Estate Planning
Estate Planning
Statutory Durable Power of Attorney:
These powers of attorney authorize your appointed agents to make financial decisions on your behalf as long as you are alive. You have the option of making these powers effective immediately after you sign it, or delaying the effectiveness until you become mentally incapacitated.Medical Power of Attorney:
These powers of attorney grant your selected agents the authority to make a broad variety of health care decisions if you are incapacitated. These decisions include consenting to surgery, checking you into a nursing home or hospital, obtaining your medical records, and terminating life sustaining treatment.Directive to Physicians and Family Surrogates (Living Will):
This document provides direct instructions to your doctor under specific circumstances, in terms of life-sustaining treatment. If you are suffering from a medical illness or condition that you will not survive, this documents tells the doctor to provide only those treatments needed to keep you comfortable.Declaration of Guardian:
These documents serve as a backup to the two powers of attorney previously mentioned. Although the powers of attorney generally avoid the need for a guardian, if a guardian is appointed for you by the court, the guardian could have authority to revoke those instruments. If a guardianship administration is instituted in court for you by any party, this document will help ensure that the court appoints as your guardian the same person that you have otherwise decided to entrust with your affairs.Even though most of us never want to consider what may happen after our passing, death is inevitable. To protect our loved ones, we should begin the necessary preparations as soon as possible, regardless of our age or income. Thorough and responsible preparation begins with the creation of a Will. Have you considered how you will protect your family? Do you know and agree to how your assets will be disposed of after you pass?
What is a Will?
A Will is an individual’s legal declaration of an outright disposition of his assets at death. The Texas Probate Code defines a Will as including a codicil, and a testamentary instrument which merely appoints an executor/guardian, directs how property may be disposed of, or revokes another Will.Who can create a Will?
Any person over the age of 18 years, or who has been married, or who is a member of the armed forces of the United States, and has testamentary capacity (also known as sound mind), can create a Will.Do I need a Will?
If you meet the above requirements, the answer is yes. Having a valid Will in place during your lifetime can help make administration and distribution of your estate easier for your family that you will leave behind after your passing. You should be concerned with what happens to your property and in whose hands your property ultimately falls. It is because of this concern that a Will is an excellent idea for almost everyone who has the capacity to make one.A well-drafted Will may contain a trust for minors and incapacitated persons, but without that trust an expensive, cumbersome guardianship is the result. Also, a well-drafted Will provides for a contingent beneficiary in the case the primary beneficiary you had left the bulk of your assets to passes before you do. The scenarios are endless. No one can predict who in their family will pass first. That’s why Estate Planning is a very personal decision and the appropriate provision to be included in your Will depends upon your family dynamics and your objectives. Having a properly drafted Will can help. Thus, you should contact an attorney to assist you.
B-1, Visitors for Business:
One who has no intention of abandoning foreign residency and is a coming to the U.S. temporarily for business purposes may be eligible for a B1 visitor visa. For the most part, a visitor cannot be gainfully employed but can engage in commercial transactions such as negotiating contracts, consulting with clients or business associates. Other examples include those participating in educational, professional, scientific, religious, business conventions or litigating.
This category is available, subject to very specific requirements, to personal and/or domestic attendants of certain nonimmigrants and U.S. citizens who hold international jobs. These attendants must obtain separate work authorization documents. Foreign medical students may also be granted the B-1 visa and status for unpaid rotations. It is appropriate on a limited basis for missionaries as well as certain ministers exchanging pulpits.
In addition to the requirements common to all applying for the visitor visa to the United States, B-1 visa applicants must show that business activities primarily benefit a non-U.S. based company.
Initial admission: 1 year maximum with 6-month extension.
B-2, Visitors for Pleasure:
One who has no intention of abandoning foreign residency and is coming to the U.S. temporarily for pleasure/vacation may be eligible for a B2 visitor visa. These include individuals coming as tourists, for social visits to friends/relatives, health purposes, participants of social organizations, participation in amateur sports, music and related events etc. Employment is not permitted.
In addition to the requirements common to all applying for the visitor visa to the United States, B-2 visa applicants must show the U.S. visit is purely temporary and for activities permitted under the B-2. If for medical treatment, documentation of the need for treatment in the United States and the financial ability to pay for the treatment.
