Agreeing on child custody and the visitation schedule for the children can be difficult for two parents who are no longer together, especially if the parents have different parenting styles and/or different notions of what is best for the children. When parents are unable to reach a custody agreement, it is the occasional practice of the courts to order a child custody evaluation. Absent a court order, parents may also elect this option.

What is a Child Custody Evaluation?

A child custody evaluation is, essentially, an investigation of the children’s home, home environment, family relationships, and other matters of the children’s lives. The goal of the investigation is to determine the best custody and visitation outcome for the children, and the results of the investigation are used to aid the court in making its custody and visitation decision.

What is the Process?

Once a … Read More »

The District of Columbia recently amended its D.C. Domestic Partnership Judicial Determination of Parentage Amendment Act (aka D.C. Parentage Act) to allow some non-D.C. residents additional adoption rights. The amendment, which took effect in March 2013, allows D.C. courts the power to grant an adoption to any child who is born in the District, even if the family does not reside in D.C.

The original D.C. Parentage Act, enacted in 2009, was the first law of its kind in the country. It allowed lesbian couples who were married, registered as domestic partners in D.C., or who signed a Consent to Parent, to adopt children born to the couple in the District. The Act conferred the status of parent on both partners in the couple, where one of the women gave birth to a child using donor insemination and the other woman consented to her … Read More »

You may have heard the term “DOMA” at some point in passing; you may have also heard “Prop 8” at some point in passing; you may be aware that there are two “gay marriage” cases before the Supreme Court; and you may be wondering how those much-awaited court decisions could affect Virginia’s same-sex marriage topography. So, what really is DOMA, what is Proposition 8, what are the Supreme Court cases about, and how will those court decisions impact Virginia?

The Two Same-Sex Marriage Cases Now Before the Supreme Court

U.S. v. Windsor. The first case before the Supreme Court with potentially large ramifications for same-sex marriage in Virginia is U.S. v. Windsor. The question for the Supreme Court in Windsor is the constitutionality of the federal “Defense of Marriage Act” (DOMA).

Enacted on September 21, 1996, DOMA is a federal law that restricts … Read More »

If you have reviewed follow our military divorce sections of our website and blog, you should be familiar with the basics of the division of military retired pay pursuant to a divorce in Virginia. In short:

Your disposable retired pay, meaning your gross military retired pay minus any deductions for disability, is divisible under both federal and state law.
Under Virginia law, your spouse can receive up to fifty percent of the “marital share” of your retired pay, the marital share being defined as the portion that was earned during the marriage before separation.
The Defense Finance and Accounting Service (“DFAS”) can pay your spouse his or her portion of your military retired pay directly where your marriage overlapped with 10 years or more of your military service.

What we have not discussed in detail is how you can structure your military retired pay … Read More »

NFL star and 2006 first overall draft pick Mario Williams has filed suit against his former fiancée seeking recovery of the 10.04 carat diamond engagement ring he gave her in February 2012. Williams claims that his ex, Erin Marzouki, never intended to marry him, and that she had promised to return the ring if the engagement ended. The two-time Pro Bowler brings this claim under the “conditional gift rule” – the idea that a gift is not truly given until something else happens.

The thinking here is that the engagement ring is given “on the condition” that the marriage occurs. If the parties marry, the gift is completed and the ring becomes the receiver’s separate property. If the parties don’t marry, at least in Texas, the court would look at the reasons why the marriage didn’t happen. In Virginia, however, the … Read More »

With Congress seemingly moving closer to passing comprehensive immigration reform, NPR recently ran a story on the lack of qualified immigration attorneys available to help the millions of immigrants who will need legal assistance under the new plan. In a previous post, I detailed some simple steps immigrants can take to prepare for immigration reform. In this post, I’ll talk more specifically about the need of immigrants for qualified and trustworthy legal counsel in applying for relief under the new legislation.

The NPR article highlights the problems many immigrants encounter in dealing with attorneys or non-attorneys who make grand promises with little to back them up. Hoping to make large profits, these individuals prey on the immigrant population. In the coming months, the possibility for fraud is higher than ever. Be wary of individuals who urge immigrants to hire them before reform even … Read More »

On April 23, 2013, the U.S. Supreme Court ruled in the case of Moncrieffe v. Holder. Adrian Moncrieffe is a Jamaican national who came to the United States at the age of 3. During a 2007 traffic stop, police found 1.3 grams of marijuana in Mr. Moncrieffe’s car. This is roughly the amount of 2-3 marijuana cigarettes. In his Georgia criminal case, Mr. Moncrieffe agreed to a plea for possession of marijuana with intent to distribute. He received no jail time and was placed on probation. As a result of this conviction, Mr. Moncrieffe was placed in immigration proceedings ultimately resulting in his deportation. The Board of Immigration Appeals agreed with the Immigration Judge and the 5th Circuit denied review. The Supreme Court, in a 7-2 decision, ruled that his marijuana charge was improperly classified as an aggravated felony under … Read More »

The most important role of a parent is in the instruction of a child so that he or she may enter adulthood as a well-adjusted and contributing member of society. One of the biggest frustrations of many parents is finding the appropriate method for disciplining a child. Does corporal punishment play a role in modern parenting? Is spanking legal in Virginia? If it is legal, are there clear boundaries in the law so that parents do not commit a crime in disciplining their children?

Corporal punishment is defined as “physical punishment” according to Dictionary.com, more specifically, “physical punishment, as spanking, inflicted on a child by an adult in authority.” Spanking is a legal form of discipline from a parent to a child. However, not all spankings are created equal. Parents who use physical punishment to discipline their children can sometimes be charged with assault … Read More »

A common question many parents ask during initial consultations with family lawyers is, “How can I change my child’s last name?” A parent may want to change a child’s last name in cases of divorce, re-marriage, or in situations of a non-involved parent. When looking to change a child’s last name, a parent must go through the Circuit Court of the county or city in which the child resides. A parent or guardian of the child can apply for the name change by submitting an Application for Change of Name of Minor to the Circuit Court. This form must be signed under oath in front of a notary.

If both parents are in agreement, then both would sign the application by filling out the joint application portion. One parent would then file the signed and notarized application, along with a copy … Read More »

If you are like most people, you want to minimize the costs of your divorce as much as possible. You’ve heard the stories about skyrocketing attorney fees and you intend to do everything in your power to avoid them. Plus, you and your spouse seem to be getting along and you think you’ll be able to come to an agreement on most or all of the marital issues. So you start browsing around online for a good template for a property settlement agreement or separation agreement. You can pick and choose the language you like and don’t like, and then you can add in provisions that seem like a good fit for you and your spouse. Sounds like a good plan, right? Think of all the legal fees you’ll save!

The problem with this approach, however, is that by cutting corners, … Read More »

If a guardian ad litem (GAL) is appointed by the court in your custody case in Virginia, what do you need to know? First of all, the GAL is an independent operator on behalf of the children’s best interests. They are like a “roving judge” in your case, empowered to interview parents, children, third parties, and to observe the home environment. They eventually report back to the judge at trial with their findings and recommendations.

Black’s Law Dictionary defines a GAL as “a guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.” Rule 8:6 of the Rules of the Supreme Court of Virginia describes the role of GALs as follows:

The role of counsel for a child is the representation of the child’s legitimate interests. When appointed for … Read More »

This is a guest post by board certified family law attorney Scott Morgan. He is the founder of the Morgan Law Firm which has offices in Houston, Austin, and Sugar Land.

Anyone who is going through or has gone through a divorce can tell you how important it is that you have a very good attorney. But what not many people will tell you is that regardless of how good an attorney you have your results will suffer if you and your attorney cannot work together effectively. Having practiced family law for nearly 20 years I have a few ideas of what it takes to effectively work with your divorce lawyer. Here are my five favorite tips to help your divorce lawyer do a good job on your case.

Tip #1 – Don’t Hide Things from Your Lawyer

Lying … Read More »

Going to court for the first time can be an intimidating experience. Whether you are facing criminal charges or find yourself in court in a divorce or custody case, remaining calm in court can really help you make your most effective case. We put together the infographic below to help you understand all the different parts of the courtroom, so you can feel at ease on your day in court. This infographic explains who people are, what they do, and where they sit. We’ve also included some interesting facts about courtrooms, and funny quotes from actual court cases.

Our experienced attorneys feel right at home in the courtroom– hopefully this information will allow you to also be at ease in front of the judge or jury.

Click the image to see a bigger version

If you enjoyed this infographic, or found it useful, feel free to use it on … Read More »

Many immigration applications require an applicant to demonstrate extreme hardship. In light of the recent decision by U.S. Citizenship and Immigration Services to allow hardship waiver processing in the U.S., this hardship determination is particularly important. Many immigrants and their loved ones often wonder, though, what is extreme hardship? Does my case rise to the level of “extreme”?

Before jumping into the relevant factors, it is helpful to consider who actually needs to suffer the extreme hardship in order to qualify. Here are some examples of the “qualifying relatives” for three common waivers:

Unlawful presence waiver – extreme hardship must be to a U.S. citizen or lawful permanent resident spouse or parent;
212(h) waiver for certain crimes – extreme hardship must be to a U.S. citizen or lawful permanent resident spouse, parent, son, or daughter; and
212(i) waiver for misrepresentation/fraud – extreme hardship must be to … Read More »

When you find yourself on the path to divorce, you quickly realize that it is a challenging process, both procedurally and emotionally. A divorce can become even more complicated if your spouse is incarcerated. Though the process may be somewhat different, the fact that your spouse is incarcerated does not prevent you from obtaining a divorce in Virginia.

In fact, incarceration is one of several fault grounds for divorce in Virginia. Virginia Code Section 20-91(A)(3) states that if one of the parties to a marriage has been convicted of a felony, and sentenced to confinement for more than one year, a divorce may be granted. However, you should be aware of some caveats to this ground for divorce. In order to proceed for divorce on this ground, your spouse’s conviction and sentencing must have occurred after the date of marriage and … Read More »

Mediation is an increasingly popular form of alternative dispute resolution, used by more and more divorcing couples in Virginia. But, how do you know when mediation is in your best interests?

The goal of mediation is to effectuate a settlement between two opposing parties through the presence of a neutral third party. The strategies employed by mediators vary greatly and the length of the process can range from a couple hours to a number of days. For example, some mediators prefer to work collectively with the parties and attorneys to come up with an efficient solution. Others prefer to work with each party individually and determine his or her most important interests, and then relay those interests to the other party in a less contentious manner. “Offers” may be exchanged back and forth.

Ultimately, the result achieved from mediation is not binding … Read More »

Have you ever felt that there is never a cop around when someone else is violating a traffic law, but the one time you go slightly above the speed limit or make a rolling stop through a stop sign, there’s sure to be an officer watching? An officer who just can’t wait to pull you over and write a ticket?

Traffic violations are often no respecter of persons. Many fine, upstanding, law-abiding citizens receive them. They are not generally a reflection on one’s moral quality. But it feels that way when we receive them, and we want to have a way to redeem ourselves to avoid the stain of that mark against our driving record. We don’t want the points, and we don’t want the insurance premium increase.

So instead of prepaying the offense, we take time from work or school, we … Read More »

On March 7, 2013 the President signed the reauthorization of the Violence Against Women Act (VAWA) into law. VAWA lapsed at the end of 2011 and had faced difficulties passing Congress due to some expansions in the areas of protections for Native American and LGTB victims of violence. This was the first time since the bill was originally passed in 1994 that Congress had allowed it to expire. While the act itself had not been renewed, Congress had continued to fund VAWA’s programs to keep them going. VAWA serves to protect and aid victims of domestic violence, rape, and human trafficking. It also provides special protections for immigrant victims of violence, specifically U visas and allowing for self-petitioning.

U Visas. U visas are for those who are not in lawful immigrant status but who are victims of serious crimes by U.S. citizens. … Read More »

For many people the first time they need the assistance of counsel is when there are issues in their relationship. An unfortunate consequence of relationships ending is sometimes domestic violence. In Virginia, persons who experience domestic violence or have a reasonable fear of domestic violence can seek civil protective orders and sometimes the alleged abuser can be criminally prosecuted. This overlap of civil protective orders and criminal charges has important consequences for how these cases are handled in Virginia.

There are three types of civil protective orders in Virginia: (1) emergency protective orders, (2) preliminary protective orders and (3) permanent protective orders.

An emergency protective order under Virginia Code Section 16.1-253.4 may prohibit the abuser from contacting the victim, entering the victim’s home or apartment (even if shared), or abusing the victim in the future. Typically, it is obtained through … Read More »

Virginia is an equitable distribution state, meaning that the court has the authority in your divorce suit to classify the property of the parties as separate, marital or hybrid, to distribute any jointly owned marital property between the parties, and to grant a monetary award to either party to ensure that the division of marital property is fair and equitable.

The law of equitable distribution is complex, and not every detail will be addressed in this blog post. The purpose of this post is instead to set forth a few simple principles to help you determine what property will be off-limits to your spouse in your divorce case. In other words, what do you get to keep? What is your sole, separate property not subject to equitable distribution?

Generally speaking, the following kinds of property will be classified as separate in Virginia:

Property … Read More »

When a couple has the misfortune of proceeding toward divorce, often the marital home is the most valuable property to address. There are many things to consider when navigating this process in Virginia, and here are a few of the most important questions that must be answered.

How is the home titled and who is listed on the mortgage?

This will help to determine the options that are available for you. For example, if both parties are listed on the mortgage, and if one wants to keep the home, he or she will need to qualify for a refinance to remove the other’s name and take on the debt in full. And if the home is jointly titled, the party relinquishing it will need to execute a quitclaim need, special warranty deed or general warranty deed for the other.

Is the home marital, … Read More »

What Happens at Civil “Term Day”

Stafford County is one of the busier jurisdictions in Northern Virginia, with a very active civil docket. On any given day, a Circuit Court Judge may hear a debtor-creditor action in the morning, a landlord-tenant dispute before lunch, and then spend the entire afternoon on a child custody case. The judges’ calendars are carefully monitored, allowing parties sufficient time to have their day in court. On the civil side, trials are scheduled on “Term Day.”

Stafford’s civil term is a period of three months, with new terms beginning on the first Monday in January, April, July and October. The first day of each term is commonly referred to as “Term Day.” At Term Day, any case that is “mature” (ready to be heard) may be placed on the docket to have a trial date set with … Read More »

If you are in the process of getting a divorce or fighting for custody of your children in Fairfax County, you may need information from the opposing party concerning his or her assets, living situation, sources of income, etc. This is where the discovery process comes in. The discovery process is an evidence-gathering opportunity for you to gain information that you would not otherwise have on your own. There are two types of discovery: (1) informal discovery, where parties and their attorneys voluntarily exchange documents and information, and (2) formal discovery, where litigants extract information from each other through written discovery requests, which carry deadlines for response and may be enforced by court action.

The discovery process may vary according to the court in which you file. In the Juvenile and Domestic Relations Court you must request permission from the court … Read More »

In Prince William County, petit larceny is anything but petty. Petit Larceny is a misdemeanor offense under Virginia Code Section 18.2-96. It is the wrongful taking from another person of less than $5, or of another person’s property with a value less than $200, without that owner’s permission with the intent to permanently deprive that owner of said property. In common terms, it can be referred to as petty theft or stealing. A close relative of this offense is “concealment,” more commonly known as shoplifting, under Virginia Code Section 18.2-103. The maximum punishments for both petit larceny and concealment or shoplifting are 12 months in jail and a $2,500 fine.

Petit Larceny and concealment are in the same misdemeanor class as DWI/DUI, simple assault and battery, and trespassing; however, theft crimes are treated much more harshly than those other crimes in … Read More »

The first step for most people in obtaining legal counsel for a divorce is to have an initial consultation with an attorney. Most consultations are scheduled for one-half to one full hour and most divorce lawyers in Northern Virginia do charge a consultation fee. The consultation is your opportunity to describe your situation to an attorney and receive an overview of the legal issues in your divorce, and perhaps a proposed course of action. It is also your opportunity to interview the lawyer in order to decide if they are the person to best represent you and your legal interests. Likewise, the consultation allows the attorney to determine if the case is one in which they can offer assistance.

To make the most of your divorce consultation, remember the following:

Seek assistance early. In many instances, there are deadlines for response … Read More »

Virginia law prohibits both the illegal possession of controlled substances and possession with the intent to distribute controlled substances. Both offenses are addressed under Virginia Code Section 18.2-248. For a breakdown of the penalty ranges associated with drug possession and distribution, see our website pages on possession and distribution, respectively. Conviction of possession with intent to distribute requires that the Commonwealth prove that an individual “intentionally and consciously possessed the controlled substance, either actually or constructively, with knowledge of its nature and character, together with the intent to distribute it.”

To prove intent to distribute, the Commonwealth has to introduce sufficient evidence showing that the substances at issue were intended for distribution and not just for the individual’s own personal use. Barring an admission by the defendant, how does the Commonwealth prove an individual’s intent with regard to the substances he or … Read More »

On February 20, 2013, the Supreme Court of the United States issued a much-awaited decision on the retroactivity of its March 2010 decision, Padilla v. Kentucky. As a reminder, under Padilla, the Court held that the Sixth Amendment requires a defense attorney to inform a non-citizen of the deportation risk of a guilty plea. In Chaidez v. United States, the Court held that Padilla is not retroactive. In other words, non-citizens cannot allege ineffective assistance of counsel for convictions finalized before the Padilla decision was issued in March 2010.

