Este episodio ofrece un breve resumen de las estrategias esenciales para proteger sus activos en los Estados Unidos. Aprenda a utilizar fideicomisos y otras técnicas legales para evitar amenazas a su dinero en efectivo, propiedades de inversión y juguetes favoritos (ej. barcos, automóviles, etc.). Manténgase informado y manténgase a la vanguardia.

See more videos on asset protection here.

Este es un breve repaso sobre la protección de activos extraterritoriales, centrado en la banca extraterritorial y las jurisdicciones con protecciones contra acreedores. Consulte los enlaces a continuación para obtener un análisis más profundo.

See additional materials on asset protection here.

~ Jeff

There are a few exceptions, like an uncontested quiet title action or uncontested probate, but generally the length of time and amount of work involved in a case depends very much on what the other side does. If the opponent files a motion, you will have to respond. That slows things down and creates more work — i.e. more fees.

The same is true for actions the judge takes in the case.  Judges impose deadlines and, sometimes, take other actions.  The lawyer has to respond accordingly.

And, what if you settle the case along the way?  What about appeals?  What if the case is removed to federal court?

You get the idea.  It is essentially impossible to tell a client just how much a lawsuit will end up costing.  However, that does not mean you cannot have some idea of what to expect.   That is the purpose of this article.

General Rule 1:  It is less expensive to defend a case than to prosecute a case.  It is up to the Plaintiff to move the action forward, so the pressure is on the Plaintiff to get things done.  With some exceptions, it is usually less work for a Defendant because the Defendant has the luxury of doing nothing until the Plaintiff forces the issue.

General Rule 2:  State court is less expensive than Federal court.

Now, the different stages of a lawsuit are predictable, so we can break down what happens at each stage and come up with some ballpark idea of the costs and fees for each — though always with the caveat that things can be more or less expensive depending upon what the other side does.

Stage 1 – Initiation

If you are the Plaintiff, then your lawyer will need to draft the Complaint and Summonses to get things started.  Depending upon the complexity of the case, that could take around five (5) hours of work.   Remember, the lawyer (and staff) first has to understand the case and go through the evidence to determine a strategy.  Then, the writing can begin.  So, it is going to be a couple of grand or so just for the research and drafting.

Then, when the Complaint is ready, the Court charges a filing fee.  The amount may vary a bit, but it is probably in the range of $400 to $600.  (Caveat:  It’s much more than that if your the plaintiff in a foreclosure action.)

After that, the Complaint and Summons have to be served by a process server.  You can have the Sheriff’s department do that, which is cheaper, but they take longer . . . and you cannot really bug them to hurry up.  Most people go with a private process server, which will cost around $100 per defendant.

So, if you add it all up, you are looking at something like $2,500-3,500 to get the case off the ground.

If you are the Defendant, then you only need to file a response to the Complaint.  There are a few different types of responses you might file, such as a Motion to Quash, Motion to Dismiss, or an Answer with Defenses.  Your lawyer will decide which approach is best, but any one of these responses is about 1-3 hours of drafting.  So, you are looking at about $800-1,000 for each of these responses.  Bear in mind your attorney may use just one of these responses or, perhaps, all three, depending upon the situation and your overall case strategy.

Stage 2 – Discovery

This is the stage where the parties get information from the other side or third parties.  There are cases that require only minimal discovery or, even, no discovery at all.  Also, the type of discovery utilized makes a big difference in costs.  So, results may vary wildly at this stage.

There are three types of written discovery requests:

• Interrogatories,
• Request to Produce, and
• Request for Admissions.

These “discovery products” are somewhat predictable and template-based.  So, it is simply a matter of drafting requests that are specific to your case.   You can expect about 2-3 hours of work ($800-1,600) per discovery product.  Your lawyer will decide whether to use some or all of these discovery options.

Depositions  –  Another common discovery tool is taking a deposition.  That’s a different beast altogether. 

