What a Republican Win Means to Me

So the Republicans won last week and we know that candidate Lisa Murkowski from Alaska may have lost, largely because her name was misspelled by the voter and could not have been counted. Sow what does a Republican win mean for immigration? If Republicans are pro-business, that means that business may start humming again largely due to the fact that the uncertain legislative climate is behind us. The 4,000+ changes brought about by health care reform and wall street reform had businesses reeling, trying to play catchup with compliance.

A Republican win also means that enforcement at the border and against businesses will remain at the same high level of execution. So there may be a better business climate leading to more hiring and causing businesses to bring over more foreign workers, provided they did not take TARP funds (bailout funds) from the federal government or have repaid the funds. Right now, businesses are not hiring foreign nationals because they are busy laying off workers. Enforcement business has been steady in immigration, whether it is deportation of out of status foreign citizens or punishing businesses employing foreign citizens without work visas.

I also practice estate planning. For CPAs and lawyers and the IRS, working in this area means the uncertainty of 2010 carry over basis may be over! Finally we will go back to having $3.5 million of exemption from federal estate taxes, so my Missouri estate planning clients will now have more advice from me, other than “please don’t die in 2010!” Congress still has to enact new law to give effect to my dreams, but I can dream now! As a small business owner, I heave a sigh of relief! Now I think I will stop working for Uncle Sam until June. When you are a small business owner, you wear many hats: lawyer, parent, tech geek, accountant and even counselor. I had to hire a service to process payroll because it was consuming too much time and I was never sure I had the numbers correct. If you pay too little, the fines and penalties can really add up from the State and Federal tax man.

So I freed up some time to actually practice law. We need less government and more private enterprise. More money in my pocket as a small business, and I may actually be able to hire another person in the office. What a revolutionary thought!  When you think about unemployment, there is a structural unemployment of 5.5%; total unemployment 11%. Structural unemployment means joblessness caused not by lack of demand, but by changes in demand patterns or obsolescence of technology; and requiring retraining of workers and large investment in new capital equipment. So there were already 51.5% of the population of the US not working when the recession started in 2007. Now there are 5-6% more. Look at it another way: 89-90% of persons employable are working. Maybe when you wake up and see the unemployment number you will feel better about your situation. I see people who have lost their jobs. These people are on a work visa or are awaiting a grant of permanent residency. For these people, it is a precarious living, made worse by the fact that their very existence in this great country is jeopardized by being jobless. Perhaps an enlightened immigration policy that favors business will be enacted by the new Republican party in power. I can dream can’t I?

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Enjoying Your Life

I guess you could ask me why I am writing about enjoying life rather than about some legal topic that I usually blog about. I have realized that I need to enjoy my life in order to enjoy coming to work everyday and dealing with clients’ problems. So how do I enjoy life?  Friends online and in real life; exercise and the outdoors. This weekend I went to Forest Park in St. Louis, Missouri. I rented a paddle boat, the kind you paddle with your feet. It is a lot harder than it looks! The day was beautiful, the fountains were spewing water everywhere, and the wind carried the spay with it! As I watched, four wedding parties came and went, took pictures with their friends, jumped in the air for an action shot. It took me about an hour and twenty dollars, but it was invigorating and renewing. Just the thing I needed to face Monday.