In my August 22, 2012 article Post Conviction Relief and Immigration Consequences, I summarized the then-current state of post-conviction relief in the U.S., focusing on Virginia in particular. Thousands of non-citizens found reason for hope after the Supreme Court issued its landmark Padilla decision. But then hope hung in the balance after … Read More »

If you are a green card holder with a U.S. citizen spouse who is employed abroad, you may qualify for a special expedited citizenship process. If your citizen spouse is employed abroad by the U.S. Government, an American business or one of certain organizations, you may be able to gain your citizenship through “expedited naturalization.” Typically, naturalization requires that a permanent resident both reside and be present in the U.S. a certain number of days before application. However, the expedited citizenship process waives these presence and residency requirements, allowing the green card holder to become a U.S. citizen much faster.

To qualify for this expedited naturalization process:

You must be a lawful permanent resident who is married to a U.S. citizen;
Your spouse must work for one of the following: the U.S. government; a specifically recognized American institution or public international organization; or an … Read More »

The Fairfax County Courthouse (called the “Jennings Judicial Center”) is the busiest courthouse in the Commonwealth. The Fairfax Circuit Court judges strive to ensure that the Circuit Court criminal and civil dockets run as smoothly and expeditiously as possible. As per the Constitution of the United States, persons charged with crimes are guaranteed the right to a speedy trial. This requires the Circuit Court to implement strict procedures to guarantee that the civil docket, including divorce cases, can proceed in a timely manner.

As discussed by Matthew Smith in Navigating The Fairfax County Courts, civil motions are heard on Fridays in Fairfax Circuit Court. One of the most common motions heard on Fridays are motions related to Pendente Lite Relief. A divorcing party can use a Motion for Pendente Lite Relief to seek a number of different remedies including, but not limited … Read More »

Suppose you live in Woodbridge or Manassas, and are a stay at home parent, a military spouse, or perhaps you work but just happen to make much less money than your spouse. Suddenly, your spouse declares that he or she wants a divorce. Your spouse wants to walk away from the marriage, the house, and the marital debts, to live on their own. But you cannot afford to pay the mortgage, your bills, or your debts all on your own. Once your spouse leaves, the creditors are at the door. The house is facing foreclosure. What do you do?

The short answer is: seek pendente lite (temporary) support from your spouse from the courts of Prince William County.

Please note: Prince William County, Manassas and Manassas Park all share a combined court system, so whether you are a resident of Woodbridge, Lake … Read More »

This has been an exciting week for immigration law in the United States. On Monday, a bipartisan group of senators revealed a comprehensive immigration reform plan. On Tuesday, President Obama largely endorsed the senators’ plan. In the next few months, lawmakers will undertake the difficult task of drafting, and then voting on, proposed legislation.

The plans proposed by the President and the bipartisan group of senators both contain one very important element: a path to citizenship for an estimated 11 million undocumented immigrants presently living in the U.S. These immigrants would obtain a “probationary” or “provisional” legal status followed by a green card and then U.S. citizenship.

Although several details must be ironed out, the immigration reform plan that Congress and the President are likely to enact should open up tremendous new opportunities for green cards and citizenship for millions of people who where … Read More »

If you have a hearing or trial scheduled in Fairfax County, the Fairfax County Courthouse (called the “Jennings Judicial Center”) may at first seem overwhelming. The busiest courthouse in the Commonwealth of Virginia sees approximately 20,000 people enter on a weekly basis, and the enormous, $120 million expansion, which was completed in 2008, only adds to the potential for intimidation.

When arriving, it’s important to note that the public parking garage is a 5-10 minute walk to the main entrance. Long lines will often develop at the security checkpoint that everyone must traverse, so be sure to arrive early. An information desk is available past the security area to provide further assistance.

For cases in family law, which is my area of practice, the Circuit Courtrooms are located on the fourth and fifth floors, and the Juvenile and Domestic Relations (JDR) Courtrooms … Read More »

“Rashness belongs to youth; prudence to old age.” – Marcus Tullius Cicero

As citizens, we often give allowance for a certain amount of misconduct by juveniles. We recall our own indiscretions, perhaps, or we just simply understand that maturity and experience often come after a failure or misstep. Virginia’s criminal justice system also provides for some latitude in giving juveniles an opportunity to learn from, and move past, mistakes or conduct that land them in front of a judge. One of the most common methods for achieving this, and perhaps the most misunderstood, is the automatic expungement of juvenile records pursuant to Virginia Code Section 16.1-306.

The common misconception about juvenile records is that they are always secret. This is untrue. Juvenile records are generally non-public, but a variety of exceptions provide for certain individuals or agencies to access juvenile records. Another … Read More »

The Uniformed Services Former Spouses’ Protection Act (USFSPA) recognizes the ability of state courts to distribute a portion of a servicemember’s military retirement to a former spouse. Notably, USFSPA specifies that the maximum amount that can be paid to a former spouse is fifty percent of a servicemember’s “disposable retired pay,” which does not include retired pay that he or she waives in order to receive VA disability pay. In Mansell v. Mansell, 490 U.S. 581 (1989), the U.S. Supreme Court affirmed this rule and held that state courts may not divide upon divorce the military retired pay that a servicemember waives in order to receive disability pay.

The exclusion of retired pay waived for disability pay from division by state courts created perceptions of inequity in divorce cases, particularly where a servicemember had a high VA disability rating and could waive … Read More »

As the traditional holidays are behind us, you may find yourself anxiously awaiting the upcoming H-1B season. H-1B visas provide a way for foreign nationals to live and work in the United States, for a temporary period, in a specialty occupation. Even in the current job market, these visas remain in high demand. This demand makes proper filing of an H-1B petition all the more important.

The term “H-1B filing season” stems from the limited supply of the visas vs. the overwhelming demand. The current cap on the number of H-1B visas that may be awarded each year is 65,000. Some visas are set aside from this allowance for treaties involving Chile and Singapore, bringing the total of available visas to 58,200. The first day that H-1B petitions are considered each year is April 1st, which marks the beginning of the … Read More »

A Kansas man is garnering national attention because he is being required to pay child support after donating sperm to a lesbian couple. The Kansas man, William Marotta, answered an online advertisement to donate sperm to a lesbian couple. In 2009 the couple and Mr. Marotta entered into an agreement in which he gave up his parental rights to the lesbian couple and was absolved of any financial responsibility.

After the birth of the child, the lesbian couple ended their relationship. The child received more than $6,000 in state benefits. As in Virginia, Kansas requires that the Department of Children and Families (or the Department of Social Services in Virginia) attempt to recuperate those expenses through biological parents.

The state of Kansas says that because Mr. Marotta did not work through a clinic or doctor, as the state law requires, he can … Read More »

Beginning in 2014, retired servicemembers eligible for Concurrent Retirement and Disability Pay (CRDP) will no longer have to waive any portion of their military retirement in order to receive VA disability compensation. The CRDP program, enacted in 2004, allowed military retirees with a VA disability rating of 50% of higher to receive both military retired pay and VA disability compensation at the same time. This has been commonly referred to as the “concurrent receipt” of disability pay and retired pay.

Before creation of the CRDP, military retirees were forbidden by law to receive both military retirement benefits and VA disability compensation. Parties seeking disability benefits were required to waive an equivalent portion of their military retired pay.

The CRDP program was structured to phase in the disability payments over a ten-year period. In 2013, eligible retirees will receive 99.96% of their disability pay … Read More »

2013 is poised to be a significant year for immigrants in the United States. From deferred action for young immigrants to new rules for extreme hardship waivers, and from new policies regarding prosecutorial discretion to the possibility of comprehensive immigration reform, this is a critical time for immigrants.

In this environment, good legal counsel will be essential to obtaining any immigration benefit. In that light, on Thursday, January 17, 2013, the immigration department at Livesay & Myers, P.C. will be hosting its first Open House of the year. Free, 30-minute consultations will be given between the hours of 9:30 – 5 p.m. at our Manassas office located at 9408 Grant Avenue, Suite 402, Manassas, 20110. Though walk-in appointments will be accommodated on a case-by-case basis, interested individuals are strongly encouraged to schedule an appointment in advance by calling 571-208-1267.

If you have a child and are contemplating a divorce or separation from your spouse or partner, it is essential that you educate yourself as to your rights and obligations under the law. For servicemembers, the choice of counsel can be difficult, as many attorneys handle military divorce cases very infrequently, if at all. In Part One of this series on military divorce, we addressed the grounds for divorce in Virginia, the benefits of separation agreements, how Virginia’s Courts equitably distribute marital property and debts, and spousal support. In Part Two, we address the issues surrounding child custody, visitation, and support as they apply to servicemembers in Virginia. This post will describe just a few of the essential facts and issues you should be aware of before embarking on such a case in Virginia.

I. Jurisdiction. When you first meet with your … Read More »

Beginning the divorce process is chaotic, emotional, and often times overwhelming. Many people believe that coming to an agreement as fast as possible is the best resolution. People research online and find phrases such as “Property Settlement Agreements” or “Marital Settlement Agreements” and conclude that such a document will solve their problems.

In trying to reach such an agreement, many people take it upon themselves to negotiate and sign documents without the assistance of counsel. For many reasons signing any agreement or contract without having an attorney review it is a poor decision. You know your life and marriage better than anyone else, but unless you are a family law attorney it is unlikely that you know the potential ramifications and pitfalls of signing a Property Settlement Agreement.

Here is an example to illustrate the power of a Property Settlement Agreement. Assume … Read More »

As the dust has now largely settled on the recent Presidential election, we can put voting aside until the next State or Federal election. Regardless of whether your particular candidate won, I think we can all acknowledge that voting in America remains a truly safe and democratic process that is simply not present in some countries.

Gaining the right to vote is one of the most prized features of becoming a naturalized U.S. citizen. I have watched many clients describe, with great fervor, their excitement over voting for the very first time as an American citizen. It’s a particular type of fervor that reminds me to never take such a privilege for granted.

On the other hand, non-citizens who, purposefully or inadvertently, vote or simply register to vote in State or Federal elections can land themselves in some very hot water. Not only … Read More »

The division of marital property (property acquired during the marriage that is not separate property) can be a major hurdle in the divorce process. Examples of marital property include retirement funds, automobiles, furniture, and most notably, the marital home. The marital home is often a point of special contention. Parties fight over the marital home because they attach sentimental value to it, because they want to maintain stability for their children, and/or because of other financial considerations. For example, a party may want to hold on to the home because its current value is not necessarily indicative of its future value (assuming, as is often the case today, a bad housing market).

In the unlikely situation that your contested divorce goes all the way to an equitable distribution trial, Virginia Code Section 20-107.3 requires that the court consider a variety of … Read More »

When someone rear-ends you at a stoplight and you end up with a broken leg, they (or their auto insurance carrier) pay your medical bills, plus a little extra for your pain, suffering and inconvenience. If your doctor commits medical malpractice in the course of your healthcare, you are compensated in a similar fashion. If you slip on a wet floor at the supermarket, again, the supermarket may have a duty to make things right.

But what about a cheating spouse? Does the law compensate for a broken heart in the same way as a broken leg? Do Virginia courts require your wandering spouse to “make things right” in hard, monetary terms? Will a judge sway a divorce settlement in your favor since you are, after all, the wronged spouse?

Not exactly.

In stark, unforgiving terms, your spouse’s infidelity does not require him … Read More »

Immigration reform chatter began shortly after the Republican defeat in the recent Presidential election. While most wondered if the new call for reform would die down, talk has led to the House passage of a new immigration reform bill on November 30. Talk of immigration reform is bringing new hope to the estimated eleven to twelve million immigrants currently in the United States without legal status. The election caused the Republican Party to realize it needs a more positive policy stance toward immigrants in order to stay viable in future elections. As a result, immigration reform has become a priority among the Republican Party. Immigration reform only became a partisan divide within the past few years but the new shift caused a great push toward reform legislation. The big question has now changed from whether or not immigration reform will … Read More »

Is it possible for a parent to kidnap his or her own kid? People in general seem to understand that kidnapping or childnapping involves the “taking” of a child. However, the underlying presumption many make is that the “taking” is of someone else’s child. How could it ever be illegal for a parent to take custody of their own child?

Virginia law is clear: anyone, even parents, can be convicted of kidnapping their children. However, the consequences are much worse if the child is removed from the Commonwealth of Virginia.

Virginia Code Section 18.2-47 states that any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution … Read More »

In any separation, divorce or custody dispute, a party might seek financial support. It may be a request for spousal support to get back on their feet. It may be a request for child support. Whatever the type of family support sought, there are two basic strategies for resolving the dispute: negotiating an agreement or litigating a case through the courts. If one party is a military servicemember, however, there may be alternate methods available to settle these issues.

Each service branch has regulations requiring servicemembers to support their families in the event of a separation. The service branch involved can have a great deal of impact when deciding to pursue support through the servicemember’s command. Some branches, like the Army, issue very specific regulations, spelling out the exact dollar amount they will provide, the length of time it will be … Read More »

What is the concealed weapon law in Virginia all about, and what are the requirements for a concealed carry permit? What does it mean to conceal a weapon anyway?

For the answer to those questions, one must start with the Virginia concealed weapon statute, which is Virginia Code Section 18.2-308. It is one of the longer criminal statutes on the books, so I will not go into every detail here, but you may read through the entire section for yourself online. Section 18.2-308 makes the following kinds of weapons unlawful for a person to carry concealed, subject to a variety of exceptions:

(i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material; (ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, … Read More »

Many clients come to me expecting the worst from their spouses during the divorce process. They talk about how their husbands or wives will never settle, how they’re out for blood, and how they’ll stop at nothing to make the process as miserable as possible for everyone involved.

As a result of this fear, whether founded or not, many people want to begin their divorce case by taking overly aggressive and unnecessary actions that tend to diminish the possibility of settlement. I think part of an attorney’s job is to dissuade clients from embarking down that road unless it’s necessary to do so.

That’s not to say that anyone should roll over. There are clearly cases where the parties are playing a zero-sum game, and there are certainly parties to a divorce (and even family lawyers, unfortunately) who have no interest in … Read More »

Are you a servicemember who is contemplating a divorce or separation from your spouse? For most servicemembers, the failure of a marriage is one of the most stressful experiences of their lives. However, divorce does not have to be difficult, and your chances of working out an amicable separation agreement are greatly increased if you are served by competent legal counsel and educated as to the applicable law of divorce and separation in your state of residence. If you are a servicemember and live in Virginia, here is what you need to know before you begin.

I. Divorce Grounds. There are two different types of divorce in Virginia. The first, a divorce a mensa et thoro (from bed and board) does not entirely dissolve the marriage, but establishes that a husband and wife are legally separated from one another. Bed and board … Read More »

One of the most frequently asked questions of Virginia family law attorneys is how a parent’s parental rights can be terminated. Often times a custodial parent wants to terminate the rights of the noncustodial parent because (s)he is not paying support, has not seen the child in years, and or is not a positive influence in the child’s life. Other times the noncustodial parent wants to terminate their own parental rights in an effort to avoid paying child support. Termination of parental rights is extremely serious. If a parent’s rights are terminated (s)he no longer has any parental responsibility, including financial, and can at no point in the future legally ask to be involved in the child’s life.

In Virginia, the parental rights of one parent can be terminated only if there is a third party, such as a step-parent, willing to … Read More »

If you believe your spouse is engaging in an extramarital sexual relationship, you are probably considering filing for divorce on the ground of adultery. Adultery is not only a ground for divorce in Virginia, but it is also a class four misdemeanor under Virginia Code § 18.2-365. While asserting the ground of adultery may seem like the most straightforward and beneficial path for your divorce suit, you should be aware from the outset of certain obstacles, and be prepared to carefully weigh the pros and cons of filing on this ground.

Let’s start with the pros. Filing for divorce on the ground of adultery may be personally cathartic for you. In so filing, you are definitively stating that your spouse has behaved badly in your marriage. Furthermore, you are forcing your spouse to defend his or her behavior, and you may … Read More »

If your spouse was a reckless spender during your marriage, and you thought divorce would finally end the financial pillage of your hard-earned dollars and the unspeakable terrorizing of your credit score—think again. Effective July 2011, all debt incurred by either party after the date of marriage and before the date of separation is presumed to be marital. But, you protest, she signed up for that Macy’s card alone and I haven’t seen one thing in the house from Macy’s! According to the amended Virginia Code Section 20-107.3(A), if you believe a debt incurred during the marriage is separate, you have to prove it, regardless of whose name was on the account.

It was not always this way. In April 2010, in the case of Gilliam v. McGrady, the Virginia Supreme Court stated that debts jointly incurred during the marriage are … Read More »

The Zombie Apocalypse. We know its coming. We just don’t know if we can stop it. Fictionalized accounts of the Zombie Apocalypse have been presented in TV shows like The Walking Dead, movies like 28 Days Later, Night of the Living Dead, or my personal favorite, Shaun of the Dead. When the Zombie Apocalypse actually arrives, the reality will be much different. This is not a blog about how to prepare for the Zombie Apocalypse. For that, simply go through the Center for Disease Control’s web page dedicated to Zombie Preparedness. 

The truth is, when the zombies begin to attack, we will still have a government. We will have police, courts, judges and juries. There will still be the rule of law—for a while, at least. So the question is, what legal ramifications exist for the average Virginia resident who fights … Read More »

Survivor Benefit Plan (SBP) coverage is a benefit commonly awarded to former spouses in military divorce cases in Virginia, particularly where the spouse will be receiving a significant share of the servicemember’s military retired pay.