First, you may have to issue a subpoena, which is additional drafting.  And, you’ll need a court reporter present to transcribe the proceedings.  That’s an added costs.  Nowadays, depos are often done by videoconference, which makes things more convenient but — in my experience — not really less expensive.

But the main thing is that grilling a deponent in person is very often a full-day affair (or, even, multiple days).  Once you go to the trouble of getting the person in the seat and under oath, you will want to take full advantage.  And, usually, the deponent will put up some resistance, which slows things down.

So, you can expect a single deposition to cost between $1,000-5,000.  Depos are much more expensive but, depending on the deponent and the case, the can be very effective.  Think about it.  Nobody likes being deposed, so you can really put some pressure on the other side with this technique.  If that leads to a quicker settlement, then it was worth every penny.

Rounds of Discovery

For complex cases, you may have to go through more than one round of discovery.  So, your lawyer may be sending out a first set, second set, third set, etc.  If so, multiple the estimate above by the number of sets that go out.

Motion Practice

Another thing to keep in mind is the motion practice that can happen at this stage.  For example, if the party receiving the discovery request does not respond, or does not provide good responses, then your lawyer will have to file a Motion to Compel and, probably, go to a hearing.  That additional motion practice means additional expense.  Call it about $1,000 for a motion to compel and hearing attendance, assuming remote appearance (Zoom) is permitted.

Stage 3 – Summary Judgment

Some cases can be disposed in whole or in part without going all the way to trial, such as cases based on a contract.  That usually happens by filing a Motion for Summary Judgment.  If you are the Plaintiff, you are hoping to end the case with this motion, so your lawyer is going to put some extra time into researching and drafting this motion.  Again, if this works, it will be worth every penny, so you might as well give it your best shot.

Then, there will be a hearing on the motion.  I would estimate the whole process will take from 3-6 hours of work ($1,200-3,000), depending upon the complexity of the issues.

Stage 4 – Trial

Summary judgment is for cases that do not involve evidentiary issues.  In other words, the judge is not required to hear testimony or deal with disputed facts.  Whenever that is not possible — which is most often — then the case will have to be decided through a trial.

H&S deals mostly with business and real estate disputes, which do not typically call for a jury.  So, the analysis here is on non-jury trials.  Just bear in mind there are additional steps (and, therefore, additional cost) involved for jury trials.

Preparation

All the exhibits and witnesses have to be prepped.  The research has to be finalized and all the evidence reviewed — i.e. we want no surprises at trial.  The strategy needs to be discussed, and everybody involved, including you, has to be ready to go.  It’s a big deal.

Show Time

Then, there is the trial itself, which can take one day or a week, depending on the case.  So, again, results can vary wildly.  But, just to give you some idea, this stage is likely to cost somewhere in the range of $3,000, for a relatively simple case, to $10,000 for a fairly complex case.  I’m referring, of course, to typical small business litigation in State court.  Obviously, big corporate cases are a different statosphere.

Other Costs

Another thing you probably need to count on is mediation.  At some point, one of the parties will ask for mediation, or the judge will simply send you to mandatory mediation in the hope of getting the case settled and off the docket.  That will be a full day of work, plus the mediator’s fees, so count on $2,000-$3,500 for that.

Then, there are appeals.  There is even something called an “interlocutory appeal,” which can happen before the case is actually decided.  So, there can be costs of appeal both during and after the case.  There is no “motion practice” in appeals, and oral arguments are somewhat uncommon, so the costs are fairly predictable.  But, appellate work is notoriously expensive because the level of “lawyering” goes up.

Conclusion

Hopefully, the analysis herein helps you to better understand the factors involved in litigating a case, so you can better prepare and make informed decisions.  Never forget that a case can settle anywhere along the way, which puts an end to the expenses.

I’ve also done a video on this topic, which you can access here.

~ Jeff Harrington, Esq.

¿Cómo se puede combinar unas empresas (LLC) con unos fideicomisos (land trust) para conseguir el resultado óptimo?  La respuesta está aquí.

