The Letter of The Law: May 2014

IN THIS ISSUE:

IMMIGRATION LAW: The U Visa: Immigration Protection for Those Suffering Serious Crimes

FAMILY LAW: What is "FLARPL"?

FAMILY LAW: Never Lose Sight of the Most Important Aspect of Your Divorce: Your Children

The U Visa: Immigration Protection for Those Suffering Serious Crimes

By: Justin Taruc

The U Visa, specifically provided to aliens who are victims of certain serious crimes, is one of the more recent changes in the United States' immigration scheme. This unique visa was enacted by Congress to serve two important purposes: to enhance law enforcement's ability to investigate and prosecute cases of serious crime; and to offer immigration protection to the victims of such crimes who may otherwise be fearful of assisting law enforcement. Although the United States Citizenship and Immigration Service (USCIS) started rolling out the U Visa in 2009, many aliens and undocumented immigrants are unaware of this potential source of immigration relief.

The Immigration and Nationality Act (INA) Section 101(a)(15)(U) lays out the basic requirements that an alien must meet in order to be eligible for a U Visa. First, he or she must have suffered substantial physical or mental abuse from an act deemed to be in violation of United States law, or that occurred in the United States or one of its territories. Crimes that make such a person eligible for a U Visa include rape, domestic violence, sexual assault, kidnapping, and stalking. Second, he or she must possess information concerning the criminal activity. Third, he or she must be helpful, is being helpful, or is likely to be helpful to law enforcement officials in the investigation or prosecution of the criminal activity. Importantly, this does not mean that the perpetrator of the underlying crime be prosecuted or brought to trial. Rather, such a person only need prove that they have been or will be helpful to law enforcement in the investigation or prosecution of the crime.

The U Visa provides several benefits. Although the U Visa is listed as a nonimmigrant visa, it potentially provides a path to United States Citizenship. The U Visa is valid for four years, but the alien is eligible to apply for legal permanent resident status after three years. During this time, he or she is permitted to lawfully live, work, and provide for their family in the United States. In addition, unlike several of the other nonimmigrant visas, the U Visa regulations allow "derivative" status for the U Visa applicant. Importantly, derivative status allows parents and siblings under the age of 18, if the U Visa applicant is under the age of 21, to also obtain legal immigration status as derivatives under the applicant's visa application. Where the U Visa applicant is married and has minor children, the spouse and minor children of the U Visa applicant will also be eligible for U Visa status. Similar to the U Visa applicant, those family members who are granted derivative status are allowed to live and work in the United States lawfully.

Notably, USCIS has enacted a restriction that only 10,000 U Visas will be approved yearly. Once this limit has been reached, USCIS will cease issuing U Visas for that year, but will continue to review U Visa applications for eligibility. Those applicants that USCIS deems eligible will be placed on a waiting list to receive a U Visa once a visa is available. Therefore, it is important to apply as soon as possible in order for the application to be reviewed by USCIS and, if eligible, to be granted a U Visa.

What is "FLARPL"?

By: David L. Miller

Where am I going to come up with the money to hire an experienced family law attorney to represent me in my divorce? This question is asked by many spouses who have just been served with divorce papers, or who wish to end their marriage. The majority of the time, a client with less financial ability than the other spouse will borrow the money family law attorneys require before accepting a case (i.e., the "initial deposit"). The lender is usually a parent, sibling or good friend. However, for many people, this is just not possible.

So, do you represent yourself against the experienced family law attorney your spouse hired, or do you simply agree to whatever terms are offered to you? Well, you may be in luck. The California legislature realized that it is extremely unfair for one spouse (i.e., the spouse with the superior financial ability) to take advantage of the other in a divorce situation merely because they had the ability to hire a family law attorney while the other did not. The legislature recognized that a family law action is perhaps the most serious legal action the majority of residents will ever participate in because of the issues involved. For instance, the divorce action will effect when and under what circumstances you will see your children, where you will live, how much take-home pay you will have in the years to come, and how your retirement benefits will be divided, just to name a few.

