Archives for July 2016

posted on July 27, 2016 by Brownstein & Nguyen

Benefits of an LLC vs. Sole Proprietorship

To be successful, entrepreneurs should familiarize themselves with various aspects of business and law. Contract basics, vicarious liability, and other areas of business law can make or break your business down the road. Before diving into a new venture, however, entrepreneurs must first consider which type of legal ownership structure best suits their business needs. Often, this means choosing between individual ownership and a limited liability company (LLC), partnership or other legal entity.

Sole Proprietorship v. LLC

A sole proprietorship is the simplest way to start a business. You simply make sure to have all necessary governmental licenses or permits, personally obtain any necessary financing, and get to work. All the assets and contracts of the business (such as leases) are placed in your personal name.

On the other hand, creating a limited liability company requires a little more effort. Forming an LLC begins by reserving a name with the Secretary of State’s office, creating and filing articles of organization, and paying a filing fee (typically several hundred dollars). LLCs with multiple members should seek qualified legal advice on drafting an operating agreement to protect all of the owners and the company in the future. LLCs must be sure to carefully maintain corporate records and not to co-mingle business and personal assets and finances in order to protect the owners from personal liability in the event someone contests their LLC status. LLCs must also file separate tax returns from owners. In most cases, however, the benefits of an LLC are worth the additional effort and expense.

Pros and Cons of a Sole Proprietorship

Many entrepreneurs choose to operate as a sole proprietorship for the ease of use and cost-effectiveness. For example:

Sole proprietorships do not require filing articles of organization with the state, payment of filing fees, or corporate documents such as operating agreements
Starting a sole proprietorship has fewer initial and ongoing costs and fees than an LLC
A sole proprietor may use personal funds and loans to raise capital for the business
Income taxes are filed and paid as part of the owner’s personal income tax returns
Business assets, contracts, licenses, etc. do not need to be transferred to another entity

However, a sole proprietorship leaves the business owner potentially responsible for all losses, debts, and legal liabilities of the business. Any of one of these risks, should it come to pass, is enough to doom an otherwise successful business. For example, a single lawsuit by a competing business or customer could result in a financially devastating judgment against the owner.

Benefits of Forming an LLC

While starting a business as a sole proprietorship may offer some initial benefits, forming an LLC gives business owners protection from individual liability, thereby substantially reducing the risk to both themselves and their businesses. For that reason, an LLC is typically the preferred method of starting of a business, whether it has one owner or multiple owners. Some reasons why include:

LLCs allow pass-through taxation on each member’s individual income tax returns
An LLC with multiple owners allows them to pool resources to raise capital, increase credit, and create financial leverage
An LLC limits the liability of each owner for legal claims arising out of contract disputes, personal injury claims, business torts and other litigation
An LLC may borrow against business assets more readily than individuals
With a well-written and thought out operating agreement, LLC owners can agree in advance on all aspects of ownership and operation of the business, reducing the risk to themselves and the business from future disputes

Jay D. Brownstein has over 25 years of experience advising business owners on corporate and contract matters, helping them to manage and avoid legal risks, and representing them in shareholder and partnership disputes and other business litigation. If you’re starting a new business and need help properly setting up an LLC, drafting partnership or other business agreements, or protecting your company in a business dispute, call Brownstein and Nguyen law offices for legal advice.

Businesswoman with Files

Filed Under: All Postings, Business Law, Featured, Uncategorized

posted on July 27, 2016 by Brownstein & Nguyen

Who Is Affected by the Supreme Court’s Ruling on Immigration Reform?

This June the Supreme Court reached a ruling on President Obama’s immigration plan. The Deferred Action for Parents of Americans (DAPA) executive order proposed a temporary reprieve from deportation for undocumented immigrants who have resided in the United States since 2010 and have a child who is a citizen or a lawful permanent resident. The executive order also expanded Deferred Action for Childhood Arrivals, broadening the scope of immigrant children eligible for relief. On June 23, 2016 the Supreme Court reached a 4-4 deadlock, effectively blocking Obama’s executive order by leaving in place a decision of the lower federal appeals court.

What the Supreme Court’s Decision Means for Immigrants

immigration reform rally The Supreme Court’s ruling affects as many as 5 million immigrants currently residing in the U.S. Undocumented immigrants whose legal status hung in the balance are now unable to seek relief from deportation. According to the Migration Policy Institute, 3.6 million people living in the U.S. are undocumented parents of underaged legal permanent residents or U.S. citizens. In all, approximately 10 million people, including legal immigrants, undocumented immigrants, and lawful citizens, live in households affected by the Supreme Court’s ruling. In addition to providing temporary relief from deportation for parents of lawful residents, the plan proposed expanded deferred action for undocumented immigrants who were brought to this country as children, but were not eligible for relief under a 2012 executive action. Immigrants protected by the 2012 action are not affected by the 2016 Supreme Court ruling.

Are You Affected by Obama’s Blocked Immigration Plan?

The proposed DAPA/DACA+ policy contained specific parameters for granting relief from deportation. To qualify for President Obama’s proposed DAPA plan, immigrants would have needed to:

Have a child born in the US before November 21, 2014
Have permanently resided in the US since January 1, 2010
Pay taxes (or be willing to pay taxes)
Have committed no significant crime or posed any threat to US National Security

To qualify for the DACA+, immigrants must have:

Been a child brought to the US illegally before January 1, 2010
Have resided in the US before their 16th birthdays
Been in school, have graduated or earned a GED, or have been honorably discharged from the military
Have committed no significant crime or posed any threat to US National Security

The President’s executive orders would have made it possible for qualifying immigrants to seek a reprieve from deportation, as well as legally authorizing undocumented immigrants to work as long as they paid taxes. The Supreme Court decision leaves the fate of millions of immigrants up in the air, with no clear legislative or executive plan to allow them to continue to stay in our country, contribute to our economy, and pay their fair share of taxes.

