2B or not 2B: The H2B Visa Solution for Employers seeking Temporary, Nonagricultural Workers

by Jen Green, Burch Law

The H2B visa option is an increasingly popular, yet still often overlooked, solution for employers needing to fill temporary labor needs. Often used in the construction or hospitality industries, this visa classification allows an employer to bring over several workers at once via a streamlined process (relative to most other employment-based visas).

The H2B, like other visa classifications, has its particular restrictions, which an experienced immigration attorney could guide you through. For example, the H2B can only be used for workers from designated countries, but the list of designated countries is quite long. Another key thing to remember about the H2B visa is that it is for temporary employment, and only for nonagricultural workers. Employers may use the visa to fill seasonal, peak load, intermittent, or one-time needs. A “season” can be surprisingly long for H2B purposes and is not clearly defined under the regulations. Basically, the employer needs to be able to show that the period where he doesn’t need the workers is predictable (for instance, during the dead of winter when work can’t be done). An experienced immigration attorney could help you understand how your work requirements fit into the H2B framework.

H2B visas can be extended in increments of one year, for a maximum stay of 3 years for a worker. But at the end of that period, the worker only must leave the USA for an uninterrupted period of 3 months before seeking readmission in H2B status. So, although the H2B visa does not provide a path to the green card, like some other “temporary” visa classifications it does allow for a basically indefinite stay in working status, with minor interruptions of mandated stays abroad. And the worker’s spouse and unmarried children under age 21 may come too – in H4 status; they just cannot work in the U.S.

The H2B classification currently has 66,000 visa numbers available each year, which are allotted in two groups of 33,000 each – the first 33,000 for the first half of the USCIS fiscal year, and the other 33,000 in the second half of that fiscal year. The 33,000 available visa numbers for the first half of fiscal year 2018 are already all taken. The H2B visa category, like most other U.S. visa categories, is oversubscribed, so employers should prepare to gather their worker and job information efficiently and be able submit it as soon as a new petition period opens. This involves careful timing and planning; the employer must submit a temporary labor certification application to the Department of Labor and obtain its certification before the employer can submit the H2B petition to the USCIS with the required documentation.

As you may perceive just from this brief overview, obtaining H2B visas for your temporary workers takes careful coordination of paperwork and timing; so employers could benefit from the help of an experienced immigration attorney to navigate the requirements and steps. If the H2B visa might help you solve your labor needs and you need help with the petition process, contact us. We’re here to help.

Elder Law – Planning for Incapacity

by Jen Green, Burch Law

No one wants to think about the possibility of becoming incapacitated. But as estate planning lawyers are all too aware, it can happen to anyone at any time. If you don’t plan for incapacity, incapacity may plan for you. It is an especial concern now that modern medicine has vastly lengthened the quantity of life, but not necessarily the quality. Elder law isn’t just for the elderly; we all need to plan ahead for ourselves and our loved ones.

But even when we don’t want to plan for incapacity, most of us are opinionated about whom we want to have access to our stuff. And who we will let make decisions for us.

The time to put systems in place to ensure that your wishes are followed in these matters is when you still have the capacity to make decisions under the law. Just because the standard of legal capacity to make a Will is pretty low is no reason to put off necessary planning. The temptation to procrastinate is great, but better to use your procrastination credits on that long-deferred plan to clean out the garage or those vaguely disturbing dark corners in the back of your closet that are starting to mysteriously expand and make strange mewling sounds….

Anyway, back to the plan: an important component of any plan to legally cement your wishes in place is the statutory durable power of attorney (your financial power of attorney). This document will allow your most trusted relatives and/or friends to manage your finances for your benefit while you are incapacitated, whether from a temporary hospital stay or something more long term. It needs to be durable to remain in effect after you become incapacitated (otherwise it basically goes away the moment you become incapacitated). And if something happens such that you can’t manage your finances as usual, you will need someone to access those funds to pay for your bills and your care.

You will also need a medical power of attorney and the accompanying release that allows a trusted loved one to make medical decisions and access your medical information.

Additionally, you will also want to be the one to choose a guardian in the event you become incapacitated. You don’t want this choice made by a court or by a stranger. Always better to plan ahead and set down your wishes in a valid legal document. If you wouldn’t let someone touch your money or make a decision for you now, you sure don’t want them stepping in later when you have no say in the matter. Guardianship comes up in many other contexts than elder law, because incapacity can affect people at all stages of life.