E-signing technology is becoming more and more prevalent, and there is no denying the convenience.  Affixing your signature with a simple tap on your phone screen is a beautiful thing.  After all, the alternative is to print the document, sign it, scan, and then email the scanned copy.  Sometimes you have to go find witnesses, and, if notarization is required . . . well, now you really got yourself a project.

So, naturally, we would all prefer to e-sign documents.  However, the convenience may not be worth it if e-signatures are not enforceable.

Legal Analysis

The legal analysis here is actually the easy part.  The Electronic Signatures in Global and National Commerce Action (ESIGN) has been in place at the federal level for over 20 years.  The same is true for the Uniform Electronic Transactions Act (UETA), which has been adopted at the state level by all but two States.  Simply put, the legislation says:

A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

So, from a legal point of view, an electronic signature has exactly the same validity as a handwritten signature.

Practical Application

Here, the analysis gets a bit more interesting.  After all, the goal is to bind people to the rights and obligations in the agreements they sign.  What we really care about is enforceability.

Is it easier for someone to weasel out of a contract with e-signing than it would be with a handwritten signature?  The answer to that question turns on how easily the person can say: “Hey, that’s not my signature.”

In the end, what a judge wants to know is whether or not the parties intended to be bound by the agreement.  Assume for a moment some people might be willing to lie in order to get out of a contract.  Shocking, I know, but it could happen.  So, now, you have to prove that the person actually meant to sign the contract.  How can you do that?

The traditional method of having witnesses and/or notarization is a pretty iron-clad way of proving that someone voluntarily signed a document.  These methods of “acknowledgement” are still very good evidence nowadays, but they are not as undeniable as they once were.

The reason is that, with software available today, it is not particularly difficult to take a picture of someone’s actual signature and affix it to another document. 

Someone looking to commit fraud could use PDF and/or JPEG manipulation software to fake signatures of both the signer and the witnesses.  The same is true for notarization.  All one would really need is a picture of the notary’s stamp.  With that, and maybe a little old-fashioned forgery, a fraudster could put together a document that appears to have been signed, witnessed and notarized.

So, the traditional methods are still good, but they are no longer airtight.  In fact, they never have been (e.g. Catch Me If You Can).  If someone wants to fake a document, they can.

If signatures can be faked, then the person you are trying to hold to a contract can say: “That does look like my signature, but I didn’t sign the contract.”  So, now what do you do?

Modern Solution

Since there is no way to ever know with 100% certainty that a signature is authentic — even with witnesses and notarization — should we not take advantage of the convenience we get through e-signing?

On top of the convenience, in some important ways, e-signatures can be even more secure than handwritten signatures. 

For one thing, the e-sign apps generate a Certificate of Authenticity showing when and where the electronic signature was affixed.  That is certainly not proof positive, but it might be just about as good as notarization.

Now, I know what you are thinking.

E-sign apps depend solely upon email addresses, so it might be very easy for a person to get out of a contract by just saying “Someone hacked my email” or “Another person who has access to my email account signed, but I didn’t authorize that.”

Best Evidence

That brings us to the crux of this article.  What if, in addition to the other party’s e-signature, you also have an email thread showing discussions leading up to execution of the document?  How is the other party going to wriggle out of that evidence?

Even if you only have a single confirmation email saying something like “I received the document you e-signed earlier today,” any judge would find that to be very compelling evidence.

As long as the other side does not respond to your email with something like: “What are talking about?  I didn’t sign anything,” then those written communications are likely to be very hard to overcome.  In most cases, you will have a fairly extensive thread of communications, both before and after electronic execution, so you should be in very good shape if you later have to enforce the contract.

Conclusion

So, when you get down to the actual purpose of a signature, which is to demonstrate a person willingly entered into an agreement, today’s e-signing apps are not only amazingly convenient and environment-friendly, but they also tend to authenticate signatures more effectively than the traditional methods.