Survivor Benefit Plan – The Basics

What is SBP? SBP is an annuity plan that, after the death of a retired servicemember, pays a monthly sum to a beneficiary designated by the servicemember. SBP payments begin at the death of the retired servicemember, when the servicemember’s retired pay would normally cease. SBP coverage therefore permits a servicemember to continue to provide income to a named beneficiary upon the servicemember’s death. SBP coverage is analogous to life insurance in that it provides servicemembers security that their dependents will be cared for when they are gone.

The Defense Finance and Accounting Services (DFAS) automatically deducts the monthly premiums for SBP coverage … Read More »

The naturalization of a newly-minted U.S. Citizen is cause for much celebration. The road to naturalization, however, can be fraught with problems, some of which can even result in revocation of one’s underlying green card status. Below, I have highlighted three areas that all applicants should carefully consider.

Filing Date

If you obtained a green card through marriage to a U.S. Citizen, to be eligible for naturalization you must have been a Lawful Permanent Resident for at least 3 years. You must also reside with your spouse in a bona fide marital relationship during that time, and that spouse must have been a U.S. Citizen during that time as well. The naturalization form can be submitted after 2 years, 9 months.

In all other cases, to be eligible for naturalization you must have been a Lawful Permanent Resident for at least 5 years. … Read More »

A while back I wrote a blog piece about establishing a date of separation in your divorce process, and why it’s so important once you have made the decision to move on. Let’s take things a step further. Now that you are in the process of separating, what do you need to know to protect your interests and prepare for the road ahead?

First of all, assess the character and personality of your spouse. How will he or she react to the separation? Is there a chance of spiteful financial retribution? Is there a fear of negligent financial mismanagement? You’ll want to look at how many joint financial accounts (checking, savings, money market, etc.) and joint credit cards are currently open, and consider separating those assets and debts to limit your liability. Many people have fallen victim to a post-separation “race … Read More »

Are you a father who is going through a custody or visitation dispute in Virginia? At Livesay & Myers, we have seen many good, active fathers come to us after making devastating mistakes in their custody disputes. We have seen men who, misunderstanding the law or relying on incorrect legal advice, have let themselves be bullied into signing unfavorable settlement agreements or have handled themselves badly in court. Don’t repeat their mistakes! Instead, abide by the following list of do’s and don’ts to protect your parental rights.

1. Do understand how Virginia courts decide custody and visitation cases. In determining custody and visitation, Virginia courts are directed by law to give primary consideration to the child’s best interests, and the specific factors a court should consider in making this determination are set forth in Virginia Code § 20-124.3. Moreover, Virginia Code … Read More »

More than a thousand Virginia families are close to receiving their share of a million dollar settlement. The lawsuit, brought by the Virginia Division of Child Support Enforcement (DCSE), is a result of improper actions taken by the Texas-based company Supportkids Inc. in collecting child support payments.

As reported in the Richmond Times-Dispatch and other news outlets:

The lawsuit, filed in 2008, claimed Supportkids illegally used misleading “withholding orders” that appeared to be government-issued to get child support payments withheld from noncustodial parents’ paychecks. The company allegedly extracted fees often exceeding 35 percent.

“They were getting the custodial parent to assign child support payments to the company, and that’s not legal or enforceable in Virginia,” [Thomas M. Wolf, a private attorney who represented Virginia in the case against Supportkids] said. “Child support belongs to the child, not the custodial parent, so … Read More »

There’s a great scene in the movie “My Cousin Vinny” where attorney Vinny Gambini carries in a box of files after meeting with the district attorney, proud that he had convinced the D.A. to turn over his case file. Vinny’s fiancée, Lisa, informs him that he was entitled to the files all along, stating “he has to show you everything.”

When I represent someone accused of a crime, regardless of whether it is a felony or a misdemeanor, a robbery or running a red light, I am generally asked whether the prosecutor has shown me everything in the file. In Virginia criminal cases this process is called discovery, roughly defined in Barron’s Law Dictionary as the “pretrial procedure by which one party gains information held by another party; the disclosure by a party of facts, deeds, documents, and other such things,” … Read More »

You and your spouse were married in Hawaii. You resided as a married couple in Virginia for many years. Discord arose and now you have been separated for over a year. One month ago, your soon-to-be ex moved to sunny Southern California, while you remained in Virginia. You are ready to move on and want to begin divorce proceedings, where do you file?

Determining where to file your divorce is a question of jurisdiction. A court must have jurisdiction over your case before it can grant your divorce, and each state has specific requirements for jurisdiction. In order to file in Virginia, at least one of the parties must meet the residency requirements of Virginia Code Section 20-97. That section states in part that “no suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties … Read More »

While many states recognize same-sex marriage and partnerships, these relationships have not been considered in the context of U.S. immigration laws. The Defense of Marriage Act (DOMA), passed in 1996, has prevented any Federal recognition of same-sex marriages for immigration purposes. DOMA defines marriage as an institution specifically between a man and a woman. This prevents many immigrants from obtaining benefits through their same-sex spouses which would otherwise be available if they were married to members of the opposite sex. For years, many have fought to prevent same-sex marriage families from being separated due to the immigration system’s failure to recognize their relationships. A recent announcement by U.S. Immigration and Customs Enforcement (ICE) regarding prosecutorial discretion has given those people reason to celebrate.

By a written memorandum on June 17, 2011, ICE Director John Morton set forth the ICE policy on the exercise of … Read More »

The Virginia Court of Appeals has taken a major step in redefining cohabitation “in a relationship analogous to a marriage” under Virginia Code 20-109(A). 

Virginia Code 20-109(A) provides for termination of spousal support “upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” That Code provision directs courts to terminate spousal support “unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.” 

Clients frequently ask what “cohabiting with another person in a relationship analogous to a marriage” means, and how to either avoid such a situation or prove that one exists. Virginia Code 20-109(A) does not provide a definition, so attorneys are left answering … Read More »

When potential clients come in to meet with me, they’re often experiencing a crisis in their lives unlike any other. Many people have expectations about the legal system and their lawyer’s role in healing the wounds of their divorce or custody dispute.

So what can the divorce or custody process do for you and what can’t it do? As you get started, where should your focus be?

Let’s begin with what the judicial process generally can’t do. Unfortunately, if you have been suffering through a difficult time, the legal process will never make you whole again. The judge won’t declare your husband to be a bad person or force a public apology from him. Typically, you will not get the opportunity to convince the judge and your wife’s attorney that you are in a morally superior position. We can’t force your husband … Read More »

Green cards obtained through marriage to a U.S. citizen are a popular way to achieve permanent residency status in the United States. But what happens when the non-citizen spouse in the relationship did not enter the country lawfully? Is there any hope for star-crossed lovers in this situation?

Rumors abound on what, exactly, can and cannot be done for a non-citizen spouse. Any spouse who wants to obtain a green card and has been unlawfully present in the U.S. for over 6 months but less than 1 year is subject to a 3-year bar from the U.S. before they can return with proper documentation. For those who spent more than 1 year out of status, the punishment is an even steeper 10-year bar.

Let’s look at a simple example. Tony, a native of Guatemala, enters the U.S. in 2003 without a visa. … Read More »

In Parts One and Two of this series, we looked at the requirements a former spouse must meet to retain medical coverage through the Tricare program. A 20/20/20 spouse would be eligible for lifetime coverage under Tricare (in addition to other benefits), while a 20/20/15 spouse would be eligible for transitional Tricare coverage for one year. Former spouses who do not qualify as at least 20/20/15 spouses are not eligible for Tricare coverage at all, but they are not left without options.

The Continued Health Care Benefit Program (CHCBP), enacted in 10 U.S.C. 1078a, is available for former spouses who cannot qualify for Tricare coverage under the 20/20/20 or 20/20/15 Rules. The CHCBP offers a COBRA-style program that allows any former spouses who were covered under Tricare on the day before entry of a final divorce decree to pay for continued medical … Read More »

There is an ongoing debate in Virginia as to whether a parent’s mental health records should be admissible in custody and visitation cases. Prior to July 2008, Virginia Code Section 20-124.3:1 specifically provided that the mental health care records concerning a parent in a custody and visitation case are confidential. In 2008, that provision was repealed, and we are now in a period in which a parent will routinely allege that the other parent is practically insane and therefore an unfit parent, and will attempt to prove it by the introduction of what were once confidential medical records.  

The question of the admissibility of a parent’s mental health care records features a tug-of-war between a person’s right to confidentiality and the court’s duty to act in the best interest of the child. The question is complicated by Virginia Code Section 8.01-399, which acknowledges … Read More »

In Part One of this series, we looked at the 20/20/20 Rule and the requirements a former spouse must meet to retain full military benefits and privileges upon divorce from a servicemember. In the event a former spouse cannot qualify under the 20/20/20 Rule, he or she may still be eligible to retain a portion of their military benefits as they transition from being a military spouse to a former spouse. 

To qualify for transitional military benefits, a former spouse must satisfy the requirements of 10 U.S.C. § 1072(2)(G), more commonly referred to as the “20/20/15 Rule.” The 20/20/15 rule requires the former spouse to show three things: first, that the servicemember put in at least 20 years of creditable service; second, that the parties’ marriage lasted at least 20 years; and third, that the period of the marriage overlapped the period … Read More »

“Give me your tired, your poor, your huddled masses yearning to breathe free…” These words rest at the bottom of the Statute of Liberty to welcome those seeking opportunities and freedom. This sonnet speaks of a country founded by immigrants who sought freedoms they were unable to find in their home countries. Two hundred years later, this country which once had an open door policy, can now be harder to get into than the latest celebrity chef’s restaurant.

Recent court decisions have made it more difficult for those seeking a safe harbor in the United States, referred to as asylum relief. Asylum relief represents the idea that an immigrant can come to our country to pursue a life free from the persecution for their religion, race, or views which they are suffering in their home country. Many people come to the … Read More »

Most spouses of active duty servicemembers contribute greatly to the marriage. They stay behind and take care of the children when the Marine, Sailor, Airman, Soldier or Coast Guardsman is deployed. They support the member through advancement in rank. They uproot their lives every few years as the family moves from duty station to duty station.

The select few members that make a career out of their service are rewarded with monthly retired pay for the rest of their lives and additional benefits as retired servicemembers. Should the marriage continue, the spouse (and family) will share in those benefits. If the marriage ends, however, what – if anything – will the member’s former spouse receive? This is the first in a series of posts that will take a closer look at the benefits available to former spouses of servicemembers.

Some former spouses will be … Read More »

You love fantasy football. You play in five leagues, and are reigning champion in three of them. You drafted Jimmy Graham in the 12th round last year. You know that Daniel Radcliffe is wrong and that Matthew Berry is the real weasel on the Fantasy Focus podcast. You love fantasy football.

But you don’t just play for fun. You “keep things interesting” by having some serious jelly beans on the line. This year, winning doesn’t just mean another 10” Lombardi trophy on your mantle. If you win, you’re $5,000 richer.

You’re also in the middle of a child support battle with your ex-wife. If you take home that title, will it change your child support?

In Virginia, the answer is yes. Virginia Code Section 20-108.2 sets out Virginia’s guidelines for determining child support. The guidelines use a mathematical formula that considers among other … Read More »

Celebrity entertainment outlets often cover the legal skirmishes of Hollywood’s rich and famous. In addition to their entertainment value, these stories occasionally illustrate lessons applicable to daily life. Recently, an article on People.com detailed the protracted custody battle between actress Kelly Rutherford and her ex-husband, Daniel Giersch. The article alleges that over the course of their three-year case, Ms. Rutherford failed to notify Mr. Giersch of the birth of their daughter and accused him in court documents of dealing drugs and weapons internationally.

However, her allegations may have backfired on Ms. Rutherford, as they apparently led to the revocation of Mr. Giersch’s visa, which ultimately caused the court to decide that it was in the children’s best interest to remain in Monaco, where both parents could have regular contact with them. This was understandably upsetting to Ms. Rutherford, as she is a cast member … Read More »

A recent South Carolina Supreme Court decision has garnered national attention. The story line is straight out of a movie and the stuff of nightmares. A married couple, eager to adopt, enlists the assistance of an adoption agency to expand their family. The Adoptive Mother has a Master’s Degree and a Ph.D., and the Adoptive Father is an automotive body technician with Boeing. They live a simple life in Charleston, South Carolina, and want to adopt a child to expand their family from two to three. The Adoptive Parents are connected with the Birth Mother through the agency. Birth Mother selects the Adoptive Parents deciding that they can give her daughter a stable upbringing, something Birth Mother lovingly acknowledges she can not do.

Birth Mother and the Birth Father had a relationship which resulted in an engagement. Father was active duty … Read More »

As a criminal defense lawyer, I commonly confront individuals charged with assault and battery who feel that they were the real victims of the altercation. In some cases there is evidence to support their claim: for example, they may have been the one to call police, may have looked to be in worse shape after the fight, or the other person may have unquestionably instigated the altercation. What each of these stories share is a common belief from each accused that they are the true victims of the crime. That they were acting in self-defense.

So what, exactly, is self-defense? To answer that, we must first understand what constitutes assault and battery. We explained what constitutes an assault previously on this Blog, in There Is Nothing Simple About “Simple Assault”! As explained in that article, an assault under Virginia law is either “an … Read More »

Marital Settlement or Property Settlement Agreements are contracts which can settle by agreement all of the rights, interests, and obligations of separating or divorcing parties, and can also resolve all claims or demands each might have against the other. A Settlement Agreement lays the foundation for a couple to proceed with an uncontested divorce. And, where the parties have no minor children, an executed Settlement Agreement shortens the separation period necessary before filing for divorce in Virginia from 12 months to only 6 months.

The typical Property Settlement Agreement covers division of assets, division of debts, and spousal support, as well as child custody, visitation and child support, if applicable. Full and comprehensive agreements can remove the need for expensive and time-consuming litigation. Settlement Agreements also afford the parties greater control over the results of the termination of their marriage, instead … Read More »

Many family law cases, whether resolved through court order or a separation agreement, include payments from one party to the other. Typically these are separated out into different actions – spousal support, child support, dividing bank accounts, or even paying the other party’s expenses. What you transfer to your spouse, or receive from your spouse, can make a huge difference when it comes to your annual income taxes.

The Internal Revenue Service (IRS) rule addressing this situation is on the surface quite clear. In Publication 504, the IRS states that alimony payments are deductible from income by the person paying alimony, and must be included as income by the spouse receiving the alimony payments. Looking up alimony in the dictionary will tell you that alimony is the same thing as spousal support, but unfortunately it is not that easy. The IRS … Read More »

Let’s say you’ve just lost your job.

This is not a far-fetched idea for most people. In the past four years, the United States has gone through the longest period with so many unemployed for so long since the Great Depression.

Let’s say you were earning $140,000 a year as a consultant before being let go. You lived comfortably with your family in an affluent neighborhood in an excellent school district.

Let’s also say that now you’re in the process of a divorce from your wife of 15 years. You have two young children and she’s always been their primary caretaker. She has two years of post-high school education, and worked as a salesperson at the local mall until you had kids together. Then she became a stay-at-home mother, and it was agreed that you would be the sole breadwinner until the children … Read More »

Over the years, I have met with scores of non-citizens who entered into criminal plea agreements without being aware of potential immigration consequences. Whether old or recent, a criminal conviction can have devastating effects on one’s immigration status. While consequences such as probation or incarceration may be expected, a non-citizen can sometimes be confronted with a more dire consequence – deportation.

Post-conviction relief (PCR) refers to reopening criminal convictions in the hopes of vacating a conviction or modifying a sentence so as to avoid unintended immigration consequences. Up until a few years ago, the rules governing PCR were murky in the nation as a whole and in Virginia specifically.

Then, in mid-2009, I was able to convince an Alexandria Circuit Court Judge to reduce my client’s 1997 petit larceny conviction from 12 months to 360 days because of ineffective assistance of counsel … Read More »

Contrary to what many might believe, the Fifth Amendment was enacted to protect the innocent as much as, if not more than, the “guilty.” As a criminal defense attorney, I can assure you most people take their Fifth Amendment privileges for granted. But even those with the intestinal fortitude and good sense to realize they have a slim chance of talking their way out of the interrogation room may sabotage their own case when seated comfortably in the safety and security of their homes.

Most people are not as ferocious, argumentative, arrogant, insensitive, or self-absorbed as their Facebook persona may make them out to be. Most people would not dream of saying to another human being face-to-face what they might casually post online. And most people do not consider how a post, message, picture, or tweet would be viewed by a total … Read More »

For the past few years, you have helped raise your ten-year-old grandson. Since you have taken this active role in your grandson’s life, he has thrived. Recently, your requests for visitation with your grandson have gone ignored, and you have concern as to how your detachment from your grandson will affect him. What legal avenue could you possibly take that would lead back to you being able to spend time with your grandson?

One option available to grandparents is to file a petition for visitation with the court. Although Virginia has made it clear that the courts are to consider the parent-child relationship primary and to not interfere with a parent’s right to raise a child as the parent sees fit, whenever the state has a compelling interest, such as the protection of the welfare of the child, the court may … Read More »

As reported by multiple news outlets, the four-year relationship between Robert Pattinson and Kristen Stewart (co-stars of the popular “Twilight” film series) is coming to an end. The most recent ripple effect of this break-up is the ensuing pet custody battle over their rescued dog, Bear. The New York Daily News reports that Pattinson wants Bear all to himself, while Stewart is seeking “joint custody” of their pet.