Fall colors at Creve Coeur Lake Park, Creve Coeur, Missouri

Forest Park Lake, St. Louis, Missouri

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Birthright Citizenship

Recently my sister sent me an article by James Walsh on birthright citizens. While I was researching this topic, I came across an article in the Huffington post, which stated that Senator Mitch McConnell felt that there was no harm in looking into why foreigners were coming to the US for the express purpose of having their babies on US soil so that the babies could be US citizens under the 14th Amendment of the US Constitution. Was this a big problem? I did not know. Recently, James Walsh commented that, “The nation looks to the U.S. Congress to remedy fraudulent naturalizations and the Supreme Court to clarify the jurisdictional question of automatic birthright citizenship”. George Will wrote in The Washington Post that, “If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration — and had anticipated huge waves of illegal immigration — is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not.” Both James Walsh and George Will are caught up in the phrase “jurisdictional question of automatic birthright citizenship” (and in some fashion that naturalization is handed out like candy to unqualified legal permanent residents). So what does the phrase ‘subject to the jurisdiction’ mean? For that we have to examine some principles of US law. United States law combines jus soli, meaning citizenship by birth in a nation’s territory, and jus sanguinis, meaning citizenship by descent, i.e. parents who were citizens. Before the Declaration of Independence in 1776, residents of the 13 original colonies were British citizens. After Independence, these persons could choose to remain a British subject or become a citizen of one of the 13 States. At this point there was no US citizenship by birth. The original Constitution only said that the American President had to be a citizen and ‘natural born’. But the terms ‘citizen’ and ‘natural born’ were not defined anywhere. Recently, the issue of ‘natural born’ featured prominently as an issue for both Presidential candidates in 2008. Senator McCain was born in the Canal Zone in Panama of US citizen parents. In 2008, a legal scholar Professor Gabriel J. Chin argued that McCain did not become a citizen until a year later in 1937, when Congress passed a law to confer US citizenship on Canal Zone born children. Until 1937, these children fell into a gap in law conferring US citizenship on children born to US citizen parents. Similarly, President Obama was also thought not a US citizen for failure to produce his Hawaiian birth certificate. But this blog is about who has birthright citizenship. Clearly from these examples, you have to be born on US soil and territory to be a US citizen, to be ‘natural born’. The 14th Amendment, Section 1 states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. Until the 14th Amendment, slaves and their descendants were not US citizens; American Indians were still held to be non citizens because they were born in territory that was not subject to the jurisdiction thereof. This anomaly in the law was changed by subsequent law. So now a Native American becomes a US citizen at birth. Persons born in Puerto Rico, Gaum and US Virgin Islands are also citizens. Only birth in American Samoa and Swains Islands does not confer US citizenship, although these persons may call themselves US Nationals! In the last few decades of the nineteenth century, Chinese born immigrants, who were legal permanent residents (now commonly called ‘green card’), were ineligible by law to become US citizens. In US v. Wong Kim Ark, in a decision after the 14th Amendment was passed, the US Supreme Court held that Ark was a US citizen because he was born in San Francisco and had not “either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom”. In 1985, authors Peter H. Schuck and Rogers M. Smith, wrote that the phrase in the 14th Amendment ‘subject to the jurisdiction thereof‘, should be re-interpreted to exclude children of persons who did not have green cards. In other words, children of persons who were here legally in the US on a non-immigrant visa, and those who were here illegally, should not be able to become US citizens by virtue of their birth in the US; they were not subject to the jurisdiction thereof, and they owed foreign allegiance. The New York terrorist attacker Faisal Shasad stated when he took the oath of citizenship, he did not mean it–he said it for convenience!!! While I, as a naturalized citizen, recoil at that statement, as an immigration attorney, I am even more incensed! His statement casts a dark shadow over all naturalizations. We should probably revisit the phrase in Ark, done anything to renounce his allegiance…’, when we try to re-evaluate the tenets of birthright. My point is to all the lawmakers and naysayers who want to amend the 14th Amendment by restating the phrase ‘subject to the jurisdiction thereof‘. Don’t throw out the baby with the bathwater.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Do you have to pay Estate Tax in 2010?