To level the legal playing field, the legislature created a law that permits a spouse to grant a lien on their home in favor of their family law attorney. This is known as a "Family Law Attorney's Real Property Lien," or FLARPL. Here is how it works.

Let's say you found a family law attorney you would like to represent you in your divorce. The attorney quotes you the amount of the initial deposit and their hourly rate. They explain that each month you will receive an invoice detailing the work performed, and how much was deducted from your deposit to pay that particular invoice. They further explain that when the deposit is gone, you will be required to make a "supplemental deposit" or pay as you go (e.g., each invoice is paid as they are received). Otherwise, the attorney will withdraw from the case and leave you to represent yourself or find another attorney.

If you are unable to come up with the initial deposit and/or the supplemental deposit later in the case, you may wish to ask the attorney if they will accept a FLARPL. In essence, you are promising to pay the attorney for the legal services they provide and securing your promise by granting them a lien on your home (i.e., a promissory note secured by a deed of trust). If the attorney is willing to wait for payment, they will determine if there is enough equity in the property to cover the amount of the promissory note. For example, the attorney asks for a promissory note in the amount of $20,000. The attorney determines that the home has a fair market value of $700,000 and a mortgage of $200,000. This leaves $500,000 in equity. As long as the home is community property, you as the client have a $250,000 interest in the equity. The attorney would be satisfied that adequate security exists in the home to secure your promissory note. The FLARPL would only attach to your interest in the property.

The attorney would then prepare the necessary documents which include certain mandatory disclosures required by the California Rules of Professional Conduct. These rules exist to protect the client, not the attorney. You would then be given the opportunity to have the documents reviewed by an independent attorney of your own choosing to ensure that your rights are being protected.

Once you understand your rights and responsibilities under FLARPL, you sign the necessary documents and return them to the attorney. A Notice of FLARPL would then be sent to your spouse and the court to provide an opportunity for a spousal objection to be made. If no objections are made within 20 days of the notice, the attorney would record the lien in the county recorder's office. The attorney would then represent you throughout the divorce proceedings without worrying about being paid for their services.

Usually, at the end of the divorce proceeding and following the division of property, the client is in a position to pay their legal bills. This may occur because they receive 50% of the savings accounts, deferred compensation accounts, IRA's, liquidation of other assets, etc. Sometimes, the former family residence is sold to a third-party because neither spouse wants the home, or because neither spouse can afford to keep it. In any event, once the client pays their legal bills, the attorney releases the lien on the property and the lien no longer exists.

If you find yourself in the unenviable position of needing a family law attorney without the present financial ability to hire one, consider asking the attorney if they would accept a FLARPL. Many attorneys are not comfortable accepting a client's case using this payment method. Some simply are not able to wait to be compensated for 6 to 9 months. If you are lucky enough to find an attorney willing to use a FLARPL, just remember they are doing you a favor at a very serious moment in your life. It is these types of attorneys who generally care about your situation, and who will prove this to you during your case.

Never Lose Sight of the Most Important Aspect of Your Divorce: Your Children

By: Hoang-Anh Zapien, Esq.

Couples going through a divorce are often so immersed in fighting with the other party that they forget the most important thing about their divorce: their children. Instead, parties become short, aggravated and distant with their children because they have expended all of their energy fighting with their ex-spouse.

Below are some questions and comments compiled by C. Paul Wanio, PhD, LMFT, that remind parents about the most fundamental needs of every child.

1) How can I caringly protect my child from excessive conflicts and frustrations at home?

A child must have a feeling of safety and protection at home. A child needs to know that someone is in charge who will not allow overwhelming emotions or situations to occur, will set limits with fairness, will listen compassionately, and will explain confusing situations to alleviate the child's fears.

2) How can I help my child to not feel guilty or ashamed about mistakes, accidents or failures?