Pets are an integral part of many family units, and pet custody cases are on the rise across the nation. However, as I previously explained on this blog, Virginia law still treats pets as “mere property” to be divided in divorce cases. A Virginia court could no more order joint custody of a dog or a cat than it could order joint custody of a plasma television, a kitchen table, or an eggplant … Read More »

With the integration of social media into the everyday personal lives of so many, it’s no wonder that Facebook was cited in 20 percent of divorce cases filed in 2010. That number has only continued to rise. While Facebook can be a powerful tool for proving your case in court, you should steer clear of certain evidentiary pitfalls.

All things considered, logging on to your spouse’s Facebook account using their email address and password is not a good way to gather evidence. Even when using a shared home computer, you run the risk of having your spouse’s attorney object to the evidence because of how it was obtained, or even having criminal charges filed against you. Simply put: logging in to your spouse’s Facebook account might get you trouble, and probably won’t result in evidence that the court will actually consider.

However, there … Read More »

Sharing the responsibility of raising a child with a person with whom you no longer share a relationship is never easy. Every situation varies, but at some point most parents forget how important it is to be able to communicate, and then (hopefully) quickly realize that not communicating is simply not an option. But learning how to communicate in child custody and visitation situations is a process and a journey, with pitfalls and setbacks along the way.

When Prineville, Oregon resident Lynn White divorced her husband with whom she shared two children, she knew that communicating would be tough but necessary. She was so invested in the idea that she created an online custody management program to help. Her custody program, called “Divaroo,” allows parents to upload report cards and homework into a shared documents folder and to review a shared calendar … Read More »

The so-called “10/10 Rule” (or 10-Year Rule) is a source of confusion for many individuals when dealing with a military divorce. Some believe it requires a couple to be married for 10 years before a spouse has a right to any portion of a servicemember’s military retirement. Others believe it requires the parties be married for ten years during active duty service before a spouse is entitled to any portion of military retirement. Still others believe that service must be for 10 consecutive years of service while married before a spouse earns a right to receive a division of military retired pay.

It may surprise you to learn that each of these beliefs is wrong.

The 10/10 Rule has nothing to do with a state court’s authority to treat military retired pay as a marital asset to be divided upon divorce. Even … Read More »

Many parents say the moment that they learned they were going to be parent is pure joy and unforgettable. But those men who are not married, and sometimes men who are married, can wonder about the certainty of paternity and what would happen if they are not the father.

The Iowa Supreme Court recently issued an interesting ruling related to this issue. Like Virginia, Iowa has a firm rule that a father who is court-ordered to pay child support cannot recoup monies paid if it is later learned that he is not the biological father. But the Iowa Supreme Court ruled that a father who provides support without a court order then later learns the child is not his can sue civilly for monies paid, under the theory of fraud.

The point remains, however, that if you are a man who finds that … Read More »

Disabled veteran Peter Barclay has petitioned the U.S. Supreme Court to consider whether a veteran’s disability pay should be included as income for spousal support purposes. The Oregon District Court that entered the divorce between Barclay and his wife in 2010 ordered Barclay to pay $1,000 per month in spousal support based on his income received from his VA benefits and Social Security Disability Insurance. Barclay appealed this matter through Oregon’s state courts, and the Oregon Supreme Court upheld the trial court’s decision.

The case raises issues under Title 38 of the United States Code, which deals with Veterans’ benefits. Section 5301 of Title 38 makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure.” What this Section does not clearly state, however, is whether disability benefits are also immune from inclusion in a veteran’s income for … Read More »

On May 29, 2012, a California court found Dennis Rodman, best known for his basketball career and outlandish antics, guilty on four counts of contempt for not paying previously court-ordered spousal and child support. The judge ordered Rodman to 104 hours of community service and probation. Reading about such a light sentence for a flagrant violator of court-ordered support might discourage a parent from filing a court action, or may give false comfort to a parent who is failing to pay court-ordered support. Whichever side of the case you are on, you should realize that such a community service sentence is not a punishment to be expected in Virginia courts.

The state legislature and courts across Virginia are firm in the belief that child support is for the benefit of the child, and judges do not take kindly to parents violating, through … Read More »

The Virginia legislature enacted a number of bills related to adoption which went into effect on July 1, 2012. Many of these bills clarify and make easier various points of the adoption process. One bill in particular, HB 451, could have serious implications in a number of parental placement adoptions, close family adoptions, and stepparent adoptions.

HB 451 amended Virginia Code 63.2-1203 to include a requirement that a parent who does not consent to the adoption of the child, but whose consent to the adoption is required under Virginia Code 63.2-1202, shall be given notice of his/her right to counsel and if determined indigent shall be appointed counsel.

When adoptions are executed, one or both of the biological parents’ rights are terminated. The United States Supreme Court has stated that a parent has a constitutional right to the care, custody, and control of … Read More »

“What’s mine is mine and what’s yours is mine.” We have all made that joke at one time or another. Much of the time, we don’t mean it when we say it; and certainly, almost 100% of the time, the person we’re saying it to does not think we mean it. However, in the law, this old adage can prove true, but not in the way you might initially think, and it could have an impact on you in a variety of areas of law.

Imagine that your spouse is the victim of a head-on motor vehicle accident. The other driver is to blame. Your spouse is transported by EMS to the nearest hospital’s emergency department and treated for serious injuries. Your spouse is discharged after two days and expected to make a full recovery thanks to the swift work of … Read More »

We’ve all seen the Lifetime movies. A child is adopted into a loving family and then months or years later a biological parent wants the child back. Then a long and dramatic court battle ensues. All potential adoptive parents at some point wonder whether their life could turn into a Lifetime movie. But, can a biological parent really come back and contest an adoption? The answer is yes, but under limited circumstances and within a narrow window of time. This time period is called the revocation period.

Different laws apply to adoptions through agencies or through the Department of Social Services, but for parental placement adoptions the revocation period is regulated by Virginia Code Section 63.2-1234. This code section establishes that consent shall be revocable under two circumstances:

First, consent is revocable by either consenting birth parent for any reason for up to … Read More »

Today the Uniform Law Commission is meeting to consider final approval of proposed custody rules for military servicemembers. Their proposal – the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) – seeks to address many of the important issues that arise when a military parent deploys, and to resolve the wide variety of laws among the different states.

A servicemember parent will often create a Family Care Plan (FCP) to become effective upon their deployment, but in cases where a valid court order exists the FCP and order often come in conflict. The non-deploying parent is not required to sign off on an FCP, and many times the wishes of the deploying servicemember as set out in the FCP are overruled by the court order. Moreover, custody orders very rarely contain express provisions providing for a potential delegation of parental rights … Read More »

Making the decision to adopt a child into your family is not one come to easily, lightly, or without much investigation. Once the decision to adopt is made many people struggle with how and where to begin, especially if the potential adoptive parents decide to forego enlisting the help of an adoption agency.

One absolutely necessary component of almost all adoptions is the completion of a home study. [There are exceptions where a home study would not be necessary, and the attorneys at Livesay & Myers, P.C. can advise you whether your case meets one of those exceptions.]

A home study is a review of any person wanting to adopt. An accredited organization or business investigates and reviews the potential adoptive parent(s) and anyone else living in the home. The areas of review include, but are not limited to: the current family … Read More »

Sex crimes often involve slightly different rules and procedures than other areas in criminal law. Many sexual assaults are not reported immediately, excluding the possibility of physical evidence and enhancing the importance of witness testimony. When cases like this go to court, the Judge must carefully determine which out of court statements are allowed to be repeated and by whom. Hearsay, defined as any “out-of-court statement that is being offered to prove the truth of the matter asserted,” is generally inadmissible as evidence. However, depending on the reason the statement is being offered, hearsay is sometimes allowed. The hearsay rule and its exceptions govern what kinds of out of court statements can be repeated to prove something in court.

There are several enumerated exceptions to the hearsay rule within the Virginia Rules of Evidence.

One of these exceptions is the “recent complaint … Read More »

Starting July 1, 2012, Virginia residents may have an easier path to finalizing a divorce. Governor Bob McDonnell approved changes to Virginia Code Section 20-99 loosening the notice requirements in divorce cases. The new portion of that Code section (which deals with how suits for divorce are instituted) reads as follows:

In cases where such suits have been commenced, the defendant has been served pursuant to the provisions of subdivision 1 of [Virginia Code Section] 8.01-296, and the defendant has failed to file an answer to the suit or otherwise appear within the time allowed by law, no further notice to take depositions is required to be served on the defendant and the court may enter any order or final decree without further notice to the defendant.

In other words, when a defendant in a divorce proceeding was personally served with the Complaint for … Read More »

Manassas City police arrested a twenty-one year old female early on the morning of June 24 for DWI/DUI, possession of marijuana and texting while driving. According to an article by InsideNOVA.com, Courtney Michelle Blaydes was driving down the wrong side of Godwin Drive when she was observed by a Manassas police officer. After being stopped, Blaydes allegedly informed the officer that she had been texting. A police search of the vehicle then apparently resulted in the discovery of a smoking device and two bags possibly containing marijuana.

Texting while driving is a secondary offense, meaning it can only be charged after probable cause is established for a primary offense; in this instance, driving on the wrong side of the road would be the primary offense that would create the probable cause to initiate a traffic stop. If the driver did admit to texting, then a ticket … Read More »

The U.S. Supreme Court has weighed in on a growing controversy pitting individual states against the federal government on the topic of illegal immigration.

Frustrated with what some have seen as as the federal government’s inability to control illegal immigration, states such as Alabama and South Carolina have enacted their own laws to deal with the issue.

On Monday, June 25th, the Court ruled that Arizona had, for the most part, gone too far with their statute. Arizona’s immigration statute, known as SB1070, initially invited both criticism and praise when enacted in 2010. But on Monday, in a 5-3 decision, the Court held that three of the statute’s four provisions are preempted by the Immigration and Nationality Act; specifically, the provisions of SB1070 (a) making it a misdemeanor for an undocumented alien to fail to apply for or carry alien registration paperwork; … Read More »

New Immigration Plan Provides Relief Similar To DREAM Act 

Today, in a blockbuster move, the federal government announced
that it would no longer seek the deportation of hundreds of thousands now present in the U.S. without legal status, who were brought to the United States as children, and would allow them to apply for work permits if they meet certain criteria.

The new policy, announced today by the Department of Homeland Security (DHS), is effective immediately. A senior official with the Obama administration said in a conference call with reporters that as many as 800,000 undocumented immigrants stand to benefit from this change.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Homeland Security Secretary Janet Napolitano in a statement Friday. Secretary Napolitano further elaborated that the new plan represented neither immunity nor amnesty, but instead represented an instance of “prosecutorial discretion” in which the government … Read More »

This past Tuesday, the U.S. House of Representatives passed House Resolution 4282, which puts the the United States one step closer to the easier and more effective collection of child support payments from parents living abroad. The International Child Support Recovery Improvement Act of 2012, passed unanimously by the House, provides key language that will allow the U.S. and individual states to implement the terms of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

As reported by WTOP and other outlets (via the Associated Press):

The 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance has been signed by the United States, the European Union and several other mostly European countries, including Ukraine, Albania, Norway and Bosnia and Herzegovina. So far, only Norway has ratified it.

Under federal law, ratification of … Read More »

Former NBA Player Seeks Spousal Support from Wife

When professional athletes are involved in separation and divorce cases, spousal support is often a key issue. Typically it is the non-player spouse seeking support from the pro athlete. In an interesting twist, however, TMZ.com recently reported that former NBA player Charlie Bell has filed a request for spousal support from his estranged wife, Kenya Bell:

Former NBA player Charlie Bell — who filed for divorce from Kenya [Bell] earlier this year — filed legal docs, claiming he’s been low on cash ever since the NBA dropped him last year. Charlie’s been playing pro ball internationally ever since, but the money’s just not the same — not nearly.

Charlie concedes he’s got over a mil in the bank, but claims Kenya’s the one who’s hit it big with her role on ‘Basketball Wives’ … Read More »

Traveling in the Northern Virginia or D.C. area this weekend for Memorial Day? Watch out for speed traps. Holiday traffic brings out additional law enforcement, and that means speed traps that will snare all too many drivers.

The National Motorists Association (NMA), a grassroots motorists’ rights group, has updated its 2010 rankings of the cities and states that are generally more likely to ticket speeding drivers. Among 50 states and the District of Columbia, D.C. ranks 8th and Virginia ranks 22nd. In addition, the Washington, D.C. metro area ranked 7th among the top 10 metro areas for traffic tickets.

With AAA predicting that 34.8 million people will travel 50 miles or more from home this holiday weekend, you can be sure law enforcement will be out in droves in the Northern Virginia and D.C. area.

Other than not speeding (the safest bet), the cautious driver might … Read More »

Congratulations to Livesay & Myers, P.C. associate attorney Ben Griffitts, who has been named one of the Top 40 Under 40 Trial Lawyers by the National Trial Lawyers Association (NTLA). According to the NTLA website:

Membership into The National Trial Lawyers Association: Top 40 under 40 is by invitation only and is extended exclusively to those individuals who exemplify superior qualifications, trial results, and leadership as a young lawyer under the age of 40. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. The result is a credible, comprehensive and impressive list of young attorneys chosen to represent their state. 

The Top 40 under 40 is restricted to only 40 attorneys per state per year and each attorney must be under the age of 40 as of January 1, 2012. Attorneys must also specialize in the … Read More »

Virginia has a reputation for strict penalties following DUI or DWI convictions. Mandatory minimum jail sentences, mandatory minimum fine amounts, mandatory driver’s license suspension (or privilege to drive in Virginia if you don’t have a Virginia license), completion of the Virginia Alcohol Safety Action Program, are all written into Virginia law by the General Assembly. One of the required penalties, the installation of the ignition interlock device, will undergo a dramatic change come July 1st.

Earlier this year, the General Assembly passed HB 279 which was signed into law on March 7, 2012 by Governor McDonnell. Virginia Code Sections 18.270.1 and 18.2-271.1 were amended dealing with the circumstances under which an interlock device is required to be installed once a restricted license is granted by a court following a DUI or DWI conviction. Following are the significant changes made to the interlock requirement:

Current … Read More »

Imagine this scenario: Vehicle A is sitting in a left turn lane governed by a traffic signal, which is currently a solid green globe. Her left turn signal is on, and she is waiting for oncoming traffic to clear before making a left turn. Vehicle A watches a final car pass, looks ahead, sees no cars coming, and begins to turn left onto the intersecting street. As Vehicle A begins her turn, Vehicle B appears over the crest of a slight hill. Vehicle B hits Vehicle A in the back portion of her vehicle. Law Enforcement is called to arrive. During the investigation, the driver of Vehicle B concedes to driving 5 to 7 miles over the posted speed limit. Both drivers complain of minor injuries.  Does the officer issue a ticket to either driver? If so, to whom? Who … Read More »

The status of child custody, when the parents of a child separate, is unsettled until an order for child custody is entered by a court. Much discussion, during consultations for divorce and/or child custody, focuses on which parent has custody rights. The answer is both parents do, but then again, neither parent does. It sounds complicated but is actually very straightforward.

Until a court in the county where the child resides grants an order for custody, both parents have the ability to “assume” custody of the child at will. What this boils down to is that either parent can physically remove the child from the other and assert that the child will remain with them.

Unfortunately, I have seen cases where the child is residing with one parent and the other parent refuses to return the child after visitation or after picking up the … Read More »

Family law is a unique area of law because the family is a constantly changing entity. Children grow older, parents remarry, and in this global economy jobs are often gained and lost on opposite sides of the country if not the world. This constant change can wreak havoc on family law court orders that were entered under an entirely different set of facts or in completely different jurisdictions than the family’s current home. If you find yourself staring at an old court order and wondering what a provision means, or what your options are to change it, then you should consider consulting with a family law attorney today.

Litigation is expensive, time consuming and stressful. Making an appointment to discuss your case with an attorney before you receive a summons to appear in court will decrease your overall stress and allow … Read More »

The simple possession of marijuana may no longer be a crime in Washington state or Colorado, but it remains a criminal offense in Virginia. Furthermore, there is a clear line in the sand across which simple possession of marijuana becomes possession with intent to distribute marijuana: ½ ounce. Simple possession of marijuana, a violation of Virginia Code Section 18.2-250.1 is a misdemeanor; possession with intent to distribute more than ½ ounce becomes a felony.

If a person is in possession of ½ ounce or less of marijuana, the likelihood is that that he or she will be charged with simple possession. A first offense for simple possession carries a maximum penalty of 30 days in jail, a $500 fine and a 6 month driver’s license suspension. A second or subsequent conviction becomes a Class 1 Misdemeanor, which means that a person … Read More »

When divorcing or separating, there are several different types of custodial relationships in Virginia. The wide range of options allows both parents and the courts to determine the best interests of the child. But what do you do when your “child” is a golden retriever named Rex?

The past decade has seen a significant rise in “pet custody” cases – pet owners asking the court to decide ownership and custody of their pets. Several states have also proposed laws to provide judges with guidance on pet visitation, dividing vet bills– even when owners could relocate with their pets.