Since 2000 I have heard the mantra over and over again, ‘if you die in 2010 you don’t have to pay estate tax. Even Bill Gates does not have to!’ Well, the truth of the matter is that even if he, or for that matter ‘you’, died in 2010, your heirs may not pay estate tax, but they may be liable to pay a tax on the difference between what you paid for the asset and the sale price of the asset. In layman’s terms, if grandma bought a house for $40,000, died in 2010, and you inherited the house and sold it for $100,000, then you owed the government taxes on the difference of $60,000. So in lieu of an estate tax, there is a ‘carryover basis’ of valuing the asset at date of death. The reality is that there is a ‘step up in basis’ of $3.5 million that a surviving spouse can claim. So maybe there is no tax; but the problem is that the IRS has not set out any rules, issued any federal regulations or forms to cover the eventuality of dying in 2010. No one expected the inaction of Congress on the matter. So CPAs, estate planning lawyers and the IRS are left wringing their hands over the inaction. And more complications for residents of states that levy a state estate tax, that may have not been repealed along with the repeal of the federal tax. In Missouri, there is no estate tax. If you have property in Illinois, there is an estate tax on estate valuations over $2.0 million. So farmland may be affected or even real estate developers dying in 2010 who may owe no federal estate tax, but may owe Illinois estate tax. The irony of the matter is that a taxable estate of over $5 million would pay federal estate tax of $675,000 in 2009 and $1,653,400 in 2011, if Congress does not change the law. This affects farmers and other growers, small business persons; people who do not fit the ‘rich’ mold. But the larger the estate, the lower tax the estate would be liable to … estates of $50 million would pay $20.9 million in 2009 and less than $20 million in 2011, if the law is not changed! I don’t think that that is what was intended. So in 2011, the federal government will collect more federal revenue on inheritance money than it did in 2009. In 2011, the largest estates would pay less as a percentage of value. Warren Buffet must be smiling.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Getting Clients in a Down Economy

Remember I was on the fence about Facebook? Well I have decided to join the bandwagon. What made me change my mind? I teach law practice management at St. Louis University Law School, in St. Louis, Missouri, as an adjunct professor. A fellow lawyer at my class changed my mind for me. I guess I can be a lawyer, present a friendly, ‘get to know you’, ‘I too have the same problems like you’ facade; friend my clients and friends and still continue to maintain my dignity and private life. Who knew? I am exploring the settings on Facebook, so that I can feel good about connecting without compromising. My caveat, of course, is don’t give any legal advice. I have both a personal page and a page for my business. Still sparsely populated, but both pages will get there. So this is an invitation to friend me and become a fan.

I am slowing embracing the Facebook jargon. The story the lawyer told was that he was in a flood, his cell phone was wet and he had to contact his office to excuse his absence. Not having a working home phone or cell, he created a Facebook page and connected with colleagues. At the end of the day, his entire office and several dozen friends had passed the message along. He had dozens of calls to assist him. A heartwarming true story. My students are thrilled with the fact that the course is in touch with a world they know. After all, this generation is seeking business online rather than at a brick and mortar store. Facebook is great for C to B, not so much for B to B. See my last post.

What is troubling is the fact that clicking on ads may send your private profile details to internet ad tracking companies like Google and Adwords. WSJ found user’s ID being transmitted to data aggregators. Facebook is not alone in this, but when you see that Facebook has 500 million subscribers worldwide and 135 million in the US, a third of the US population, then the issue is magnified. So share with caution. Federal regulators, criminal enforcement, college admissions offices, employers and other similar agencies, surf the social media sites for information. Delete the beer snarfing, making out pictures on the wall; better yet, hide your wall. Display your photo and name only. There are users with their names deliberately misspelt. So much for Facebook rules on disclosing true identity. According to WSJ, Facebook transmits the unique “Facebook ID” number assigned to every user on the site. The user’s ID is a public part of any Facebook profile. Anyone can use an ID number to look up a person’s name, using a standard Web browser, even if that person has set all of his or her Facebook information to be private. For other users, the Facebook ID reveals information they have set to share with “everyone,” including age, residence, occupation and photos. Maybe the takeaway is to populate your profile sparingly. Overlapping friends circle can also bring danger from unwanted ‘friends’. De-friend unwanted friends by using the ‘block’ feature on Facebook and encourage your friends to do the same. ‘Foursquare’, an online location based software application, can pinpoint locations of friends in the vicinity. Import your Facebook friends into Foursquare and track who is close by. Could be a breach of privacy. So ‘friend’ carefully and review your friends list on Facebook periodically. It is OK to friend coworkers, bosses and classmates, just with caution. Never say anything that you will be embarrassed by later. After all, this is permanent public sharing with potentially 500 million viewers. The fear!!! The potential!!! What a wonderful way to connect with people. Friends get to know you as a person, beyond business–see someone they can trust.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Retweet, Klout, whatever!