Of course, there are many agencies that have not caught up with the times.  For example, we still have to submit immigration documents, loan documents, and others with wet ink originals.  But, it is clear e-signing technology is the future, and we are all be better off for it.

     ~ Jeff Harrington, Esq.

• sciences
• arts
• education
• business
• athletics
• motion picture or television industry

There are some great advantages to an O-1 Visa, but be aware these are not easy visas to get.

You’ll need to show you have “extraordinary achievement,” in your field.  The purpose of this article is to help you understand what that means, so you can decide whether the O-1 Visa is right for you.

O-1 Overview

The term “extraordinary achievements” seems vague and broad, but the USCIS has given us some rather specific examples of items that meet this requirement.  First, be aware there are two subcategories of the O-1 visa that are equal but different: the O-1A and the O-1B. The O-1A is meant for those with extraordinary achievements in the fields of science, athletics, business, or education (left-brainers, if you will). Here is a list of the evidence that you can use to reap the O-1A benefits:

• A well-recognized international award such as a Nobel Prize or Olympic medal
• A less well-known award that is nationally or internationally recognized
• A membership in an exclusive organization related to your field
• Mentions of your published material in trade publications
• Scholarly articles that you’ve written for your field
• Other significant contributions to your field
• Commanding a large salary
• Sitting as a judge or on a panel of judges for your peers
• Holding critical positions for esteemed organizations in your field

The O-1B is, as you’ve probably guessed, more for right-brained individuals and is geared toward extraordinary actors and artists. The criteria for this one is slightly different from those of the O-1A. You’ll need to show proof of:

• A top-tier award like an Oscar or a Grammy
• A position as the lead role in a well-known production
• Having received national or international recognition for your achievements
• A lead and/or starring role in a well-known organization
• Reviews, publications, or other news that indicates your commercial success
• Commanding a large salary
• Recognition for your achievements from reputable organizations of your achievement

Remember that, if you have a top-level award like a Nobel Prize or Oscar, you satisfy the requirement. If you do not have a top-level award, then you will need to present evidence of at least three of the other items on the above list.

Also, these lists are not exhaustive and supplementary evidence can be used. Your immigration attorney can help you determine what can be used in this case.

O-1 Visa Benefits

So now that we know the standards that this visa demands, we can examine the O-1 visa benefits that come along with the prestige. Overall, well cover the following topics:

• Cost
• Sponsors
• Validity Period
• Assistants and Family Members
• Green Card Process

How Much Does it Cost?

When viewed in the light of other nonimmigrant visas, the O-1 is relatively inexpensive. As the petitioner, you are responsible for the $460 basic filing fee for the I-129 petition and the $190 charge for the DS-160 online application (only if you are outside of the U.S. and are going through consular processing). Additionally, you can opt to pay $1,225 for premium processing to have your I-129 processing time expedited from the usual six months to just 15 calendar days.

So, all in all, the O-1 visa cost is between $460 and $650 without premium processing. Compared to the hefty H-1B fees that add up to over $6,000 at times and the loose E-2 visa investment of $150,000, the O-1 is relatively light on the wallet.

Who Can Sponsor Me?

One question we often get is: can I self-petition? And while self-petition ing or self-sponsoring is possible through visas such as those in the E class, it is not possible through an O-1.

So why have we added it to the list of O-1 visa benefits? This visa is advantageous because of the versatility of who your sponsor can be. Most visas that require a sponsor maintain that the sponsor should be an employer. However, because O-1 visa applicants are often contracted rather than hired at will, the sponsor can either be an employer or a U.S. agent.

An agent is someone that is hired as representation for the employment and interests of the O-1 applicant. This designation means that you do not have to be committed to any one employer or seek a job offer to qualify for the O-1. You simply need someone to represent you who will sponsor you for your visa. However, that person must represent you throughout your O-1 visa duration of stay.