In Virginia, however, the law has remained unchanged – pets are property. In a divorce case all marital property – property acquired during the marriage – is divided between the parties. If the pet was purchased during the marriage, it must be valued and … Read More »

The word assault conjures many images, such as Marines jumping off fast-moving HUMVEES, rifles raised, eyes steely and resolute, advancing towards the enemy in a hail of bullets; a fist smashing into a man’s jaw during a barroom brawl, or; a figure lurking in the shadows grabbing the early morning jogger as she rounds a bend in the trail. All three of these images are assaults as defined in common usage. But legally, an assault requires absolutely no physical contact whatsoever.

Do you think you can be convicted of an assault for throwing a rock in the direction of a man walking away from you, even if the man never knew you threw the rock? Do you think you could be convicted of an assault for pretending to throw a rock at a man walking toward you? What if you started … Read More »

Most of us are familiar with the fable of the tortoise and the hare. The speedy hare declares no other animal a match for his speed, only to be challenged to a race by the slow-moving tortoise. The hare sprints from the start line, charges ahead, and in contempt for his opponent, lays down for a nap. All the while, the tortoise continues to slowly press ahead. When the hare awakes, he sees the tortoise near the finish line, and despite his speed, he cannot get there faster than the tortoise. The tortoise wins the race, not because of his speed, but rather his consistency.

In much the same way, a personal injury claim can be resolved successfully through consistency.

So many auto accident victims start their case like the hare: they make an initial doctor visit, contact the insurance companies and make arrangements … Read More »

The Supreme Court of Virginia has issued a published opinion in the appeal by attorney Ghislaine Storr Burks of a case involving a North Carolina bail bondsman convicted of Attempted Abduction and Use of a Firearm in the Commission of a Felony in Virginia.

Note: less than two percent of cases filed with the Virginia Supreme Court result in the petition for appeal being granted.

Congratulations to Ms. Burks for fighting this case all the way to the Virginia Supreme Court. This author notes the comment by one of the Supreme Court Justices during oral argument that Ms. Burks’ brief was very well written.

Ms. Storr Burks is a partner and the lead criminal defense attorney at Livesay & Myers, P.C.

About the only saving grace following a conviction on a charge of DWI, DUI, drug possession, or high speed reckless driving in Virginia is the opportunity to receive a Restricted Operator’s License so that you can continue to drive for a number of necessary, but limited, purposes.

A Virginia Restricted License allows a person to drive to and from their place of business, even during work under certain verifiable conditions; to and from an educational institution; to and from medical facilities for yourself or someone under your care; to and from school or daycare for your children; to and from court-ordered visitation with children; and to and from court-ordered probation or VASAP. In 2010, the General Assembly even added the ability to drive to a place of religious worship one day per week. You can find the entire list of uses … Read More »

Remarrying and starting a new family is an exciting time in most people’s lives. Many families have adopted the terms “bonus children” or “bonus parent” to highlight the happiness that comes from an expanding family. Stepparents can and often do take on an important and involved role in children’s lives. Sometimes the stepparent is more involved and a better influence than one of the biological parents. In these situations, many parents want to learn about the possibility and likelihood of the stepparent adopting the child.

Stepparent adoption is the most common type of adoption. The process involves multiple steps which can be executed with relative ease depending on the willingness of the biological parent.

The first step in any stepparent adoption is to address the rights of the biological parent. If the parent has been absent from the child’s life for an extended … Read More »

Congratulations to Ghislaine Storr Burks, who today was officially named a Partner at Livesay & Myers, P.C., just 5 years after joining the firm as an associate attorney in January 2007. With her tireless efforts on behalf of her clients, record of success in defending clients in courts across Northern Virginia, and knowledge of the criminal justice system that is second to none, Ms. Storr Burks is a priceless asset to the firm.

In any separation, one of the most difficult issues to address is the marital residence. Whether secured by a mortgage or owned free-and-clear, the home typically represents the most valuable asset owned by a couple. In this buyer’s market, it can be difficult (if not impossible) to simply sell a house and split the profits. Sometimes, the parties want one parent to stay in the house until their kids finish school to avoid pulling them from their childhood home. In other cases, there simply may be no realistic way to sell the house for a profit. This reality often leads parties to consider continuing jointly owning their house beyond their separation and divorce, whether that is for two, five, or even ten years.

While on its face this approach seems practical, deciding to retain joint ownership over the marital residence after … Read More »

According to a Washington Post article, in a huge blow to the public schools of Prince George’s County, Maryland, a settlement between the County and the Department of Labor will end recruitment of teachers from overseas, particularly the Philippines, for the next two years. The settlement results from a federal finding that the school district recruited overseas teachers to come to the U.S. and work on H-1B visas, but failed to pay requisite legal and filing fees, instead forcing the teachers to cover all fees. The overall aftermath of the settlement will be staggering: the County must pay $4.2 million in back wages, 161 current teachers will lose their jobs and visa status, and more terminations are likely.

A recent op-ed published by The New York Times makes the argument that states should adopt set guidelines for determining alimony awards. The editorial, “Ending the Alimony Guessing Game,” argues that making spousal support awards more predictable would result in more fairness and less costly litigation.

This argument is absolutely correct. Adoption of a strong statewide spousal support formula in Virginia would take a lot of the guesswork out of most alimony cases, resulting in more settlements of contested divorce, and saving parties thousands of dollars in legal fees in many cases.

As I previously wrote on this blog, in Is It Really Cheaper To Keep Her (Or Him)?, Virginia law does seem to be moving toward more and more reliance on certain guidelines in determining spousal support– most commonly the so-called “Fairfax guidelines.” Virginia has now adopted the Fairfax guidelines statewide for … Read More »

On Friday, July 8th, Livesay & Myers immigration lawyer Jennifer Varughese will be speaking at a Virginia Continuing Legal Education (CLE) seminar hosted by George Mason School of Law, entitled “Immigration Consequences of Criminal Convictions.” She’ll be discussing her case, Commonwealth v. Morris, 281 Va. 70 (Va. 2011), currently on appeal to the U.S. Supreme Court, and how it relates to the U.S. Supreme Court’s decision in Padilla v. Kentucky.

Commonwealth v. Morris is a case at the center of a raging legal battle involving the immigration consequences of criminal convictions in Virginia. As detailed by an article by The Washington Post, Ms. Varughese represents a lawful permanent resident who pled guilty in 1997 to petty larceny, after being told by a public defender that the guilty plea would not affect his immigration status, only to find himself facing deportation for that … Read More »

The U.S. Department of State has released the following questions and answers taken from their June 20, 2011 daily press briefing, regarding new regulations for J-1 Visas for summer work travel:

Q: Please provide details on the specific aspects of the new regulations for J-1 visas. What is the intention of these new regulations? Are we confident that these new regulations will protect recipients from abuse?

A: The Summer Work Travel (SWT) program has provided thousands of international college and university students an opportunity to visit the United States and experience the American people and culture firsthand.

In 2010, approximately 120,000 college and university students participated in the Summer Work Travel program.

Given the expanding size of this program, the Department of State has perceived the need to enhance safeguards for participants. We are confident that … Read More »

On June 9, 2011, U.S. Citizenship and Immigration Services outlined their new Unauthorized Practice of Immigration Law Initiative. As stated in the Executive Summary of the initiative:

The unauthorized practice of immigration law (UPIL) is a serious national problem that adversely impacts individuals throughout the country. Anyone who is in need of an immigration benefit, either for himself or a family member, can be harmed by UPIL, including U.S. citizens, lawful permanent residents, nonimmigrants, refugees and asylees, and undocumented aliens. U.S. Citizenship and Immigration Services (USCIS) will combat this pervasive problem through its UPIL Initiative.

Contact Our Immigration Law AttorneysIf you or a loved one require legal assistance with an immigration law matter, contact us to schedule your initial consultation with an experienced immigration lawyer today. Our immigration attorneys represent clients throughout Virginia, Maryland and the District of Columbia.

With a change effective July 1, 2011, Virginia’s protective order statute will now cover persons in dating relationships. The new legislation expands Chapter 9.1 of Title 19.2 of the Virginia Code from “Protective Orders for Stalking” to “Protective Orders.” Chapter 9.1 now applies to “any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury,” as provided in a new section:

§ 19.2-152.7:1. Definitions. As used in this chapter: “Act of violence, force, or threat” means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault … or any criminal offense that results in bodily … Read More »

Soon, teenagers convicted in Virginia of driving after consuming virtually any amount of alcohol will lose their driver’s licenses for a year and be guilty of a Class 1 misdemeanor.

Currently in Virginia, persons under 21 convicted of driving with a blood alcohol concentration (BAC) of .02 [but less than .08 BAC when all drivers are presumed to be driving while intoxicated] are penalized with only a six-month driver’s license suspension and a “fine of not more than $ 500.”

But effective July 1st, a new law doubles the driver’s license suspension period (to one year), and elevates such conduct to a Class 1 misdemeanor.

According to the National Highway Traffic Safety Administration, a 120-pound male or female would reach a BAC of .02 after consuming just one drink in one hour. Therefore, under the new law, it may only take a drop … Read More »

Somos Republicans, a national watchdog group and the largest Hispanic Republican grassroots organization in the nation, is calling for an end to unjust deportations of U.S. military veterans:

“Veterans of the United States Armed Forces who served under honorable discharge are facing court proceedings for deportations. Hundreds of Veterans are facing deportation and we would like to start by bringing awareness to the situation involving the Valenzuela Brothers. Manuel and Valente Valenzuela are currently awaiting trial and are facing deportation today. Therefore, we are asking the President of the United States to stop the deportations of all veterans who served under honorable discharge conditions. We believe the President has the power to pardon those who have served our country honorably. The mission is to leave “no man behind” and we hope to see President Obama make a symbolic move this year … Read More »

Today, the U.S. Department of State issued a notice that, due to a computer glitch, the 2012 Diversity Visa Lottery results have been voided. The results, according to the DOS, did not represent a truly random selection of applicants. Individuals who were selected as early as May 2011 will have to revisit the website starting July 15, 2011 for the new lottery results. No further applications are necessary if applicants initially filed between October 5, 2010 and November 3, 2010.

Selective Service has just posted the following item on the front page of its web site:

ATTENTION, UNDOCUMENTED MALES & IMMIGRANT SERVICING GROUPS!

Selective Service does not collect any information which would indicate whether or not you are undocumented. You want to protect yourself for future U.S. citizenship and other government benefits and programs by registering with Selective Service. Do it today.

If you are a man ages 18 through 25 and living in the U.S., then you must register with Selective Service. It’s the law. According to law, a man must register with Selective Service within 30 days of his 18th birthday. Selective Service will accept late registrations but not after a man has reached age 26. You may be denied benefits or a job if you have not registered. You can register at any U.S. Post Office and do not need … Read More »

Livesay & Myers immigration lawyer Jennifer Varughese was today named the Pro Bono Lawyer of the Year (2010) by the Fairfax County Bar Association. She will be honored with the award at the February Membership Luncheon of the Fairfax Bar.

In an ideal world, after the final custody order is entered, all the animosity melts away and families transition seamlessly into their custody arrangement. Unfortunately, this isn’t always the case. As children grow, parties remarry, and priorities change, you may find that you or your children are no longer happy with your custody order.

Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.

The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a … Read More »

Technology is a wonderful tool to make our lives easier and help us connect with friends across the world, through social networking sites such as Facebook, Myspace or LinkedIn. Technology has allowed instant communication through texting, instant messaging and e-mail. While these technological advances may make our social lives more enjoyable, they can lead to hidden perils during a divorce or custody case.

Social Networking Sites

Posting on a social networking site may seem like harmless fun, but during a divorce or custody case these postings can easily move from the computer to the courtroom. Your time in front of a Judge is limited, and the last thing you want to do is waste time defending the angry wall post you wrote at 2 a.m. or those pictures of you blowing off steam at a friend’s party, during your divorce or custody … Read More »

The Visa Bulletin for February 2011 is now available. The Department of State (DOS) issues the Visa Bulletin, which summarizes the number of available immigrant visas (green cards) according to preference categories, each month.

Family-Sponsored Green Card Categories
The Family-Based First Preference (FB1) category for Worldwide, China and India stalled at January 1, 2005. The Philippines advanced two months in this category, to August 1, 1994, while Mexico advanced by just two weeks, to January 22, 1993.

In the Family 2A category, the cutoff dates for Worldwide, India, China and The Philippines all remained at January 1, 2008, while Mexico stalled at April 1, 2005.

The Family 2B category saw the cutoff dates for Worldwide, India and China remain at April 15, 2003, while Mexico advanced by nine days, to July 1, 1992. The Philippines advanced in this category by 2.5 weeks, to June 1, 1999. … Read More »

The Visa Bulletin for January 2011 is now available. The Department of State (DOS) issues the Visa Bulletin, which summarizes the number of available immigrant visas (green cards) according to preference categories, each month. The January 2011 Visa Bulletin brought bad news for those awaiting family-sponsored green cards, as much of the advancement of the last two years in those categories has been reversed. One bright spot was a ten month advancement for EB-3 Skilled/Professional Worker green cards for Mexico.

Family-Sponsored Green Card Categories
The Family-Based First Preference (FB1) category for Worldwide, China and India retrogressed by 13 months, to January 1, 2005. The Philippines fell back 34 months in this category, to June 1, 1994, while Mexico advanced by just one week, to January 8, 1993.

In the Family 2A category, Worldwide, India, China and The Philippines all retrogressed by 31 months, to January … Read More »

The Visa Bulletin for December 2010 is now available. The Department of State (DOS) issues the Visa Bulletin, which summarizes the number of available immigrant visas (green cards) according to preference categories, each month. The December 2010 Visa Bulletin showed very little advancement for most countries in most categories– with The Philippines actually retrogressing substantially in several family-based categories. Mexico did see a nice advancement in the EB3 “Other Worker” category.

Family-Sponsored Green Card Categories
The Family-Based First Preference (FB1) category for Worldwide, China and India saw no advancement, remaining at February 15, 2006. The Philippines stalled in this category, at April 1, 1997, while Mexico advanced by just over one week, to January 1, 1993.

In the Family 2A category, Worldwide, India, China and The Philippines all advanced by two months, to August 1, 2010, while Mexico remained at March 1, 2010.

The Family 2B … Read More »

Unfortunately, many people reach a point of no return in their marital relationship. Perhaps a spouse has been unfaithful or abusive, or maybe two people have simply drifted apart over time. Whatever the reason, you’ve made the decision that you need to turn the page and move on with your life. One of the first steps in the divorce process is the establishment of a date of separation. But why is it important, and how can you ensure that you’ve done it correctly?

A separation date may be crucial to your divorce case for a number of reasons. First, if you don’t have a fault basis for your complaint (adultery, cruelty, desertion, constructive desertion, etc.), then your separation date will determine when you can file for divorce. In Virginia, you must wait one year to file if you have children and/or … Read More »

You and your spouse have decided to separate. You have decided who will move out and even who will have custody of your children. Inevitably, the discussion will turn to support, both child and spousal. How much is enough? Why should he get spousal support if I have the kids? Why should I pay at all? In some of these discussions, one party throws out the dreaded “B-word” – bankruptcy.

Bankruptcy is more than what you declare when you lose at Monopoly or what takes all your money on “Wheel of Fortune.” Bankruptcy is the government’s way of allowing people to get rid of their debt and have a chance at a fresh start. But what effect does bankruptcy have on a person’s support obligations? Consider the following three situations.

Situation One: Rick and Kate are discussing their Property Settlement Agreement, and … Read More »

The Visa Bulletin for November 2010 is now available. The Department of State (DOS) issues the Visa Bulletin, which summarizes the number of available immigrant visas (green cards) according to preference categories, each month. The November 2010 Visa Bulletin showed advancements in several categories.

Family-Sponsored Green Card Categories
The Family-Based First Preference (FB1) category for Worldwide, China and India saw no advancement, remaining at February 15, 2006. The Philippines advanced in this category by one month, to April 1, 1997, while Mexico advanced one week to December 22, 1992.

In the Family 2A category, Worldwide, India, China and The Philippines all advanced by two months, to June 1, 2010, while Mexico progressed by two months, to March 1, 2010.

The Family 2B category saw Worldwide, India and China cutoff dates progressed by two months, to June 1, 2005. The Philippines and Mexico, however, are stalled in … Read More »

In a record breaking year for the Department of Homeland Security (DHS), 392,862 individuals were deported from the United States over the last fiscal year. Of that number, 195,772 were convicted criminals. In the previous fiscal year, about 389,000 individuals were deported.

In particular, the increase in criminal deportations stemmed from the DHS “Secure Communities” program, which allows local law enforcement to check the immigration status of each individual booked into jail. Locally speaking, Prince William County is part of the Secure Communities program whereas Arlington County voted, on September 28, 2010, to withdraw itself from the program.

Immigration issues are front and center in key midterm elections across the country. The growing number of local jurisdictions attempting to take immigration issues into their own hands demonstrates the growing frustration over a broken federal immigration system. Results of the November elections will … Read More »

Over the past few years, U.S. Immigration and Customs Enforcement (ICE) has increased its audits of U.S. companies. The latest high profile case involves popular clothing retailer, Abercrombie & Fitch. Yesterday, in a settlement, A&F agreed to a $1.9 million fine for technology-related deficiencies in its electronic employment-status verification system. ICE found no instances of A&F hiring undocumented workers, but there were issues with methods used to confirm compliance with immigration laws. The entire investigation shows the importance of proper I-9 documentation for current and new employees at U.S. companies.

