The Livesay & Myers, P.C. Blog

The Cap Gap Extension for F-1 Students

Posted on October 11th, 2017, by Karen Williams in Immigration Law. No Comments

Every year, many foreign national F-1 students try to change from F-1 student status to H-1B status after they complete a program of study or period of optional practical training (OPT). Since OPT generally requires employment with a U.S. business or organization, this usually coincides with the filing period for H-1B status which occurs during the first week in April. H-1B status allows foreign nationals with a bachelor degree or higher to work in the U.S. in specialty occupations.

The number of people who can obtain the H-1B status is regulated by a numerical limit, or “cap,” each fiscal year—which runs from October 1st to September 30th. The cap is set at 65,000 plus an additional 20,000 reserved for those with master degrees or higher. Note not all H-1Bs are subject to the cap. Institutions of higher education or their related … Read More »

Enforcing Islamic Marital Agreements in Virginia Courts

Posted on September 22nd, 2017, by Shirin Afsous in Family Law. No Comments

Divorce proceedings are emotionally and financially taxing, but the complexity of the process increases significantly with added cultural issues surrounding the marriage. In Islamic cultures, the bride and groom enter into a marital agreement either on or shortly before the wedding date. This contract includes the promise of a gift from the groom to the bride, which is called mahr. The bride may claim the gift at the time of marriage, or at any later date of her choosing. The mahr is the wife’s separate property and the husband has no legal claim to it. Different cultures prescribe various forms of mahr, but generally the contract includes a future promise, at an unknown date, of gold or money. It is pertinent to note that mahr is not a price that the groom pays for the bride, but rather, a gift from the husband … Read More »

Co-Parenting and Virginia Custody Cases

Posted on September 19th, 2017, by Sarah Patras in Custody, Family Law. No Comments

If you are facing a custody or visitation case in Virginia, it is especially important that you maintain and strengthen your co-parenting skills. Doing so will benefit your children, and can only help you in court.

As a parent, it is human nature to put your children’s needs first in every part of life. In Virginia, courts adopt this same view when making determinations regarding child custody and visitation. Virginia courts are statutorily required to take each of ten “best interest factors” into consideration before making a ruling. Although all the factors are important, two factors may have swaying power when the court is faced with two genuinely good parents:

“[t]he propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;” … Read More »

The Elimination of DACA

Posted on September 7th, 2017, by Jennifer Varughese in Immigration Law. No Comments

As of September 5, 2017, the Deferred Action for Childhood Arrivals (DACA) program has been eliminated. As discussed previously on this blog, DACA, created in 2012, allowed certain individuals who entered the U.S. under the age of 16 to obtain a work permit and remain in the U.S. without fear of deportation. An estimated 800,000 youngsters are DACA recipients. According to the Legal Aid Justice Center, 12,134 DACA recipients reside in Virginia alone with some 1,280 enrolled in a Virginia college and an estimated 10,557 in the labor force.

Here are the most important facts you need to know regarding the elimination:

New DACA applications will no longer be accepted by U.S. Citizenship and Immigration Services (USCIS).
DACA-based travel documents, known as Advance Parole, will no longer be accepted. Renewal applications will be accepted until October 5, 2017 for those whose benefits expire on … Read More »

Green Cards for Native Americans Born in Canada

Posted on September 3rd, 2017, by Karen Williams in Immigration Law. No Comments

Under section 289 of the Immigration and Nationality Act (INA) a Native American Indian born in Canada may be entitled to lawful permanent resident status in the United States if they meet certain requirements. This provision of the INA incorporates one of the agreements contained in the “Jay Treaty” signed between Great Britain and the United States in 1794. The treaty provides that Native Americans may freely trade and travel between the United States and Canada (which was then a territory of Great Britain).