Also, you can also go the route of getting a direct employer. If this is your case, then you will need to make sure that this employer is your only employer. You can’t switch from one to the other to maintain your status and you will need to obtain a new O-1 visa in order to continue once your contract with your employer is over.

How Long is the O-1 Visa Validity Period?

Here is where the O-1 visa benefits really pay off. Most other visas have a limited duration of stay. The H-1B allows you to stay for six years, the L-1 for five to seven, and the J-1 for an average of five. In contrast, the O-1 offers an initial period of stay of three years, but allows for unlimited extensions. Essentially, you can stay and work in the U.S. as long as you are under O-1 status and meet the requirements for an O-1 extension. These extensions are granted in one-year increments and are not guaranteed, however.

To petition for an O-1 visa extension, you need to file:

• Another I-129 form along with the filing fee
• A copy of your I-94 arrival/departure card that has a non-expired departure date, and;
• A written statement from your agent or employer which states the reason for the extension and why your continued presence in the U.S. is required.

Assistants and Family Members

Another O-1 visa benefit is the fact that you can bring your family along under your O-3 status, which is granted to your spouse and unmarried children under the age of 21. Their visa validity time will be the same as yours, and if you receive an O-1 extension, that extension will be passed to your O-3 family.

Additionally, you can bring along assistants that can be considered essential to your work in the U.S. under O-2 status. Like O-3 family members, their status is dependent on yours. If your status is extended, theirs will be too. If your status is revoked, that reflects on their status as well. Also, O-2 holders can bring their own family members under O-3 status.

Lastly, O-2 and O-3 holders are capable of adjusting their statuses to lawful permanent resident, which we’ll talk about next.

O-1 Visa to Green Card

In the field of immigration law, there’s a term known as “dual intent” which refers to a nonimmigrant visa that allows the holder to pursue lawful permanent resident (green card) status while still a nonimmigrant. Not every visa is a dual intent visa. Some notable exceptions are the J-1, TN, and B-1 visas.

However, the O-1 is among the visas that are considered dual intent, so your status will not be jeopardized or otherwise negatively affected by filing a petition for a green card. For many, this is the most valuable of the O-1 visa benefits.If you are interested in making your stay in the U.S. a permanent one, here is how to go from O-1 status to green card.

You first need to determine which green card you would like to pursue. Because the qualifications are so similar, most O-1 holders choose the EB-1A for aliens with extraordinary achievement or EB-1B for outstanding researchers and professors. Neither of these green cards requires a PERM Labor Certification and the EB-1A does not require a job offer or sponsoring employer, which is a huge advantage and lets you carry over your O-1 visa benefits.You can also look to qualify for the EB-2 green card, but that does require a PERM, job offer, and sponsor.

Once you determine which green card you would like to pursue, you will need to file an I-140 petition. Either you or your employer depending on your green card as your O-1 agent cannot petition for you. Once your petition is received by the USCIS, that date will become your priority date. It will be up to you to stay up-to-date with the latest final action dates on the monthly visa bulletin. Once you see that the final action date for your green card category and country has matched or passed your priority date, a visa number will be made available and you will be able to move onto the next step.

When your priority date is current, you can file an I-485 and appropriate fees to the USCIS to have your status transferred from O-1 to green card status. Depending on which green card you choose and the final action dates in the visa bulletin, this process can take several years or only a few months. Speak with your immigration attorney to find out more about your unique case.

How Our Immigration Attorneys Can Help

With a visa as prestigious as the O-1, the stakes can be high and the potential to make an innocent error can make filing your petition a nerve-wracking experience. Protecting your investment is likely a high priority for you and your case and the best way to do this is to hire an expert to help you take advantage of the O-1 visa benefits.

~ Jeff Harrington, Esq.

One of the primary advantages of the so-called “EB-1A” is that you do not have to be sponsored by an employer.  You can “self-petition.”  You also do not have to go through the labor certification process.  And, of course, the other great thing is that this visa gives you permanent residence.