Initial admission: 1 year maximum with 6-month extension. Most of the time, B-2s are automatically admitted for 6 months.
Change of status to other nonimmigrant categories are allowed, including E-2, H-1B, H-4, F-1, L-1, and other visa categories, however, there is generally a 60-day period in between the date of admission and the application period which is highly recommended.
E-2, Treaty Investor Visa
The E-2 treaty investor visa is a nonimmigrant visa, available to foreign nationals from countries which have a bilateral investment, commerce and navigation treaty with the United States. Such countries include: Pakistan, Argentina, Armenia, Morocco, Mexico, Canada, Chile, Iran, Greece, Philippines, Jordan, Turkey, United Kingdom, and many more. An E-2 visa can be granted for 5 years from the Embassy or 2 years if applied within the U.S, and can be renewed indefinitely
Individuals who qualify must make a substantial investment in a new or existing U.S. company. They are also required to come to the U.S. to develop and direct the operations of the enterprise in which they have invested. At a minimum, the applicant/foreign national must own 50% or more in the same company.
Visas are issued for mostly all types of business enterprises, including convenience stores, motels, property management companies, gift shops and food franchises.
With an E-2 visa, you along with your spouse and any children under 21 years of age may come and stay temporarily in the U.S. Additional benefits include working in the United States for the same U.S. company that is the subject of the investment. Also, your spouse can work once he/she files for and obtains work authorization. This visa will allow you to travel in and out of the country as long as you maintain a valid E-2 visa.
For foreign nationals already in the U.S., this may be good visa option for those with a status as B-1/B-2 visitor visa and F-1 student visas who are looking to change their status without having to return back to their home country.
F-1 and M-1, Student Visas
F1: Temporary visa allowed for students who are coming to the U.S. for educational purposes are known as F1 visas. They must be enrolled in full-time studies with the school, present a SEVIS Form I-20 issued by the school and show sufficient financial support.
Duration of status for those on F-1 visa: all students will be admitted a maximum of 30 days prior to the program start date. D/S means the duration of studies/educational requirement; thereafter, they have 60 days to depart the U.S., transfer to another school, or change status (for example, to H-1B).
F-1 visa holders must demonstrate the following:
- Acceptance to study at an established college, university, or other academic institution or in a language training program in the United States approved by the Attorney General
- Ability to demonstrate status as a bona fide student with nonimmigrant intent and strong ties to the home country
- Ability and credentials to qualify for the intended full course of study in a SEVP certified institution
- Proficiency in the English language may be a requirement depending on the course of study and evidence of sufficient funds to attend the university or college to which she/he has been admitted to study and live in the United States for the duration of the program
F-1 Reinstatement: Students may be reinstated by filing an I-539 along with SEVIS Form I-20 if they can demonstrate them:
- ) Have not been out of status for more than 5 months or that there were exceptional circumstances and the request was filed promptly,
- ) No record or willful violation of Service regulations,
- ) Intending to pursue a full course of studies,
- ) Not engaged in unauthorized employment,
- ) Not deportable on any other ground other than being out of status,
- ) And demonstrated that violation resulted from circumstances beyond their control (ex: natural disaster, institute closure, serious injury or illness, etc.)
M1:
Temporary visa allowed for vocational studies or other nonacademic curriculum (including language training) are known as M1 visas. M-1 includes flight schools, cooking schools, etc. Requires full-time studies and same general criteria as required for F-1 students. Reinstatement is allowed (same requirements as above).
H-1B Specialty Occupation Visas
H-1B is a temporary visa for those coming to the U.S. to work in a specialty occupation or as a fashion model of distinguished merit.
“Specialty occupation” positions must meet one of the following requirements:
- ) The minimum entry requirement for the position is normally a bachelor’s or higher degree or its equivalent,
- ) The degree requirement is common to the industry or the position is so complex or unique that it can be performed only by an individual with a degree,
- ) The employer normally requires a degree or its equivalent for the position, or
- ) The nature of specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. 8 CFR 214.2(h)(4)(iii)(A).