We can’t emphasize enough the importance of planning ahead. Our estate planning lawyers can help guide you through thinking about your choices and choosing the best options for your lifestyle. We can prepare the powers of attorney, directives, trusts, Wills, and other documents you will need to secure your wishes in the face of future eventualities.
If you have a ne’er do well relative or friend who has their eye on your estate, don’t let failure to plan provide their golden opportunity. Stop them now. You can get the last laugh. But it requires proper planning. We can help. Contact our estate planning lawyers to set up a no obligation consultation.

Cover Your Assets – Investment Planning with the Texas Series LLC


by Jen Green, Burch Law

Since 2009, Texas has offered a wonderful tool for investors, particularly those with multiple assets: the Texas Series LLC. With the traditional LLC, which already offered a fair amount of shielding from personal liability, investors enjoyed the benefits of pass-through taxation and informal management structures. With the Series LLC, the investor continues to enjoy those benefits and also gains the benefit of an additional level of shielding. For example, if you owned 10 pieces of real property, placed in Series 1 through 10 of your “RE LLC”, and someone won a judgment against Series 4, they could only collect that judgment from Series 4, not from any of the other series or from RE LLC. RE LLC could for the most part place its assets beyond judgment creditors’ reach, in that it would not enter into contracts or business dealings with other parties, being primarily the holding company for the various Series. And if those Series contained rental properties, for example, you might want to make your property management company a different LLC altogether, perhaps a traditional stand-alone LLC just for the purpose of managing those entities, keeping the assets’ ownership and management activities related to them separate.

You might think that the Series LLC sounds too complex or time-consuming to deal with, but Texas has made it a fairly user-friendly vehicle. Forming a Series LLC is straightforward (easier, in my opinion, than amending a traditional LLC to a series LLC). In filing your Certificate of Formation with the Texas Secretary of State, there is some additional language you need to add to your Certificate filing, which is set forth in the governing statute, that puts people on notice that your LLC is a Series LLC. In effect, it puts people on notice that they are going to have to work extra hard if they want to come after your assets, potentially eliminating frivolous lawsuits and nuisance “slip and fall” type suits in the bud. And you don’t have to already have multiple assets when you form the Series LLC: it will function as a traditional LLC just fine until you are ready to make the leap and start adding series of assets.

One thing to remember when forming your LLC, whether traditional or Series, Texas requires that the LLC file a Public Information Report and pay a relatively paltry franchise tax each year. Yet despite the tiny cost of this tax relative to the sizable protection your LLC could provide your assets, it always surprises me how many LLCs go into “forfeiture” status for failure to pay the franchise tax. But it is not just the LLC which is forfeit, it is also your protection from personal liability for debts, liabilities, and judgments of or against the LLC. Make a recurring calendar entry to remind yourself about this if you have to; you don’t want your shrewd foresight in forming the LLC to go for naught.

The additional duties involved in operating a Series LLC as opposed to a traditional LLC are basically:

  • Titling your properties or investments in the name of the individual Series and deeding them back out in the name of that Series; and
  • Keeping records of revenues, expenses and activities related to each Series separate for record-keeping purposes. This is very important! If you comingle these items for the various Series, you have lost the Series’ extra layer of liability protection. Think of it in terms of Texas community property law: when spouses comingle their separate property, they convert it to community property. Similarly, when Series LLC operators comingle transactions of their separate Series under a single record-keeping designation, they convert the series to a traditional LLC, where the pool of commingled assets can be reached more easily by creditors. Commingling Series’ transactions makes it easy to pierce the corporate veil and defeats the purpose of creating a Series LLC in the first place.

The Series LLC is treated as a single legal entity; technically, the individual Series which it comprises are not separate legal entities, even though they can largely behave as such in their business dealings. You can even obtain separate EIN numbers for each Series if you wish, though in most circumstances that would simply add unnecessary complexity. You also do not need separate bank accounts for each Series; one bank account for the entire LLC will do, so long as you notate transactions for the specific series to which they belong. For instance: January rental payment received-Series 1-$1600; HVAC repairs-Series 3-$2000, etc.