With this visa, the US is saying “We want you talented people, whether or not you have a sponsor, and you are welcome to stay here as long as you want.”

There are actually three classes of people who can get an EB-1 visa:

• Those with extraordinary ability in sciences, arts, education, business, or athletics.

• Outstanding professors and researchers who are recognized internationally for their outstanding academic achievements in a particular field.

• Certain executives and managers of foreign companies who are transferred to the U.S.

This article focuses on the first class, which is for aliens who have distinguished themselves in their field of work.

Eligibility

The way the law reads, you have to meet two criteria:

1. Demonstrate “extraordinary ability in sciences, arts, education, business, or athletics through sustained national or international acclaim” and

2. Provide “extensive documentation” in support of the extraordinary ability.

If you are thinking this description is far too vague, you are right.  The question is “What does the USCIS consider to be extraordinary ability?”

Let’s look at more specific criteria:

A.  Have you won a Nobel prize? If so, you’re in.  Let’s get you signed up.  If not, keep reading.

B.  Can you meet any three (3) of the following?

• nationally or internationally recognized awards for excellence
• membership in a group that only permits professionals of outstanding achievement
• publications in professional journal
• media coverage of alien’s accomplishments (i.e. magazines, journals, TV, radio, etc.)
• judge of work performed by other professionals in the field
• important contributions to field
• work displayed at exhibitions or showcases
• commercial success in performing arts
• leading or critical role in distinguished organizations
• high salary compared to others in the same field

Having a checklist like this is helpful, but it does still leave grey area.  In reality, it is a bit dicey to get too specific with the characteristics of a successful petition since (i) the USCIS trends change over time, and (ii) we do not want to discourage clients who might not perfectly fit the description but who would still make good candidates.

With this caveat in mind, consider the following examples of successful EB-1A petitions.

Example #1

Field: Behavioral Neuroscience

Degree:  Ph.D.

Title: Scholar-Employee

Nationality: Chinese

Key Characteristics:  Three articles in scholarly journals, which have been cited in other publications a combined 140 times.  Seven letters of recommendation from peers.  Conducted peer-reviews for 14 scholarly journals.

Example #2

Field: Salsa Dance

Title: Competitor & Instructor

Nationality: Slovenia

Key Characteristics:  Various prizes in home country and internationally.  Leading role in organization by creating dance curricula and online instructional materials.  Number of articles about her in major media publications.

Example #3

Field: Molecular Biology

Degree:  Ph.D.

Title: Senior Research Associate

Nationality: Chinese

Key Characteristics:  Fifteen peer-reviewed publications, which have been cited in other publications a combined 150 times.  Six letters of recommendation from experts in the field.  Conducted peer-reviews for 25 scientific journals.

Example #4

Field: Computer Engineering

Degree:  Ph.D.

Title: Senior Research Associate

Nationality: India

Key Characteristics:  39 peer-reviewed publications, and one book, which had been cited over 300 times.  Conducted peer-reviews for 30 scientific periodicals.

Example #5

Field: Soccer

Title: Referee

Nationality: Northern Ireland

Key Characteristics:  Experience refereeing professional, international competitions.  Recommendations from colleagues for his mentorship of younger referees.  Recognition in the media.

As you can see, there is a wide variety of experience and accolades that can lead to successful petition.  If there is an over-arching key to focus on, it is demonstrating you are a leader in your field.

UPDATE

The immigration laws have not changed, but the enforcement of those laws does vary from administration to administration. Under Tromp, there were higher denial rates for this kind of visa. We have largely seen that reversed under the Biden administration. However, in 2023, we have seen a significant retrogression with regard to applicants from India. In fact, as of the date of this article, there is a temporary halt on the issuance of green cards to Indians due to annual limits been reached.

~ J. Harrington

Check out more articles on immigration visas here.

¿Estás pensando en demandar a alguien? ¿O tuvo una mala experiencia en un pleito? No se pierda esta discusión inusualmente franca sobre los lados buenos, malos y feos del litigio.