If your company requires legal assistance with I-9 documentation for your employees, contact us to schedule your initial consultation with an experienced immigration lawyer today. Our immigration attorneys represent clients throughout Virginia, Maryland and the District of Columbia.

Previously we reported a proposed change to the system for obtaining immigration court information by calling an automated telephone number, 1-800-898-7180.

By calling that number and entering in one’s 9-digit alien or “A” number, information can be found such as hearing dates and case history with the immigration court.

Citing security concerns, the government proposed a change to the automated system, whereby callers would be required to also enter in the date on their charging document, referred to as a Notice to Appear (NTA).

Now, the government has announced that the proposed change will no longer be going into effect.

Responding to the outcry from private practitioners who feared that they would not be able to access court information for clients in deportation proceedings, the Executive Office for Immigration Review (EOIR) decided to keep the current system in place.

Thus, the automated system will continue to require … Read More »

In a major decision by current Governor Bob McDonnell, Virginia DMVs will no longer accept USCIS-issued work permits (also referred to as employment authorization cards) as proof of legal status necessary for a driver’s license or license renewal.

For scores of Virginia residents with Temporary Protected Status (TPS), asylee status, pending green card cases, etc., the work permit is often the only proof that one is in the United States legally. Therefore, the Governor’s action has been met with both confusion and frustration on the part of many lawful Virginia residents. On the other side of the debate, proponents of the new measure cite the ability of criminally-charged foreign nationals to obtain work permits as proof that it should not be the basis of one’s ability to obtain a driver’s license. Regardless, the fact remains that this new measure will negatively … Read More »

There are not many better examples of America’s do-it-yourself attitude than the notion of owning and managing a residential rental property. The housing boom of the first-half of the last decade led to many average Americans seeing “gold in them thar hills”: the magical land of rental income. Even in prosperous economic times, being a residential landlord be financially risky, to say nothing of trying to maintain a steady stream of tenants in rough times. Since the theory behind owning a rental property is extra income and not the great joy of housing others, single property residential landlords understandably attempt to save on costs wherever possible: through do-it-yourself advertising, do-it-yourself leases, do-it-yourself repairs, even do-it-yourself evictions. Landlords often find themselves spending more (or more commonly—losing more) money than they ever thought they would in the name of cost-savings. Why does … Read More »

Imagine for a moment: you’re planning that long-awaited summer vacation. You’re headed south to Orlando or the Outer Banks. Maybe you’re heading north to New York or Boston. You make all your preparations, and your final task is getting directions. You go to Google Maps, Mapquest or use your AAA triptik. Your trip requires you to travel on I-95 through Virginia. Your vacation begins, and you finally head out the door for that week of relaxation. You enter Virginia, and your mind is on everything but the speed limit. You keep up with the flow of traffic because you have no idea what the actual speed limit is. And before your vacation even starts, you’re being stopped by law enforcement and issued a citation for speeding. Except that many times, its not speeding you’re charged with. Rather its Reckless Driving. … Read More »

On August 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 August 14, 2010, and will remain in effect through September 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 … Read More »

Individuals in removal (deportation) proceedings are able to obtain immigration court information by calling an automated telephone number, 1-800-898-7180. By calling that number and entering in one’s 9-digit alien or “A” number, information can be found such as the day/time of one’s removal hearing, the assigned immigration court and immigration judge, any past removal orders entered, and any pending appeals before the Board of Immigration Appeals (BIA).

Citing security concerns, the government is proposing a change to the automated system, whereby callers would be required to also enter in the date on their charging document, referred to as a Notice to Appear (NTA).

Such an additional requirement may prove problematic for attorneys and family members who have a loved one in immigration custody. It can be difficult for third parties to obtain a copy of the NTA and, thus, concerned parties may … Read More »

U.S. Citizenship and Immigration Services (USCIS) is reminding nationals of El Salvador (and persons without nationality who last habitually resided in El Salvador), who have Temporary Protected Status (TPS), to file their re-registration applications for TPS before the end of the re-registration period on September 7, 2010.

The 18-month extension of TPS for El Salvador will remain in effect through March 9, 2012. Individuals who have received TPS previously must re-register for the 18-month extension during the re-registration period. Failure to file a TPS re-registration application during the re-registration period, without good cause, will result in withdrawal of TPS benefits, including employment authorization and protection from removal from the United States.

To re-register, all TPS beneficiaries must file both the Application for Temporary Protected Status, Form I-821, and the Application for Employment Authorization, Form I-765, with the correct fees or a properly … Read More »

Changes are coming to the fees charged by the nation’s adjudicator of immigration benefits, U.S. Citizenship and Immigration Services (USCIS). Under the new proposed fee schedule, filing fees for most applications will rise an average of 10%. Notable increases include:

Form I-130 (family petition) – increase from $355 to $420
Form I-485 (green card application) – increase from $930 to $985
Form I-765 (work authorization application) – increase from $340 to $380
Form I-751 (removal of conditions on green card application) – increase from $465 to $505

The filing fee for the naturalization application, Form N-400, will remain at $675.

Filing fees for 3 notable applications are actually decreasing: 1) petitions for fiance visa ($455 to $340), 2) applications to extend/change nonimmigrant status ($300 to $290) and 3) applications for replacement naturalization certificate ($380 to $345).

A 45-day comment period on the proposed changes ended on July … Read More »

Temporary Protected Status (TPS) has been extended for nationals of El Salvador until March 9, 2012. Current TPS holders can re-register for benefits until September 7, 2010. If you are a national of El Salvador who did not register during the initial registration period in 2001, you may still be eligible for late registration if you meet the following criteria:

You have lived in the United States since February 13, 2001 AND, since 2001:
were in a valid nonimmigrant status, or had been granted voluntary departure, or any relief during deportation proceedings;
had a pending application for change of status, adjustment of status (green card), asylum, voluntary departure, or any other relief during deportation proceedings that you were able to appeal the denial of;
were a parolee or had a pending request for re-parole; OR
you were the spouse or child of an alien currently … Read More »

Is there anything you can do when you want your child to have a private education, but your ex doesn’t want to help pay the bill? It depends.

This is how child support works in Virginia: there is a presumptive amount of child support that is due to the primary custodial parent that is calculated using the gross incomes of the two parents. This presumptive amount of child support can be rebutted upon findings of fact, as required by Virginia Code Section 20-108.1(B), that justify a deviation from the guidelines.

Will a court deviate from the guidelines– order more child support than stated in the guidelines– to allow the custodial parent to send the child to private school? To answer this question, the Virginia Appellate Court has written that “a parent may be required to pay for private education expenses, even though … Read More »

In the wake of Tropical Storm Agatha, several forms of temporary immigration relief are available to eligible Guatemalan nationals upon request to U.S. Citizenship and Immigration Services (USCIS).

Temporary relief measures available to eligible nationals of Guatemala include:

The grant of an application for change or extension of nonimmigrant status on behalf of a Guatemalan national who is currently in the United States, even in cases where the request is submitted after the individual’s authorized period of admission has expired; 
Re-parole of individuals granted parole by USCIS;
Extension of certain grants of advance parole, expedited processing of advance parole requests;
Expedited adjudication and approval, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students;
Expedited processing of immigrant petitions for immediate relative(s) of U.S. citizens and lawful permanent residents (LPRs);
Expedited issuance of employment authorization where appropriate; and
Assistance to LPRs stranded … Read More »

The uncontested divorce lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Stafford, Fredericksburg and all of Northern Virginia. Using the procedures described below, we are able to finalize most of these uncontested divorces in just a few weeks, from start to finish– and at a total cost to the client of only $685 (including the court filing fee).

Under Virginia law, you would qualify for a no-fault, uncontested divorce if and when you (a) have been separated 12 months, or 6 months with a Separation Agreement in place and no minor children, and (b) have no remaining issues (custody, property, support, etc.) to be resolved.

Once you qualify, and assuming your spouse will cooperate with us (meaning he or she will sign a “Waiver of Service of Process”), we should be able to finalize your uncontested divorce fairly … Read More »

The Virginia Court of Appeals has granted the petition of Livesay & Myers, P.C. criminal lawyer Ghislaine Storr Burks for review of two important legal issues, in the case of a North Carolina bail bondsman convicted of Attempted Abduction and Use of a Firearm in the Commission of a Felony in the Circuit Court of Mecklenburg County, Virginia.

The defendant in the case has been a lawfully licensed professional bondsman from North Carolina for the past thirty-five (35) years. He came to Virginia for the purposes of apprehending a fugitive bailee after receiving information that the fugitive would be attending a funeral in Mecklenburg County. Before attending the funeral, the bondsman followed what he thought to be a thorough and lawful process by contacting the local authorities. Before ever going to the funeral he met with a Mecklenburg County Sheriff’s deputy … Read More »

U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2010 that it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

USCIS will provide regular updates on the processing of FY 2011 H-1B petitions. Should USCIS receive the necessary number of petitions to meet the cap, it will issue an update to advise the public, that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the … Read More »

So things have been rocky and you and your spouse have decided to split up. There is just one problem: neither of you wants to leave. If you are both on the title of the house, then you are both entitled to remain there. Besides, you can’t afford to make an additional rent or mortgage payment.

What do you do? Well, if you want out badly enough, you have several options:

Move in with a friend or family member, gratis;
Get a roommate;
Put the house up for sale; or
Try to refinance.

However, if you really want to stay in the home, you may be able to get your spouse out of the house, depending on the circumstances:

If you are being physically abused by your spouse and in imminent fear for your safety, you need to get a protective order. With the protective order, you … Read More »

2009 Country Reports on Human Rights PracticesDOS, March 11, 2010.

U.S. Citizenship and Immigration Services (USCIS) announced on March 8, 2010 that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach … Read More »

The National Visa Center (NVC) at Portsmouth, New Hampshire has released its Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-based preferences Registered as of November 1, 2009.

The report shows the numberof immigrant visa applicants on the waiting list in the various preferences and subcategories subject to numerical limits, and is worth reading for anyone on the list.

Contact UsIf you or a loved one require legal assistance with an immigration law matter, contact us to schedule your initial consultation with an experienced immigration attorney today. Our immigration lawyers represent clients throughout Virginia, Maryland and the District of Columbia.

The Department of State (DOS) is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. This DOS information sheet explains the operation of the immigrant number allotment and control system.

How The System Operates

At the beginning of each month, the Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped by foreign state chargeability/preference/priority date. No names are reported. During the first week of each month, this documentarily qualified demand is tabulated.

VO subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments. The totals of documentarily qualified applicants which have been reported to VO, are compared each month with the numbers available for the next regular allotment. … Read More »

Pushback Over Border Busts“After warning federal prosecutors for two years, Judge Sam Sparks was fed up with the parade of nonviolent illegal aliens in the overburdened courtrooms in his Texas division. What he did next, said lawyers across the country, was astounding and unprecedented.” Marcia Coyle, NLJ, March 1, 2010.

ICE “Surge” Targets Aliens With Criminal Records“The nation’s top immigration cop said Friday that the Obama administration is stepping up enforcement against immigrants who commit crimes and will move aggressively against employers who hire unauthorized labor.” Dallas Morning News, February 27, 2010.

U.S. Citizenship and Immigration Services (USCIS) has provided detailed information regarding the Employ American Workers Act (EAWA) and H1-B petitions.

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act (commonly known as the “stimulus bill”). The stimulus bill contained the Employ American Workers Act (“EAWA”).

EAWA took effect on February 17, 2009 and will expire on February 17, 2011. EAWA prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received funds through the Troubled Asset Relief Program (TARP), or under section 13 of the Federal Reserve Act (collectively referred to as “covered funding”).

EAWA affects the current Labor Condition Application (LCA) process administered by Department of Labor (DOL) and the USCIS petition process for companies seeking H-1B workers. Companies subject to EAWA will now need to make new statements regarding … Read More »

On January 18, 2010, Department of Homeland Security (DHS) Secretary Janet Napolitano, in coordination with the U.S. Department of State, announced a humanitarian parole policy allowing orphaned children from Haiti to enter the United States temporarily on an individual basis to ensure that they receive the care they need—as part of the U.S. government’s ongoing support of international recovery efforts after last week’s earthquake.

“We are committed to doing everything we can to help reunite families in Haiti during this very difficult time,” said Secretary Napolitano. “While we remain focused on family reunification in Haiti, authorizing the use of humanitarian parole for orphans who are eligible for adoption in the United States will allow them to receive the care they need here.”

Humanitarian parole into the United States may be granted by the Secretary of Homeland Security to bring otherwise inadmissible individuals … Read More »

Temporary Protected Status (TPS) has been granted for undocumented Haitians who have been in the United States as of January 12, 2010. The registration period will likely start next week and will last for 180 days. During that time, the law firm of Livesay & Myers, P.C. will file TPS applications for qualified applicants, including work permits. Applicants must prove their Haitian nationality with documents such as a passport or birth certificate.

Our immigration lawyers charge a flat legal fee of $250 for such TPS applications. In addition to that legal fee, the following costs apply: $50 TPS registration fee, $80 biometrics fee (no biometrics fee if applicant is under 14), and $340 work permit fee.

If you or a loved one require assistance with an application for Temporary Protected Status (TPS), or any other immigration law matter, contact us to schedule your initial consultation … Read More »

Department of Homeland Security (DHS) Secretary Janet Napolitano announced on January 15, 2010 the publication of a rule formalizing the longstanding DHS policy to expedite and streamline the citizenship process for men and women bravely serving in America’s armed forces.

“The foundation of our national security is the patriotic service and extraordinary sacrifices made by the men and women of our armed forces,” said Secretary Napolitano. “Expediting the citizenship process for service members reflects our commitment to honoring those who come from all over the world to serve our country and become its newest citizens.”

The rule amends DHS regulations to conform to the National Defense Authorization Act of 2004, reducing the time requirements for naturalization through military service from three years to one year for applicants who served during peacetime, and extending benefits to members of the Selected Reserve of the … Read More »

Introduction

U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B “specialty occupation” classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Questions & Answers

Q: Does this memorandum change any of the requirements to establish eligibility … Read More »

The Haitian earthquake disaster has prompted lawmakers to consider granting Temporary Protected Status (TPS) to Haitians in the United States, so that those Haitians without status in the U.S. can live and work here while their home country deals with the disaster. Florida Republicans Lincoln and Mario Diaz-Balart and Ileana Ros-Lehtinen are pressing the Obama administration to speedily grant TPS relief. Meanwhile, Immigration and Customs Enforcement (ICE) and Department of Homeland Security Secretary Janet Napolitano have halted all deportations to Haiti.

Livesay & Myers, P.C. continues to monitor the government’s reaction to the earthquake and will post TPS-related updates as they become available.

Contact Our Immigration Law Attorneys

If you or a loved one require assistance with an application for Temporary Protected Status (TPS), or any other immigration law matter, contact us to schedule your initial consultation with an experienced immigration attorney today. Our immigration lawyers represent … Read More »

What is a “Cap”? 

The word “Cap” used in this Update refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification. The annual numerical limitations generally do not apply to persons who have already been counted against the cap in a particular nonimmigrant classification and are seeking to extend their stay in that classification.H-1B The H-1B visa program is used by some U.S.employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor’s … Read More »

“[S]he is as American as the kid of Irish-English heritage who likely sat alongside her in school. She speaks fluent English. She made good grades in school. She hasn’t broken a law since she was brought across the border. So, what’s to come of her? She says she is giving up her dream of becoming a nurse because she can’t get a Social Security card or a driver’s license because she is afraid of being deported. Deported from the only country she has known her entire life. Hers is not an isolated case. Each year in the United States some 65,000 ‘illegal’ students graduate high school.”

Tulsa World Editorial, Nov. 15, 2009.

The Department of Labor is further amending its regulations to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need before January 1, 2010, as established in the H-2A Interim Final Rule (IFR) published on April 16, 2009. The transition period is hereby extended to include all employers with a date of need before June 1, 2010.” See FR Doc. 2009-27496 for further information.

If you are an employer or employee requiring assistance with an H-2A visa or any other immigration law matter, contact us to schedule your initial consultation with an experienced immigration attorney today. Our immigration lawyers represent clients throughout Virginia, Maryland and the District of Columbia.

U.S. Citizenship and Immigration Services (USCIS) has announced a 120-day period in which it will temporarily accept H-1B petitions filed without Labor Condition Applications (LCAs) that have been certified by the Department of Labor (DOL).

USCIS has received requests from the public to accept H-1B petition filings that include LCAs that have been filed with DOL but that DOL has not yet certified. Processing delays arising from DOL’s recently implemented “iCERT” system have resulted in increased processing times (beyond 7 days) for certain LCA certifications. Affected employers and beneficiaries have reported being negatively impacted by DOL’s increased processing times which currently delays their ability to file H-1B petitions with USCIS. DOL expects that the current increase in LCA processing times is temporary.

As a public accommodation, USCIS began accepting H-1B petitions filed with uncertified LCAs for a 120-day period. The 120-day period … Read More »

U.S. Citizenship and Immigration Services (USCIS) has released a “Public Charge” fact sheet, which provides the following information regarding the “public charge” ground of inadmissibility and deportation in U.S. immigration law.

