Southeast Asia.

IS IT TORTURE?

Waterboarding has undoubtedly been considered torture for nearly all of history since its inception. An American soldier during the Vietnam War took a photograph of himself and a South Vietnamese soldier waterboarding a North Vietnamese POW near Da Nang. The soldier was court-martialled within one month of the photo’s release and was discharged from the military.

Semantics can not wipe away the facts of what is occurring when someone is waterboarded. They are purposely and methodically caused intense pain to extract information. Even the Spanish Inquistion, known for their brutallity, considered it a method of torture akin to the rack or burning. Only by the Bush administration’s Office of Legal Counsel has it ever been defined as something other than torture.

IS THERE ANYTHING ELSE THEY COULD’VE USED?

The fine men and women of law enforcement across this country get confessions everyday. They do not beat, they do not torture and they do not inflict pain to get them. They use an understanding of human behavior and, in many cases, deception to get what they need. It is not unreasonable to assume that the CIA and Defense Department could have used the same tactics.

Perhaps one day we will look back at this period as a learning experience; that morality should never be exchanged for expediency.  As Benjamin Franklin said, “Those that exchange a little portion of liberty, for a little portion of safety, will soon have neither.”

Automobile Searches

April 22nd, 2009
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Justice Stevens delivered the Court's opinion in Arizona v. Gant

Yesterday, the United States Supreme Court radically changed Constitutional law relating to automobile searches in its Arizona v. Gant opinion. Gant reinterprets a decades-old rule that allowed police to search a vehicle after arresting a driver or occupant of the vehicle without any independent justification for the search.

According to the Washington Post, under the new rule “police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence, or when it is ‘reasonable to believe’ there is evidence in the car supporting the crime at hand.”

The Fourth Amendment to the Federal Constitution provides an important protection to individual privacy. It provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Gant is an important decision that returns some of the meaning to the Fourth Amendment that had been lost by previous Supreme Court decisions. In previous decisions, the Court had held that the right of persons to be secure in their vehicles was so reduced that police could search a vehicle as part of any arrest.

The defendant in Gant, for example, was arrested for driving on a suspended license. Mr. Gant was handcuffed and placed in a patrol car. Five police officers were present supervising Mr. Gant and two other suspects who were all handcuffed in patroal cars when Mr. Gant’s car was searched. The police stated that the reason they searched the car was “Because the law says we can do it.”

In Gant, the Supreme Court held that police do not have a blank check to search vehicles after arresting a driver or vehicle occupant. The suspect must be a risk of getting a weapon or evidence out of the car.  Police can also search the car if they have reason to believe that the car contains evidence of the crime for which they arrested the suspect.

Gant is an encouraging protection of the right to be free from unreasonable searches.

Who Does the Social Security Administration Consider “Disabled?”

April 20th, 2009

Dealing with the Social Security Administration can be a frustrating and time-consuming experience. As many as 75% of disability claims are denied in the initial stages and the numbers only get worse during the appeals. However, there are ways you can increase your chances of having your claim approved. A good representative, such as an attorney, can usually help you guide the system smoothly. But attorneys are not miracle workers and to receive payments you must meet the Social Security Administration’s definition of “disabled” if you wish to receive benefits.handicap-sign1

What They Look For

The Administration typically looks at your most recent work history to determine if you will be able to continue with your present employment. They will also look into your background to see what type of work you have performed in the past and what type you may be able to do in the future, even with your disability. In addition to work history and the potential for future employment, they will examine your medical records and may even have one of their own physicians evaluate you to determine if your condition is severe enough to warrant benefits.

Is There No Other Way?

Aside from work history, the administration does have another way in which to determine if a person is “disabled” as that term is defined in the context of Social Security Disability Insurance: what is known as a per se disability. Such a disability is simply one that the Administration has listed on a master list of disabilities they consider so severe, that the claimant is automatically determined to be disabled.

You can find the list of impairments the Administration considers severe enough to warrant an automatic qualification of disability payments on their website. Though the list is broad, you will find only the most severe of conditions listed.

If your condition is on this list of impairments, you will find the process of filing your claim for benefits more efficient and less time-consuming than those without such a condition.

What is an “Information?”

April 17th, 2009

courtroom2It is not uncommon to get a ticket from a police officer and go to court, only to have the judge read totally different charges.  How did that happen?

In Utah most crimes are prosecuted using a document called an “information.”  The information is a document filed by a prosecutor that sets out the charges against the defendant.

Usually, prosecutors receive a citation or a police report from a law enforcement agency like the Utah Highway Patrol or a local police department.  Law enforcement usually recommends the charge they think should be filed against the defendant.  The prosecutors review the law enforcement reports and makes their own decision about what charge should be filed.  The information contains the charges the prosecutors thought were appropriate, which could conflict with law enforcement’s recommendation.

If you thought you were being charged with one crime and that charge changes unexpectedly, you should probably get advice from a lawyer to explain why the change happened and whether the change is supported by the evidence the police have.  Do not plead guilty until you understand the charges against you and the consequences of pleading guilty.

Some changes, like domestic violence and DUI, can have serious consequences for immigration, driving priviliges and the right to own weapons.  Make sure that you have competent legal counsel before you plead guilty to either of those charges.

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