Under INA § 289, a Native American Indian born in Canada who seeks to gain permanent residency in the United States must inform the Customs and Border Patrol (CBP) at the port of entry that he or she is a Native American Indian seeking to live in the United States permanently, and must support that request with documentation. … Read More »

Prudential Revocation of Nonimmigrant Visas for DUI Arrests

Posted on July 17th, 2017, by Karen Williams in Immigration Law. No Comments

On November 5, 2015 the U.S. Department of State (DOS) implemented a policy which required consular officers to revoke the nonimmigrant visas of foreign nationals convicted of, or merely arrested for, driving under the influence, driving while intoxicated, or any similar crimes that occurred within the last five years as stated in 9 FAM 403.11-3(A). Once the DOS is aware of the alcohol-related incident, the consulate is suppose to contact the foreign national and provide notification of the revocation. The revocation occurs regardless of whether the foreign national can be reached for notification. In cases where the foreign national cannot be reached for notification, they may only become aware of the revocation when they depart the U.S. and try to re-enter with the same visa.

In September of 2016 DOS issued updated guidance on how to implement the new policy, which … Read More »

Third-Party Custodians and Adoption in Virginia

Posted on July 10th, 2017, by Anne Prentice in Family Law. No Comments

In Virginia, a grandparent, relative, or other interested party may seek and receive a court order granting them legal and physical custody of a child in their care. Such an order would give the custodian a feeling of security that the child cannot be taken from them unless a parent seeks to modify the custody order, in which case the custodian would presumably have an opportunity to object and have their day in court. However, under the Virginia Adoption Statute, that may well be a false sense of security. Under that act, parents who have lost custody nevertheless maintain their residual parental rights, including the right to consent to an adoption. The end result, as I will explain in detail below, is that third-party custodians with legal custody may actually lose the children in their care to an adoption without any notice or … Read More »

Impact of Leaving Children Home Alone on Your Custody Case

Posted on July 5th, 2017, by Jonathan McHugh in Custody, Family Law. No Comments

It is very common these days for both parents to work outside of the home, whether on a part-time or full-time basis. For many parents, this requires a juggling of responsibilities and it also requires making sure that children are supervised and looked after appropriately. It is difficult enough for many parents to find the appropriate care for their children when two parents are living under the same roof; however, the situation becomes even more complicated when parties are separated or divorced.

While Virginia law does not provide a specific age at which you can leave your child at home alone, many Virginia counties set their own guidelines for supervision of minor children. These guidelines are typically drafted and developed by social workers and other community members. These county-specific guidelines are not laws; however, not following them can have legal implications.

Virginia courts … Read More »

Which Court Should You File In?

Posted on June 26th, 2017, by Livesay & Myers, P.C. in Custody, Divorce, Family Law. No Comments

Many family law clients ask the same question during their initial consultation: “which court should I file in?” In Virginia, both the juvenile and domestic relations district court (“J&DR court”) and the circuit court handle family law cases. The J&DR court has the power to hear matters concerning custody, visitation, child support, and spousal support. The circuit court can hear all of the same issues, in addition to divorce and equitable distribution.

Unmarried couples with children must file in the J&DR court for custody, visitation, and child support to be determined. For couples who are divorcing, there are factual, procedural, and strategic considerations that come into play when determining which court to start in. Generally speaking, if one of the parties has grounds for a divorce, it may make more sense to begin the matter in circuit court, but this is … Read More »

Change in Virginia Family Law Regarding Life Insurance

Posted on June 20th, 2017, by Brianna Salerno in Family Law. No Comments

A new law goes into effect in Virginia on July 1, 2017, giving courts the authority to order a party paying spousal support to maintain an existing life insurance policy for the benefit of the payee spouse. This change to Virginia family law will come from a new statutory provision, Va. Code § 20-107.1:1.

The existing life insurance policies must be on the payor spouse’s life, not the payee spouse’s life. Additionally, the policy must have been issued during the marriage, through the insured’s employment, or be within effective control of the insured provided that the insured party has the right to designate a beneficiary during the marriage and the payee is a party with an insurable interest.

This new Virginia code provision effectively overrules the holding under Lapidus v. Lapidus, 226 Va. 575 (1984). In Lapidus, the Supreme Court held that nothing … Read More »

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