“Specialty occupation” includes the definition of “professional” – which includes: accountants, computer programmer, fashion designer, dietician, human resources manager, marketing research analysts, minister, librarian, software design engineer, teacher, etc.
It is important to note that an employee who has previously received an H1B visa or been granted H1B status is generally exempt from the numerical limitations. In addition, an employee who is presently employed in H1B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer. Also, the spouse and minor children of an H1B employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.
For H1B cases, the Petitioner, as the employer, must be a company or business willing and able to sponsor the beneficiary as well as make payment of fees. The petitioner must apply for a Labor Condition Application (LCA) that is obtained and certified by the Department of Labor (DOL).
An approved H-1B is valid for up to three years, but it can be extended. Prior to the expiration, the employer may apply for an extension of stay or a different employer may petition on behalf of the temporary worker. At the end of the 6 year period, the alien must seek status as a permanent resident or depart the U.S. If they depart, they must remain outside the U.S. for at least a year before reentering on a new H1B.
Numerical Cap: The Cap for H1b visas is 65,000 per year less the Free Trade Visas for Chile and Singapore resulting in 58,200 visas; this does not include an additional 20,000 for those with masters or higher degrees.
J-1, Exchange Visitors
The J-1 visa is a nonimmigrant status for an exchange visitor wishing to stay temporarily in the U.S. There are a number of different programs included in the J1 visa category: trainee, student, professor or research scholar, short-term scholar, non-academic specialist, foreign physician, international visitor, teacher, government visitor, camp counselor, au pair or summer student in a travel/work program.
The exchange visitor (J) nonimmigrant visa category is provided for persons who are approved to participate in exchange visitor programs in the U.S., under provisions of U.S. immigration law. This means that before you can apply at a U.S. Embassy or Consulate for a J visa, you must first apply, meet the requirements, and be accepted for one of the Exchange Visitor Program categories through a designated sponsoring organization.
A J-1 applicant must be fluent in English and maintain sufficient funds and adequate medical insurance.
K-1, Fiancé Visa
A fiancé of a U.S. citizen is allowed to enter on a nonimmigrant visa, known as a K-1 visa. The criteria are that the fiancé enters the U.S. solely to conclude a valid marriage with the petitioner (U.S. citizen spouse) and must marry within 90 days after entry.
The U.S. citizen spouse will file a petition with the USCIS Service Center in the U.S. and the beneficiary (fiancé) is interviewed abroad at the consulate. Any minor children of the fiancé can accompany them with a K-2 visa. Work authorization is allowed for individuals with K1 and K2 status.
Even though it is a nonimmigrant visa, a K1 acts as an immigrant visa in that once the beneficiary has married the petitioner, he/she can apply for the green card while in the U.S. If the marriage does not take place, however, the beneficiary must return back to their home country.
Once the green card is obtained, it will be conditional residency green card for two (2) years after which they must obtain legal permanent residency status through lifting conditions, which can be filed within 90 days prior to the expiration date on the green card.
K-3, Spouse of U.S. Citizen
K-3 visa is a nonimmigrant visa permitting the spouse of a U.S. Citizen who is the beneficiary of a currently pending I-130, Relative Petition, to come to the United States to await the approval. It also allows for minor children of the sponsored spouse to be admitted to the U.S. on a K-4 nonimmigrant visa while waiting for the processing for permanent residency to be completed. Work authorization is granted for those in K3 and K4 status.
Once admitted to the United States, K-3 nonimmigrants may apply to adjust status to a permanent resident at any time. It is important to note the following limitation: the Department of Homeland Security only admits K-3 or K-4 nonimmigrant visas holders for a 2-year period. K3 or K4 nonimmigrant visa holders may apply to USCIS for an extension of status in 2-year increments as long as the marriage-based I-130 visa petition or a corresponding application for adjustment of status or visa application is still pending adjudication.
Once the green card is obtained, it will be conditional residency green card for two (2) years after which they must obtain legal permanent residency status through lifting conditions, which can be filed within 90 days prior to the expiration date on the green card. If the couple has been married for more than 2 years at the time of approval, the spouse will receive 10 year permanent resident card.
L-1, Intercompany Transferees
The L1 category applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers come to the U.S. as intracompany transferees who are coming temporarily to perform services either 1) in a managerial or executive capacity (L-1A) or 2) which entail specialized knowledge (L-1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad.