Children need to learn from their mistakes, not feel put down or punished. They need to believe in themselves, to know that it is okay to make a mistake, and that you still love them no matter what.

3) How can I assist my child to feel a sense of self-esteem and encouragement?

Children need to feel that their self-worth does not merely depend upon accomplishments, but upon who they are as individuals. They need to feel accepted by you even if you or others do not always approve of their behavior. It is especially important during divorce that children know that they are loved by both parents. Putting down the other parent is like putting down a part of your child since he or she is a part of that parent. Avoid disparaging remarks about the other parent even if you are angry.

4) How can I encourage independence and a feeling of competency in my child?

In general, children need a sense of their very own achievement. They need to handle some things on their own, to be given choices and to feel some sense of being trusted and capable. During the time of divorce, your child may become more vulnerable and regress to an earlier stage of development. Do not demean your child for this, but understand that he or she may need to feel more "like a little kid" than "Mommy's or Daddy's big boy or girl." If handled with compassion, this should be a temporary situation. If long-lasting, it may represent undue emotional stress.

Rather than expending all of your energy in to negative feelings about your ex-spouse, redirect that energy into ensuring that your children remain happy, healthy and well-adjusted despite the divorce. Remember, there is nothing in your divorce that is more important than your children.

NEWS AND EVENTS:

Laura Hess Nominated for the 2014 Women in Business Awards

Kring & Chung, LLP would like to congratulate Partner Laura Hess for being nominated for Orange County Business Journal's 2014 "Women in Business" award. The Orange County Business Journal ("OCBJ") recognizes women in Orange County for their career achievements and contributions to the community. Her professional achievements and dedication to the community have resulted in Ms. Hess being honored by the OCBJ in 2012 and 2014.

"Ms. Hess is a dedicated and passionate attorney who works tirelessly for her clients and yet still makes the time to give back to the community and care for her family," said Allyson Thompson, a colleague of Ms. Hess and Vice President of the Orange County Women Lawyers Association. Ms. Hess currently serves as President of the Orange County Women Lawyers Association, whose mission is the advancement of women in the legal community as well as providing charitable support and services to those less fortunate in Orange County.

The awards ceremony and luncheon will take place on Tuesday, June 17, 2014 from 12:00 p.m. to 2:00 p.m. at the Hotel Irvine Jamboree Center located at 17900 Jamboree Road, Irvine.

John Schroeder Featured in the CHP 11-99 2014 Annual Report

For over twenty years, John Schroeder of our Irvine office has served as a board member of the CHP 11-99 Foundation. He is currently serving as the Scholarship Committee Chairman and is featured in the CHP 11-99 2014 Annual Report. The scholarship committee provides direct grant support to worthy students. Those eligible to apply for the General Scholarship Program include dependents of uniformed and non-uniformed employees who are active or retired from the California Highway Patrol. The Fallen Hero Scholarship Program is for sons, daughters and spouses of Fallen Heroes. "There is no better feeling than to provide a helping hand to these hardworking students, " Schroeder said. A total of $1.6 million will be provided in scholarship grants in 2014.

Kring & Chung would like to thank Schroeder for all his time and dedication to the CHP 11-99 Foundation and to the community.

2014 California HR Conference - Anaheim Convention Center

Kyle Kring and Laura Hess will present "So You Received a Sexual Harassment Complaint, What Not to Do, a Trial Lawyer's Perspective," at the 2014 California HR Conference taking place at the Anaheim Convention Center August 25, 2014 through August 27, 2014.

The workshop will include discussions on failing to implement appropriate policies and procedures prior to the alleged incident, failing to perform mandatory sexual harassment training, conducting a timely investigation and documenting the investigation, retaliating against the victim and many other topics that will assist you when dealing with a sexual harassment complaint.

Our attorneys have represented employers in all aspects of employment law. They defend employers against claims for sexual harassment, wrongful termination, retaliation, disability and age discrimination, failure to accommodate whistleblower, gender discrimination, misclassification and unpaid wages.

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