Introduction

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligble to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet seeks to inform non-citizens about public charge determinations and help them to make informed choices about whether to apply for certain public benefits.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to … Read More »

More asylum seekers from the Middle East, Africa, Latin America and the Caribbean are citing sexual orientation as reasons for seeking asylum, according to a new story by the Associated Press:

Since 1994, sexual orientation has been grounds for asylum in the United States. That’s when former U.S. Attorney General Janet Reno ruled in a case that persecution based on sexual orientation could be potential grounds for asylum. Until recently, those grounds have been rarely used and such cases represent only a fraction of all asylum cases. But now immigrant and gay activists say more asylum seekers from the Middle East, Africa, Latin America and the Caribbean are citing sexual orientation as reasons for seeking asylum. Activists say the asylum seekers are escaping rape, persecution, violence, and threats of death from places where homosexuality is either outlawed or strongly, … Read More »

Today, the U.S. Senate voted to end what is commonly referred to as the “widow penalty.” Under this penalty, if a U.S. Citizen spouse died before being married to his/her spouse for 2 years, any pending green card application for the non-U.S. Citizen would no longer be considered by USCIS. The most dire consequence of such a harsh rule is that it often led to deportation proceedings for the non-U.S. Citizen.

The Senate’s action, which is expected to be signed into law by President Obama, will allow the foreign national to file a self-petition for the green card within 2 years of the spouse’s death, as long as the individual has not remarried and can prove that the marriage was entered into in good faith. In addition, the law is retroactive and allows any foreign national whose U.S. Citizen spouse died … Read More »

U.S. Citizenship and Immigration Services (USCIS) is reminding the public that as of October 1, 2009, all citizenship applicants must take the new naturalization test, regardless of when they filed their Application for Naturalization (Form N-400).

“Becoming a United States citizen carries with it extraordinary rights and responsibilities,” said USCIS Director Alejandro Mayorkas. “Our new test captures the meaning of citizenship and is consistent with our values and history as a nation.”

The revised naturalization test will help strengthen integration efforts by emphasizing fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship.

USCIS began administering the new naturalization test October 1, 2008, with two basic objectives – to ensure a uniform test administration nationwide and to develop a civics test that can effectively assess an applicant’s knowledge of U.S. history and government. Up until October 1, 2009, … Read More »

Prince William County supervisors are expected to put in place a new directive from Homeland Security that will standardize how 287(g) immigration policies are implemented around the nation, according to an article by InsideNOVA.com.

“[Immigration and Customs Enforcement] has made changes to the Memorandum of Understanding (MOA), terminating the original agreement and requiring execution of a new and revised MOA,” state background documents to the board, which will meet to discuss the issue at 2 p.m. on Tuesday, October 13 at the McCoart Administration Building.

Supervisors have to authorize the police chief to sign and execute the new agreement.

The new agreement will not limit the number of officers eligible for 287(g) training and require ICE to give credentials for those who pass the course. It will also require the police department, as well as ICE, to perform background checks, according to the … Read More »

The Visa Bulletin for November 2009 is now available. The Department of State (DOS) issues the Visa Bulletin, which summarizes the number of available immigrant visas (green cards) according to preference categories, each month.

The Employment-Based First Preference (EB1) category continues to be current for all countries in the Visa Bulletin for November 2009.

The Employment-Based Second Preference (EB2) category continues to be current for all countries, except India and China. The EB2 cutoff date for China moved forward almost 10 weeks to April 1, 2005. However, India actually retrogressed in the EB2 category by 2 months, to January 22, 2005.

After the new fiscal year started with the October Visa Bulletin, visas remain available in the Employment-Based Third Preference (EB3) category for skilled/professional workers, with a cutoff date of April 22, 2001 for India and June 1, 2002 for all other countries.

Visas … Read More »

With only hours remaining before the end of the fiscal year, the Senate last night approved a continuing resolution that will allow the Department of Homeland Security to operate until the end of October while House and Senate conferees try to work out a final version of the agency’s spending bill. The House passed the stop-gap measure last week, and the resolution now heads to the White House for President Obama’s signature.

The continuing resolution effectively extends four major immigration programs – the Conrad 30 J-1 program for doctors, the religious workers program, E-Verify and the EB-5 investor visa – through October 31, 2009.

Contact Our Immigration Law Attorneys

If you or a loved one require assistance with the Conrad 30 J-1 program for doctors, the religious workers program, E-Verify or the EB-5 investor visa program, or any other immigration law matter, contact us to … Read More »

The 2011 Diversity Visa lottery is here.

On September 29, 2009, the Department of State announced the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009. Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 30, 2009.

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms … Read More »

When a petition for child custody is filed with a court in Virginia, most parents usually assume that the minor child, who is the subject of the suit, does not need to know about the Court case. In most cases, parents attempt to shield the minor child from any exposure to the case. However, the law does not necessarily assist parents in this respect.

Pursuant to Virginia Code § 16.1-263, once a petition has been filed with a Juvenile and Domestic Relations District Court in Virginia, the Court is required to issue a summons to the following parties: (1) the juvenile, if the juvenile is twelve (12) or more years in age, (2) at least one (1) parent, guardian, legal custodian or other person standing in loco parentis, and (3) any other person(s) the Court deems to … Read More »

U.S. Citizenship and Immigration Services (USCIS) has issued the following Questions and Answers regarding pending I-485 applications for employment-based green cards:

Question: Why is the wait so long for my employment-based green card?

Answer: A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available. The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States … Read More »

Immigration removal proceedings are up 110% in the last 5 years, according to data released by the Syracuse University-based Transactional Records Access Clearinghouse (TRAC), as reported by The Washington Independent.

Prosecutions referred by the Immigration and Customs Agency, or ICE, were up dramatically in June 2009 — a 47 percent increase from May 2009, and a 109.6 percent increase from five years ago.

According to TRAC, which bases its studies on data released from the Justice Department, 89 percent of the June cases were classified as “immigration” prosecutions, while less than 7 percent were for drug trafficking.

Anti-immigration advocates have argued that immigration reform featuring a legalization component cannot proceed until the government shows it is enforcing existing laws. However, this statistic regarding removal proceedings seems to clearly show that the Department of Homeland Security (DHS) is already enforcing immigration rules.

This statistic may also, however, support the … Read More »

Influential blogger and political pundit Andrew Sullivan warns that the paralyzed immigration system in the U.S. is at a point where it is harming our economic security:

The legal immigration system – the same one that has kept me in limbo for a quarter of a century – is reaching a breaking point. Skilled immigrants are returning home to the more fertile opportunities in China and India because America makes it almost impossible for talented immigrants to move here:

“What was a trickle has become a flood,” says Duke University’s Vivek Wadhwa, who studies reverse immigration. Wadhwa projects that in the next five years, 100,000 immigrants will go back to India and 100,000 to China, countries that have had rapid economic growth. “For the first time in American history, we are experiencing the brain drain that other countries … Read More »

On September 18, 2009, U.S. Citizenship and Immigration Services (USCIS) Bangkok Deputy Director Stacy Strong joined Rear Adm. Richard Wren, Commander of U.S. Naval Forces in Japan, at the Yokosuka Naval Station for a special naturalization ceremony for 98 new citizens of the United States.

Deputy Director Strong administered the Oath of Allegiance to the 56 Soldiers, Sailors, Marines; 40 military spouses; and two children of Sailors. This was the largest number of spouses to naturalize in one ceremony outside the United States.

As the new citizens recited the Oath, they declared to “support and defend the Constitution and laws of the United States of America,” which had added significance as the ceremony was held to celebrate and observe Constitution Day and Citizenship Day.

Deputy Director Strong underscored the commitment by USCIS to the U.S. Armed Forces, and remarked that USCIS will … Read More »

U.S. Citizenship and Immigration Services (USCIS) announced on September 15, 2009 that interim Employment Authorization Documents (EADs) will be issued to Salvadoran Temporary Protected Status (TPS) beneficiaries who have not yet received a final action on their re-registration applications and whose re-registration applications have been pending for more than 90 days.

Initially, the expiration date for Salvadoran EADs was March 9, 2009. USCIS automatically extended this EAD validity period to September 9, 2009. Issuance of the interim EADs will allow TPS beneficiaries to continue working while USCIS completes the processing of their re-registration applications.

USCIS has already processed over 99.5% of the Salvadoran re-registration applications for the current TPS designation period ending September 9, 2010. This includes a substantial number of re-registration applications filed after the re-registration period closed. A small number of pending re-registration applications are still under review by USCIS … Read More »

The U.S. Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) will publish a proposed rule in the Sept. 14, 2009 Federal Register that would recognize a Commonwealth of the Northern Mariana Islands (CNMI) specific nonimmigrant investor visa classification. This “E-2 CNMI Investor” status is one of several CNMI specific provisions contained in the Consolidated Natural Resources Act of 2008 (CNRA), which extends most provisions of federal U.S. immigration law to the CNMI.

These temporary provisions are proposed to provide for an orderly transition from the current CNMI permit system to the immigration laws of the U.S., to lessen potential effects on the CNMI economy, and to give foreign long-term investors time to identify and obtain appropriate U.S. immigrant or nonimmigrant status. The transition period will begin Nov. 28, 2009 and end on Dec. 31, 2014.

This proposed special status … Read More »

Effective September 8, 2009, federal contractors and subcontractors will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States. In July, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.

E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.

The Federal Acquisition Rule; Case 2007-013; Employment Eligibility Verification extends use of the E-Verify system to covered federal contractors and … Read More »

U.S. Citizenship and Immigration Services (USCIS) today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I-130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be … Read More »

United States Citizenship and Immigration Services (USCIS) has issued guidance clarifying for associations and their members certain regulatory requirements for filing petitions for H-2B classification on behalf of foreign workers. USCIS issued this clarification so that the public can be better informed of filing requirements and avoid unnecessary denials of individual petitions that may be otherwise approvable. USCIS has noticed a particular type of filing error in many H-2B petitions filed by certain associations on behalf of their members. Rather than file an individual petition with USCIS, some employers who are members of an association have sought H-2B non-agricultural workers via a “master” petition filed by their association.

A “master” petition is a petition that:

Is filed by an association (listing the association as petitioner) on behalf of several of its member-employers, and
Includes multiple temporary labor certifications which have been issued by … Read More »

Virginia law allows for several different types of custodial arrangements. It is important for any party going through a custody case to understand the differences and similarities between these different types of custody.

Sole Custody. With “sole custody,” one parent assumes the major role in the physical, emotional, and moral development of the child. The custodial parent has primary authority to make all major decisions affecting the child, who lives primarily with this parent. Sole custody is defined under Virginia Code Section 20-124.1 as an arrangement whereby “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”

Joint Custody. In a “joint custody” arrangement, both parents assume responsibility for the physical, moral, and emotional development of the child, and there are shared rights and responsibilities for making decisions that affect … Read More »

Virginia Code Section 20-103 provides that in any case where spousal support or child support is in dispute, a Virginia court may enter an order of temporary support pending the conclusion of the suit. Section 20-103 applies in suits for divorce, annulment, and separate maintenance and also in spousal support and child support proceedings brought in the juvenile and domestic relations district court (“JDR Court”).

Such a “pendente lite” order of support will last until the conclusion of the case, at which time the court may order more or less support, or no support at all, depending upon the facts of the case.

For child support, the statewide guidelines, which establish a “presumptively correct” amount of support, apply equally at both pendente lite and final hearings.

For spousal support, a JDR Court that is determining a request for pendente lite spousal support must … Read More »

Grandparents love nothing more than their grandchildren. But what do you do when you are a grandparent who is not allowed to see your grandchild? This situation often arises when parents are separated and the custodial parent does not get along with the non-custodial parent’s family. If you are in this situation, there may be recourse for you through the courts via a visitation order.

The standard Virginia Courts use when determining whether or not to award grandparents visitation with their grandchildren depends upon the parents’ stance on the visitation:

When both parents object to visitation, the court may not award visitation to the grandparents unless there a showing of actual harm to the child’s health or welfare without such visitation;
When the custodial parent objects and the non-custodial parent affirmatively requests the court award the grandparents visitation, the court may award visitation … Read More »

U.S. Citizenship and Immigration Services (USCIS) today reopened the fiscal year 2009 H-2B petition filing period and will immediately accept new H-2B petitions.

Although USCIS announced on January 7, 2009 that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

The normal (non-premium processing) adjudication time frame for H-2B petitions is 60 days. USCIS will make visa … Read More »

An annulment is a judicial declaration that a marriage was a nullity from the start, leaving the parties free to remarry as they might after a divorce. A marriage subject to annulment may be classified either as a “void” marriage or a “voidable” marriage.

Void Marriages

A “void” marriage is an absolute nullity in the eyes of the law. It requires neither an annulment proceeding nor a judicial declaration of annulment in order to be void, although parties to a void marriage may still choose to bring an annulment action in order to obtain a judicial declaration that the marriage was void ab initio.

Void marriages in Virginia include:

bigamous and polygamous marriages,
incestuous marriages,
underage marriages, and
same-sex marriages.

Voidable Marriages

In contrast to a void marriage, a “voidable” marriage is presumed to be a legally valid marriage until it is annulled by a judicial determination. In order … Read More »

U.S. Citizenship and Immigration Services (USCIS) announced on July 27, 2009 that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Somalia from its current expiration date of Sept. 17, 2009 through March 17, 2011. During the past year, DHS and the Department of State have continued to review conditions in Somalia. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18 month extension is warranted because the armed conflict is ongoing, and the extraordinary and temporary conditions that prompted the last TPS designation of Somalia on Sept. 4, 2001 persist.

Under the extension, individuals, who have already been granted TPS, are eligible to re-register and maintain their status for an additional 18 months. There are approximately 250 nationals of Somalia who are eligible to re-register. Certain Somalis may be … Read More »

U.S. Citizenship and Immigration Services (USCIS) has released the following FAQs regarding the 18-month extension of Temporary Protected Status (TPS) for nationals of Somalia.

Introduction

The Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for 18 months, through March 17, 2010, to nationals of Somalia or people having no nationality who last habitually resided in Somalia. This extension does not apply to Somalis who entered the United States after Sept. 4, 2001. Certain nationals who have not previously applied for TPS may be able to apply under the late registration provisions.

Question and Answers

Question: What is Temporary Protected Status (TPS)?

Answer: TPS is an immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA) (or to persons without nationality who last habitually resided in the designated country). During the period for which … Read More »

Virginia Code section 19.2-120 provides that, before conducting a hearing on bail, release, or detention, the judicial officer must, to the extent feasible, obtain the person’s criminal history, as defined in section 19.2-119. A person held in custody pending trial or hearing for an offense or for civil or criminal contempt must be admitted to bail by a judicial officer unless there is probable cause to believe that: (i) he or she will not appear for trial or hearing or at such other time or place as may be directed; or (ii) his or her liberty would constitute an unreasonable danger to himself or herself or the public.

The judicial officer must presume, subject to rebuttal, that there are no conditions that can reasonably assure the appearance of the accused for trial and the safety of the public if the accused … Read More »

Where a couple was married 10 or more years and then divorce, each party will be paid the greater of his/her own Social Security benefit or a spousal benefit. Spousal benefits generally are equal to 50% of the primary wage earner’s benefit. The gender of the spouse is irrelevant, although historically this has had a greater impact on ex-wives.

It is important to understand that there is no impact on the primary wage earner’s benefit. If an ex-wife chooses spousal benefits based on her marriage to a former husband, it will not reduce the amount the ex-husband receives in Social Security.

For an example: assume Suzy and John are married over 10 years, then divorce. Suzy then marries Edward, stays married to him for over 10 years, then divorces Edward as well.

At retirement, Suzy will be entitled to choose the greatest of … Read More »

U.S. Citizenship and Immigration Services (USCIS) has naturalized the first nonimmigrant to enlist in the military under the Defense Department’s Military Accessions Vital to the National Interest (MAVNI) pilot recruiting program.

Dr. Brown* was the first nonimmigrant to sign a contract under the MAVNI program. He enlisted in the Army in April, and in June, he applied to become a naturalized citizen. One month later, he passed his naturalization test and recited the Oath of Allegiance becoming a citizen of the United States.

[* The name "Brown" is a pseudonym used at the request of the army.]

“This ceremony happened in record time because our military liaison team maintained close coordination with the Army and tracked Dr. Brown’s naturalization packet from the time he applied with our Nebraska Service Center until today,” said Debra Rogers, acting Deputy Associate Director of USCIS’ … Read More »

U.S. Citizenship and Immigration Services (USCIS) has issued guidance to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation prior to May 20, 2009.

If the Form I-129 was denied solely on the basis that the beneficiary did not possess a Master’s or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009 memorandum on “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation,” which provides clarification on the standards for H-1B health care specialty occupations. USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative.

USCIS is requesting that employers whose petitions … Read More »

The New York Times reports on an important change in U.S. asylum policies:

Moving cautiously, the Department of Homeland Security did not immediately recommend asylum for the Mexican woman, who is identified in the court papers only by her initials as L.R. But the department, in the unusual submission written by senior government lawyers, concluded in plain terms that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.”

As recently as last year, Bush administration lawyers had argued in the same case that in spite of her husband’s brutality, L.R. and other battered women could not meet the standards of American asylum law.