The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify.
Terms/Admission: If new office, can initially only be approved for one year but can be extended. Otherwise, the petition is approved for 3 years with a 7-year maximum for L1A and 5 –year maximum for L1B.
Dependents (spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Dependents may be students in the U.S. while remaining in L2 status. Dependent spouses may apply for work authorization.
If an L-1A subsequently seeks Legal Permanent Residence (LPR) status he may apply through EB-1 without the need for a labor certification. A person of specialized knowledge, however, will need a labor certification to obtain LPR status.
O-1 and O-2, Extraordinary Ability & Athletes Visa
The O visa category is reserved for:
- Aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1),
- The artist’s or athlete’s support staff (O-2), and
- The O-1’s spouse and/or children (O-3).
- To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement.
Extraordinary ability in the field of arts means distinction – a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor.
To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
O-1 cannot petition for themselves and therefore requires a Petitioner or agent. Their spouse and children can receive a O-3 visa.
Terms/Admission: Period of authorized stay for O visa category is for such time as determined by USCIS to accomplish the event or activity, but not more than 3 years. The beneficiary can be admitted 10 days before and stay until 10 days after the validity period, but cannot work during that period.
P Visa –Performer Visas: Performing groups, athletes, and culturally unique performers, teachers, and coaches
P-1 Visa classification is available to entertainment groups, individual athletes, and athletic teams. Specifically, they must meet the basic standard of international recognition – meaning “a high level of achievement in the field evidence by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.” 8 CFR §214.2(p)(4)(iii)(B) lays out the required evidence necessary to be accompanied with the application. For the most part, the P-1 classification has a 75% rule – meaning only 75% of group members must have had a sustained and substantial relationship with the group for at least a year (exceptions may apply).
P-2 Visa classification is reserved for artists and entertainers who perform individually or as part of a group, pursuant to a reciprocal exchange program between one or more U.S. organizations and one or more such organization in another country that provides for the temporary exchange of artists and entertainers. Despite their potential, the only active P-2 programs at the moment may be those established and operated by Actors Equity (with its British and Canadian counterparts) and the American Federation of Musicians (AFM) (with its Canadian counterpart).
P-3 Visa classification is accorded to culturally unique artists and entertainers, individually or as a group, coming to the United States to develop, interpret, represent, coach or teach their particular art or discipline. According to the Federal Regulations, culturally unique means a “style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other groups of persons”. Expert affidavits, testimonials, and a written advisory opinion, along with additional supporting documents must be included in the petition.
All P categories allow for “essential support personnel” (they are not performing). These individuals are highly skilled and are integral to the performance of the P alien because the alien performs support services that cannot readily be performed by a U.S. worker and that are essential to the success of the performance. Note: the separate petition is required, either in conjunction with the P visa petition or subsequently after.
Admission in all P categories is limited to a specific competition, event, or performance – defined as an activity such as an athletic competition or season, tournament, tour, exhibit, project, entertainment event, or engagement. Also, premium processing is available, for those needing an expedited response from USCIS.
R-1, Religious Workers
R visas are nonimmigrant visas for ministers, persons working in a professional capacity in a religious vocation or occupation (nuns, monks), or persons working for a religious organization in a religious vocation or occupation. Also, in order to qualify, the foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of the petition and must provide evidence of the same.
Petitions for an R-1worker must be filed by a prospective or existing U.S. employer. An R-1 visa cannot be issued at a U.S. Embassy or Consulate abroad without prior approval by USCIS. There are certain general requirements which must be satisfied by the petitioning organization as well as by the religious worker, the beneficiary of the petition. Such documentation includes proof of tax exemption of U.S. organization or documentation required to obtain tax-exempt status, a letter from authorized official employing the worker, and proof of any previous R-1 employment.
R-1 worker’s spouse and unmarried children under the age of 21 may be eligible for R-2 classification. The dependents of an R-1 worker may not accept employment while in the United States in R2 status.
Terms/Admission: entry is limited to 5 years. Initial admission is for 3 years. After 5 years, must reside and be physically present outside the U.S. for one year, to be eligible again.