The attorneys of Brownstein & Nguyen law offices have decades of experience dealing with complicated immigration cases. For legal advice or assistance on immigration law in Atlanta, please contact our offices.

Immigration Rally

Filed Under: General News, Immigration, Immigration Law, Immigration Reform, Uncategorized

posted on July 3, 2016 by Brownstein & Nguyen

Immigration, Executive Orders, and the Supreme Court

The Supreme Court recently heard and decided the case of USA v Texas. This lawsuit was instituted by twenty six states, challenging the constitutionality of President Obama’s immigration executive actions, including the 2014 executive order creating DAPA (Deferred Action for Parents of Americans). This program provided deferred action from removal (or deportation) to law-abiding immigrants. About 4 million immigrant parents of children born in the United States would have qualified under the program, allowing them to remain in the U.S for up to 3 years.

President Obama vs. the Supreme Court

The primary question before the Supreme Court involved the extent of the president’s power to interpret and implement federal laws in a manner consistent with his own policy goals. Article II of the constitution obligates the president to ensure that laws are faithfully executed, a provision with its roots in the American Revolution. Another controversial issue raised by this case is the tradition of prosecutorial discretion, or the ability of the executive branch to determine whether to prosecute individuals who are accused of violating federal law. Could the executive branch rely on a traditional exercise of discretion in delaying deportation in the least crucial immigration cases?

Historic Precedence

The Obama administration relied upon the 1985 ruling in Heckler v. Chaney to support the constitutionality of DAPA. In that case, the Supreme Court found that the Food & Drug Administration could legally exercise discretion not to enforce a governing statute. However, the court further observed that the principal of prosecutorial discretion is not unlimited. For instance, this principal cannot be employed to justify a broad policy decision that would exclude an agency’s legal duties (e.g., the executive branch is not allowed to stop enforcing duly enacted federal drug policies). The Supreme Court therefore needed to decided in USA v. Texas whether Obama’s immigration policy was akin to a prosecutor refusing to press charges in certain cases, or whether it was a broad policy decision that abdicated the executive branch’s constitutional duty to faithfully execute the law.

Supreme Court Deadlock

Following the death of Justice Antonin Scalia, only 8 Justices of the Supreme Court heard the case of USA v. Texas. The court deadlocked on the constitutional questions before it, with a split vote of 4 to 4. Unfortunately, this amounts to a non-decision and leaves in place a lower appeals court ruling permanently blocking President Obama’s executive actions on immigration. As a result of the Supreme Court’s failure to affirmatively decide this important issue, millions of law-abiding residents who would have been eligible for relief under DAPA may one day face deportation despite having U.S. born children with lives here and who need their parents for support.

At the Atlanta attorney offices of Brownstein & Nguyen, we have decades of experience handling matters for thousands of clients in the complicated area of immigration law. If you, a family member or friend need help with legal immigration, contact our offices for a case evaluation.

Filed Under: All Postings, Immigration, Immigration Law, Immigration Reform

posted on July 3, 2016 by Brownstein & Nguyen

Pitfalls in the Citizenship Approval Process

Despite the seemingly straightforward steps listed on the U.S. Citizenship and Immigration Services (USCIS) website, acquiring U.S. citizenship is not a simple undertaking. For example the second step – “determine if you are eligible” – is deceptively complicated. While at first it appears to be a simple “yes” or “no” answer, within that question is an eligibility worksheet that lists 15 mandatory factors.

Residency Requirements

Generally, applicants seeking citizenship must have been a permanent resident for at least five years. This means that the applicant both (1) possesses a permanent residency card (green card) and (2) has lived in the U.S. for five years. Residency can be established in a variety of ways including mortgages, rental agreements, utility bills and other documents that substantiate residency.

The USCIS also examines how often applicants leave the country during their residency period. Applicants cannot live or travel outside of the United States for a cumulative total of 30 months or more. However, exceptions might apply if trips outside the U.S. are unavoidable, for example extended family visits for medical reasons. Additionally, within those 30 months no single trip can last longer than a year unless a specific exception in the law applies.

Tax Requirements

An additional requirement not included in the eligibility worksheet is being current on all U.S. tax obligations. all applicants must file tax returns and either (1) pay any overdue tax debts or (2) be in good standing in a repayment program.

The above are only a few of the many issues to look at when determining eligibility for citizenship. For more information about citizenship, check out our website here.

If you believe that you meet all the requirements for citizenship, that is not the end of the process. The USCIS can and does request supporting documentation to substantiate each eligibility factor. Tracking eligibility and maintaining documentation is critical for a smooth approval process. The immigration approval process is complicated and full of pitfalls. For example, if an LPR (lawful permanent resident) overstayed their visa, is ineligible for continued residence, or deemed removable from the United States for any one of myriad reasons, filing a citizenship petition can result in the USCIC placing the applicant into removal proceedings.

Seeking legal advice early in the process is one of the best ways to avoid problems, delays or denials of citizenship applications. For expert assistance with citizenship and other legal immigration needs, contact the immigration attorneys at Brownstein & Nguyen today.

Filed Under: All Postings, Immigration, Immigration Law