I better start Twittering more often!!! I put my Twitter name ‘lawspeak’ into www.klout.com. But I was not recognized! I am not surprised, after all I need to have a million followers to have ‘klout recognition’.

Klout.com is a website that measures how influential you are on a scale of 0-100. It recently offered the most influential people (influencers) a free ride from LA or SFO to Toronto on Virgin Atlantic. Needless to say I was not a rider. But then Obama was trumped by Mashable, a social network news site. That begs the bigger question: do I really need to be an ‘influencer’ to get business? An article on Wall Street Journal said that B to B companies are finding it hard to find Facebook friends. Friends are how you become an ‘influencer’ on Facebook.  You know my experiences with Facebook from one of my past entries.

To become an ‘influencer’, identify your client. Who is your customer? If it is the ultimate consumer, then Facebook may be a great option. Encourage and make friends, promote your page. If your clients are other businesses, maybe Facebook is not your best option. A friend of mine is a thought leader–he twitters. Recently, Karl Rowe wrote that he wants to follow my friend. Maybe Twitter is better suited to thought leaders rather than consumer oriented businesses like me. I don’t know about you, but I find it hard to put fabulous thoughts into 140 characters. I am too busy writing for my clients, my law school class, my bar journals and my speaking engagements. Hey, there is a thought! I should just write about my activities. But my action plan is more old fashioned. Network in person, and then selectively use online media. I haven’t fully joined the online bandwagon yet.

However, you should still become my friend on Facebook

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Facebook for Lawyers

Facebook… what can I say. I think it’s needed to grow business. More of my clients are online and almost none use paper directories. Just de-linked myself from the yellow pages. All my friends are on Facebook, even if they see each other 3 times a week. My secretary tells me that she checks her page every day, and my students in law school are checking email, Facebooking, Twittering and blogging their way through class. My blog goes out to my Facebook, Twitter and Linkedin accounts. So let me join the pack. But setting up a Facebook (FB) page is a different story, and one that is not so easy.

I had a personal page which I never used, but which was linked to my office email address. I had to delink the personal FB profile and set up a new law firm page on FB Pages, another animal of the same stripe. Many trials and errors and several confirmations later, I think I am successful. Now I have uploaded a new picture of me. Whew! Why do they make it so difficult to set up, yet release and track our private information?

For starters, create a profile associated with the FB Page for your business, not a personal profile. Sounds simple, but after a few tries we got it. Rather Ms. Ashley, my secretary, was the architect. For people associated with law, FB has some pitfalls. Lawyers can unwittingly create a client attorney relationship by just answering questions posted on their FB wall. The definition can be quite subjective, depending on jurisdiction and the recipient. It also means that by answering questions, the lawyer could be breaching confidentiality. Like the old ad line, “Show me the beef”, lawyers are required to factually support their prowess; no puffery allowed. Also, lawyers cannot answer legal questions outside their state(s). If you are in federal practice like immigration, that may be a different situation. I cannot invite you to be my friend if I want to target you as a client. It is called solicitation. I cannot join a chat room or an online discussion of the law, because I would be inadvertently creating legal expectations and client relationships with the participants. I want to be careful of witnesses, and careful of disclosing confidential information or prejudicing potential jurors. So now you have my reasons why I haven’t friended my waiting friends on FB. If I try to correct the record, Google and Yahoo keep electronic record of all posts. None of the posts to any social media are private. Immigration officers routinely surf FB, Linkedin, Twitter, Google and Yahoo, for information on the applicant. So do employers and potential life partners! Hey, so do college admission officers! This is true of family law, criminal and any other branch. And you thought it was only the CIA looking for Osama. In the old days, articles and messages from professionals went through a vetting process. Now anyone can and does publish. Relying on information on the web and social media can be risky. So after sounding like the doomsday oracle, I am still on FB and Twitter and Linkedin, but with all the caveats!