“This really opens the door to the protection of women who have suffered these kinds of violations,” said Karen Musalo, a professor who is … Read More »

Emergency protective orders can be issued in Virginia 24 hours a day, 365 days a year. An emergency protective order can be issued by any circuit court, general district court, or juvenile and domestic relations district court judge, or by any magistrate. Given the urgency of many situations, a law enforcement officer may request an emergency protective order orally, in person, or by electronic means. The judge or magistrate may issue an oral emergency protective order, which must be reduced to writing by the law enforcement officer who made the request.

Because of the emergency nature of family abuse situations, an emergency protective order can be issued ex parte, with no notice to the alleged abuser (the defendant). There must be reasonable grounds to believe that the defendant has committed family abuse against a family or household member and that there … Read More »

Department of Homeland Security (DHS) Secretary Janet Napolitano today announced the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department’s intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to … Read More »

Parents who take it upon themselves to deny visitation rights without following the proper channels through the courts, do so in violation of Virginia law. Even in cases of non-payment of child support, it is simply not appropriate for a parent to arbitrarily deny court-ordered visitation.

“My Ex Won’t Let Me See My Child!”

A parent who refuses to allow another parent visitation that has been court-ordered risks being found in contempt of court. If the offending parent does not comply with the order, by allowing the court-ordered visitation, that parent could face jail time or a fine.

If one parent believes the other parent should not have visitation, for whatever reason, the proper way to handle the situation is through the courts. If it is an emergency situation, such as violence or abuse, the court can award an emergency order followed by … Read More »

U.S. Citizenship and Immigration Services (USCIS) offers immigration services and resources specifically for members of the U.S. Armed Forces and their families who are stationed in the United States and abroad. USCIS established a military assistance team to ensure that the military community receives quick and secure access to accurate information. Below is a list of answers to frequently asked questions received by the USCIS military assistance team.

Questions and Answers

Question: I am a Conditional Resident, an active member of the U.S. Armed Forces, and have filed an Application for Naturalization (Form N-400), based on qualifying military service. My Conditional Residence is going to expire in the upcoming months. Do I need to file a Petition to Remove the Conditions on Residence (Form I-751), to acquire Permanent Resident status even if my Application for Naturalization is pending?

Answer: If you were … Read More »

An impromptu island theme filled the chapel at Camp Arifjan, Kuwaiton June 27, 2009, when 84 Soldiers and Sailors recited the Oath of Allegiance and became the newest citizens of the United States. This was the largest naturalization ceremony held in Kuwait to date.

Before the ceremony started, Army Spec. Tanu Liulamaga Tanu led the 41 citizenship candidates from America Samoa in traditional island songs.

“Two of my staff from Rome volunteered to travel to Kuwait to process the applications and conduct the citizenship tests,” said Lori Pietropaoli, U.S. Citizenship and Immigration Services (USCIS) Deputy District Director for Rome. “It was a memorable moment for all of us to hear them sing, and an even greater moment after the ceremony to hear them cheer after receiving their citizenship certificates.”

Brothers Dave and Douglas Satele and their cousin Ignosy Faafoi Toeava now share more … Read More »

Department Of Labor Releases FAQs For Final H-2B Regulations

The Department of Labor has released the following FAQs implementing final H-2B regulations for temporary labor certifications in the entertainment industry:

Question: I am an employer in the entertainment industry. We recruited our H-2B support personnel and filed pursuant to special procedures for entertainers. Now that the regulations have changed, are my special procedures gone?

Answer: The new H-2B regulations contain a provision that permits the development of special procedures. Where special procedures were in place prior to the effective date of the H-2B regulations (January 18, 2009), the Department will continue to honor those special procedures to the extent they are consistent with the new regulations. The special procedures contained in TEGL 31-05 will continue almost in their entirety. The Department will not, however, be able to honor the special procedures in areas … Read More »

U.S. Citizenship and Immigration Services (USCIS) has announced that individuals with a pending Form I-360 religious worker petition may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009).

Persons with pending Form I-360 religious worker petitions are immediately eligible to file a Form I-485 and/or Form I-765. Individuals whose applications are properly filed with appropriate filing fees and supporting documentation with USCIS by September 9, 2009 will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision. Failure to file prior to September 9, 2009, will result in the accrual of unlawful presence or unauthorized employment time.

Persons who want to file an Application to Register Permanent Residence or Adjust Status (Form I-485) and/or an Application for Employment Authorization (Form I-765)1 must mail the applications, with the required … Read More »

U.S. Citizenship and Immigration Services (USCIS) will commemorate America’s 233rd birthday by naturalizing more than 6,000 citizenship candidates in approximately 50 special ceremonies held across the United States and overseas. Five of these ceremonies are for members of the U.S. Armed Forces.

“There is no more important role we have as an agency than to welcome new citizens during naturalization ceremonies throughout the year,” said USCIS Acting Deputy Director Michael Aytes. “But on the Fourth of July, that role is even more profound as we proudly stand side-by-side with the newest Americans to celebrate our independence together as one family.”

This year, the week-long celebration by USCIS of citizenship is highlighted by various special events, including ceremonies on July 1 at the Sacramento Memorial Auditorium for approximately 800 candidates and on July 3 at Walt Disney World in Orlando, Florida, for approximately … Read More »

A custody or visitation order was entered a year ago, but now your ex-wife, who has primary physical custody of your son, wants to relocate to California with your son. What can be done? Is it possible to prevent your ex-wife from moving? Yes. Can you petition the Court to make you the primary physical custodian? Yes.

Pursuant to Virginia Code Section 20-124.5, in any custody and/or visitation order entered by a Virginia Court, a parent is required to provide the Court and the other parent at least thirty (30) days advance written notice of any intended relocation. Upon receipt of notice of relocation, if the non-relocating parent wants to contest the relocation, then he/she may do so. The non-relocating parent may seek appropriate relief from the Court. Litigation may be commenced by filing a Petition to Enjoin Relocation.

A Petition to … Read More »

U.S. Citizenship and Immigration Services (USCIS) announced today that, in partnership with the Federal Bureau of Investigation (FBI), it has met all milestones set forth in a joint business plan announced April 2, 2008, resulting in the elimination of the FBI National Name Check Program (NNCP) backlog.

“Our close partnership with the FBI has resulted in the accomplishment of this significant achievement with national security as its foundation,” said USCIS Acting Deputy Director Michael Aytes. “This continued working relationship will help to ensure that name check processing is accomplished as quickly as possible without compromising security concerns.”

The final goal of the business plan was to achieve a sustainable performance level by the NNCP of completing 98 percent of name check requests submitted by USCIS within 30 days, and the remaining two percent within 90 days. This performance level will become the … Read More »

U.S. Citizenship and Immigration Services (USCIS) announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2).

After an evaluation of its I-140 backlog reduction efforts and increased I-140 adjudicative efficiencies, USCIS has concluded that it is now able to provide Premium Process Service for this benefit.

USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of … Read More »

In alimony or child support cases, Virginia law allows the court to find a party is “voluntarily underemployed” and to calculate support based on a higher income than he or she is actually earning. As the Virginia Court of Appeals has written, “[a] court may under appropriate circumstances impute income to a party seeking spousal support. This conclusion logically flows from the principle that one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need…. A spouse may not choose a low paying position that penalizes the other spouse.”

Virginia Code § 20-107.1 directs the trial court to consider as a spousal support factor each party’s earning capacity. For child support, imputed income is a deviation factor listed in Virginia Code § 20-108.1(B)(3). The court must first determine the presumptive guidelines amount, … Read More »

U.S. Citizenship and Immigration Services (USCIS) has issued a guidance memorandum that provides USCIS adjudication officers with instructions related to the timing of job creation and the meaning of “full-time” positions in the EB5 Immigrant Investor Program.

Entering the U.S. on the basis of an investment (as opposed to a family or employment-based petition) can either take the form of a nonimmigrant (temporary) visa or an immigrant visa, which results in the Permanent Resident “Green Card.” The Permanent Residency route for an investor is known as the EB5 Investor Category. This category was created by Congress to allow foreign investors and their immediate family members to obtain permanent residency in the U.S. in exchange for investing in an employment-creation commercial enterprise.

In order to qualify for EB5 Immigration, the foreign investor must: 1) create a new business, 2) expand an existing business, … Read More »

For most uncontested divorces, the parties will need to execute a property settlement agreement, commonly known as a “PSA,” settlement agreement, or simply a separation agreement. With the growing availability on the internet of forms and samples for such documents, some people feel confident in drafting an agreement without the assistance of an attorney. These agreements may turn out to be valid and work for some people, but may result in financial disaster for others.

Language in a separation agreement may seem to have one meaning, but may have an entirely different legal meaning. As an example: John and Ellen sign a separation agreement stating they will “share” physical and legal custody of the child. However, Ellen keeps the children most of the time. Without knowing anything else about this agreement, Ellen may have opened the door for a smaller amount … Read More »

The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.

Since its enactment on Aug. 6, 2002, U.S. Citizenship and Immigration Services (USCIS) has provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA.

A memo issued April 30, 2008 made some substantive changes to how USCIS applies CSPA. On June 15, 2009, USCIS issued a Questions and Answers document under the new guidance:

Questions and AnswersQ. What is Child Status Protection Act (CSPA)?

A “child” is defined in the Act as an unmarried person under the age of 21. Prior to the enactment of the … Read More »

On June 10, 2009, the U.S. Embassy in Tegucigalpa, Honduras hosted the first naturalization ceremony ever held by the U.S. Citizenship and Immigration Services (USCIS) in Latin America.

“I can think of no greater privilege than to be the first to welcome as the newest citizens of the United States two American soldiers, who currently serve our nation in Honduras and who have each already completed two tours of duty in Iraq,” said Michael Aytes, USCIS’ acting deputy director.

Army Staff Sgt. Damien Milne, a native of the Marshall Islands, submitted his application for U.S. citizenship less than a month ago. On June 8, USCIS Honduras Field Office Director Emigdio Martinez traveled to Soto Cano Air Base and administered the naturalization test to Milne, which he aced. The new U.S. citizen now calls Killeen, Texas home.

Army Sgt. Carmen Villa, born in Mexico, … Read More »

Earlier this week, U.S. Citizenship and Immigration Services (USCIS) hosted a naturalization ceremony for 40 members of the military community on board the forward-deployed amphibious assault ship USS Essex.

34 Sailors, Marines, and Soldiers recited the Oath of Allegiance in the hangar bay of the Essex, along with one child and five spouses of military service men and women stationed in Japan.

After administering the Oath, USCIS Seoul, Korea Field Office Director Kenneth Sherman addressed the new citizens. “Your service in the United States military speaks volumes for your character and selfless service,” he said. “On behalf of a very grateful nation, we are proud to welcome you as fellow American citizens.”

“I am truly honored to be a part of this event today,” said Navy Capt. Brent Canady, commander of the Essex, as he delivered the keynote address. “It is fitting that … Read More »

Implementation of the final rule requiring federal contractors and subcontractors to begin using the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has been delayed until Sept. 8, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009. The rule was first published on Nov. 14, 2008 requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees.

If you require legal assistance with E-verify or any other immigration law matter, contact us to schedule your initial consultation with an experienced immigration attorney today. The immigration lawyers at Livesay & Myers, P.C. represent clients throughout Fairfax, Arlington, Alexandria, Manassas, Woodbridge and all of Northern Virginia, Maryland and the District of Columbia.

Individuals must obtain Advance Parole from U.S. Citizenship and Immigration Services (USCIS) before traveling abroad if they have:

been granted Temporary Protected Status (TPS);
a pending application for adjustment of status to lawful permanent resident;
a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);
a pending asylum application; or a pending application for legalization.

To obtain Advance Parole, individuals must file Form I-131, Application for Travel Document.

Advance Parole is permission to reenter the United States after traveling abroad. Advance Parole is an extraordinary measure used sparingly to allow an otherwise inadmissible individual to enter the United States due to compelling circumstances. By law, certain individuals must apply for a travel document and have Advance Parole approved before leaving the United States. Attempts to reenter the United States without prior authorization may have severe consequences since individuals … Read More »

U.S. Citizenship and Immigration Services (USCIS) officials traveled to Afghanistan this week to process applications and interview 125 members of the military who have applied to become U.S. citizens. These USCIS officials are on site to ensure that every eligible servicemember can participate in a special Memorial Day naturalization ceremony at Bagram Air Base in Afghanistan.

“These USCIS officers volunteered to deploy in support of our military men and women serving in Afghanistan,” said acting USCIS Deputy Director Mike Aytes. “It is a privilege to support our nation’s servicemembers in their pursuit of citizenship, and we are humbled by their selfless service to the United States.”

All immigrants who have served honorably in an active-duty status for any period since Sept. 11, 2001, are eligible to apply for citizenship under special provisions in the Immigration and Nationality Act. Since then, USCIS officers … Read More »

U.S. Citizenship and Immigration Services (USCIS) yesterday announced information on the number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 45,500 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of … Read More »

More details surfaced this week on the Administration’s proposal to expand concurrent receipt to service members who were medically retired, sometimes referred to as Chapter 61 retirees.

Under the Administration’s Omnibus proposal, all Chapter 61 retirees will become eligible for Concurrent Retirement and Disability Pay (CRDP) over a five-year period starting in January 2010. The expansion will come in two phases.

The first three years of the five year phase-in opens CRDP eligibility to the more severely disabled Chapter 61 retirees with less than 20 years of service.

On January 1, 2010, Chapter 61 retirees with less than 20 years of service and a VA rating of either 90% or 100% become eligible
On January 1, 2011, Chapter 61 retirees with less than 20 years of service and a VA rating of either 70% or 80% become eligible
On January 1, 2012, Chapter 61 retirees … Read More »

U.S. immigration policy hurts the nation’s competitiveness by forcing thousands of foreign graduates with sought-after skills and brainpower to leave the country, as pointed out by a new USA Today editorial.

As explained by USA Today, federal law limits the number of highly skilled foreign workers whom U.S. companies can hire under the H-1B program. Every April 1, U.S. companies file petitions to hire these individuals for the following fiscal year (beginning October 1).

In recent years, the cap of 85,000 (including 20,000 set aside for those with advanced degrees from U.S. institutions) has been reached within days, sometimes the first day.

Federal Reserve Chairman Ben Bernanke has now spoken out against this counterproductive system, telling a congressional panel, “[o]ur immigration laws discriminate pretty heavily against highly talented scientists and engineers who want to come to this country and be part of our … Read More »

U.S. Citizenship and Immigration Services (USCIS) reminds customers that Public Law 111-9, signed by President Obama on March 20, 2009, extends the date until Sept. 30, 2009 by which international medical graduates have to have been granted J-1 nonimmigrant status in order to later qualify for the “Conrad 30” program. Before this latest extension was granted, the most recent sunset date for qualifying J-1 admission was March 6, 2009.

Under the “Conrad 30” program, each state health department may submit a request directly to the Department of State (DOS) to initiate the waiver process for a J-1 medical doctor. This request enables J-1 doctors to obtain a waiver of the two-year foreign residence requirement, if DOS submits a favorable recommendation to USCIS and will generally be granted as long as there are no underlying concerns. Once the waiver is granted, J-1 … Read More »

On April 27, 2009, U.S. Citizenship and Immigration Services (USCIS) announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, the agency continues to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes … Read More »

“I logged on to her e-mail account and there are at least 20 e-mails from a Bill Morlok, who I have never met and do not know” or “I saw our cell phone bill and he has sent over 100 text messages to the same number I don’t recognize” is often enough “evidence” to convince a person their spouse is having an affair. Many people believe that showing continued communication with a mystery man or woman means an easy victory for granting a divorce on the ground of adultery. Unfortunately, it is not.

Virginia Law requires “clear and convincing evidence” that your partner has had sex with someone else, before the Court may grant you a divorce on the ground of adultery. To qualify as a divorce ground, your spouse’s affair must have become physical—culminating in sexual intercourse. Mental or emotional … Read More »

The applicability date of the final rule requiring federal contractors and subcontractors to begin using the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) have published an amendment in the Federal Register postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Obama Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

If you are an employer or employee requiring assistance with the E-verify program, contact us to … Read More »

On April 9, 2009, U.S. Citizenship and Immigration Services (USCIS) announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, the agency continues to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes … Read More »

Today, the nation’s two major labor federations, the A.F.L. – C.I.O. and Change to Win, agreed for the first time to join forces to support an overhaul of the immigration system.

The accord reached by the two federations today endorses comprehensive immigration reform that includes a path to citizenship for undocumented workers.

The following is a statement by Angela Kelley, Director of the Immigration Policy Center in Washington, D.C.:

“Today’s announcement from the country’s most powerful labor federations serves as yet another signal that the momentum for immigration reform is building, and the muscle behind it is growing stronger. We applaud the leaders of the A.F.L.- C.I.O and Change to Win labor federations for providing constructive input and coming together to support a comprehensive solution to our broken immigration system.

Labor’s alliance on this issue adds to increasing evidence that immigration reform and economic … Read More »

Spousal support (alimony) is often the toughest nut to crack in a contested divorce in Virginia. More and more, Virginia Courts seem to be relying on some “local guidelines” in determining spousal support– guidelines that seem to favor the payor of support.

The spousal support issue arises in any Virginia separation or divorce case where the parties have been married for any substantial length of time and there is a significant gap in the parties’ income. When spousal support comes into play, the parties and their attorneys (and the Court, if the parties cannot agree) have to sort out (a) how much spousal support should be paid, and (b) for how long. I won’t get into the “for how long” issue here– perhaps I’ll address that in a future post. But I do want to talk about the “how much” question.

With … Read More »