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Identity Theft

Was a victim of identity theft


I met a friend yesterday who told me that his identity was stolen a few weeks ago. Then a friend’s daughter from Cleveland told me the same thing.  I too was a victim of identity theft a few years ago. The thief changed my address and charged 20K to my card. Not a pleasant experience. The bank seemed to think it was my fault. I had to file an affidavit that I had not stolen my own credit card!! Recently, I was at a gas station when I noticed the customer in front of me open their wallet and had their social security card and driver’s license on either side of their wallet in all its shiny glory! I have read recent reports that affluent consumers and people with excellent credit could be at higher risk for identity theft. So here are my thoughts on the subject of what to do and how to prevent it.

Of course, please do not carry your social security (SS) card in your wallet, nor a copy of the card. If your SS # has been lifted, get a new SS # from the Agency. See Social security and Identity Theft, for more information on this subject. Don’t write your PIN number on your check cards. Find a number you can remember and memorize it. Don’t use your birthdate or your anniversary or your children’s birthdays as PIN numbers. Thieves find these easy to locate. Make photocopies of your credit cards. If your wallet is stolen or your identity stolen, make a police complaint and obtain the complaint number.  Report it to the credit reporting agencies at Experian fraud alert, Equifax, and Transunion.  Their phone numbers are Phone: 800-525-6285 or: 404-885-8000 (Equifax); and Phone: 888-397-3742 (Experian) and Phone: 800-680-7289 (Transunion). In general, a fraud alert for 90 days or 7 years is a good start to prevent further thefts or even to prevent one. You can also freeze your credit, so that no one including you can open a new credit card or other line of credit without alerting you. Your financial institution also has paid services to alert you to changes. If you are going out-of-town, don’t alert your followers on Twitter, Facebook and other social media! Thieves are followers too! Military active duty personnel can make an active duty fraud alert posted to their file. File a security alert or victim statement with all national credit bureaus; inform each creditor, document all the contacts (names, telephone numbers, dates, times, subject/details of your talk with the creditor’s representative). Every creditor has a different process, so make sure you understand what is expected of you. Above all make a note of the details. Follow up on the phone calls and keep the notes in a file so that you can monitor your credit cards and accounts when a new fraud shows up. You can add an Extended Fraud Victim Alert to your report by submitting a copy of a valid identity theft report that you have filed with a Federal, State or local law enforcement agency. An Extended Alert will remain on your report for seven years. When you get mail, shred or tear up credit card solicitations, review your credit report every 6 months, pay attention to your credit card transactions, do not leave your mail unattended in a public place, keep track of when statements arrive, better yet, let your statements come to your email inbox. Don’t give out personal information over the phone, and don’t list your phone number. Electronic: Install firewalls and internet anti virus software, don’t open emails from unknown senders, don’t use public computers to search your personal email accounts and bank accounts. Change your passwords periodically. At work, avoid leaving your handbag or wallet on your desk or unsecured, sensitive documents like bank and pay stubs should not be placed in plain view for all to see. Above all, do not send your social security number over email.

Be safe, and see you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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OCI

Are you of Indian origin? I mean the Indo-American kind from the subcontinent, not American Indian, like my daughter’s 5 year old friend asked. If so, you are probably interested in visiting or staying in India past the 180 day limit and/or want to visit multiple times in the space of 60 days. Currently, India does not allow you to travel to India on a visitor’s visa, unless there is a space of 60 days between visits. So the solution for you is ‘Overseas Citizen of India’ card, with which you can visit as many times as you want and stay past 180 days without checking in with the local police station. Do you qualify for an OCI card? You may if you have traceable ancestry to India. If you are first generation immigrant with foreign citizenship, you are eligible for OCI. Your parents, or grandparents must have been Indian citizens. Minor children can get an OCI if their parents have an OCI; if the parents hold foreign citizenship, then the minor children can obtain PIO cards. Why do I want an OCI card? If I want to practice my profession in India, or visit India multiple times or for a prolonged stay, then I want an OCI card. You can become a full fledged Indian citizen after you establish residency in India for 1 year, if you have held the OCI status for preceding 5 years.

I was an Indian citizen, but I don’t have my Indian Passport? A question I will answer in my next entry.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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