For ease of transaction tracking and record-keeping, you may want to limit the number of Series held within a single LLC to a dozen or less. You will also want to keep in separate LLCS investments with very different tax or debt structures or liability issues or exposure (for example, as mentioned previously, keep management/activity separate from assets). For instance, if you own several residential rental properties, several commercial rental properties, and several parcels of land for development, you might keep each of those asset bundles in three separate Series LLCs.

Texas is a very business-friendly environment compared to most other U.S. states, and the Series LLC is another tool Texas offers to help make your business and investment activities a little easier. If you have questions about how the Series LLC can work for you, give us a call. We can help you make the Texas Series LLC and its extra layer of liability protection happen!

Chain Migration and the Priority Date

by Jen Green, Burch Law

For any of you who have already immigrated to the United States and petitioned for relatives to join you here, you know that the wait for a priority date to become current can be exceedingly long. And the levels of paperwork and effort involved are strenuous, especially if you try to navigate the process on your own without an experienced immigration attorney.

For applicants from certain countries with high levels of immigration to the U.S., and for certain employment- or family-based categories of potential immigrants, those waits can be half a lifetime or more. And priority dates backlog and become current in a rather arbitrary pattern. Some years ago, there was a specific category where if someone had petitioned for a young relative, by the time their priority date became current, the person would have already been dead for 50 years (based upon then-average government processing times in that category and an average lifespan). Fortunately, that category later became somewhat more current.

Somewhat. Let’s look at some of the current wait times for family-based immigrant petitions. Current “final action” priority dates for married sons and daughters of U.S. citizens, and for brothers and sisters of adult U.S. citizens are in the 10/01/1994 – 11/08/1997 range for people from the Philippines and from Mexico, for example. By the time some U.S. citizen petitioners hear from the government that visa numbers are available for their relatives, both they and their relatives may well have forgotten that the petitions were ever filed. In effective, the chain of migration builds up a lot of rust during the interim between filing and actual immigration to the U.S.

Another snag in the process is that there are limited numbers of visa numbers available in any given year for each category. The two categories mentioned in the paragraph above have 23,400 and 65,000 visa numbers available respectively, and those numbers are not specific to any one country, but to all of them together.

You may have been hearing more about chain migration in the news lately. The administration wants to curtail chain migration. The argument actually makes a certain amount of sense, as no country can sustain unlimited immigration. It’s an argument based on numbers, very similar actually to the argument I run across quite often in dealing with cat rescue: pet advocates recommend neutering your cat or dog because one female cat, for example, left unchecked to reproduce, could produce 100 kittens in her reproductive life, and a single pair of cats and their kittens could produce more than 420,000 kittens in just 7 years. (Fayette Humane Society: That’s way more cat litter than anyone really wants to deal with. Even at the lower end of the spectrum of estimates, you still get nearly 3,000 cats. (Unspayed Cat to Kitten Calculator: Still a lot of cat litter.

So, migration is basically a numbers game. In a numbers game where the chain might be cut off at any time, it is very important to get into the queue while you still can. If you are a legal permanent resident or a U.S. citizen with close relatives abroad whom you would like to bring over, file those petitions for them now. Get a priority date while you still can. We can help. The wait may be long, but at least you and your family members would be on the list.

What Your Bank Isn’t Telling You About Your Estate Plan

I often have to unravel misinformation for my clients when it comes to Wills, estate planning, and probate. Perhaps this is most common when it comes to banks. While bankers are not attorneys, they are often put in the position of navigating the legal world of estate planning and probate. It is vital that clients are informed for when, not if, they receive confusing information from a well-meaning banker.

Here are a few keys points to know:

  1. Powers of Attorney: A power of attorney is ONLY valid while you are alive. It is incorrect to ask for a power of attorney in the event of death.
  2. Account Options: You are not always given the advice on how you want to own your accounts. Every bank has its own policies, but here a few generalities to understand:
    • “Putting someone” on your account can mean a lot of things. Did you add him or her as someone who only has access while you are alive, but no ownership interest – somewhat like an internal power of attorney? Or did you add him or her as an account owner, meaning such individual has ownership interest? Or maybe you added someone as a “POD (pay on death)” or “TOD (transfer on death)”, which would only be distributed upon death? There is no right or wrong way to set up your account – the only concern is what is your intent? A POD or TOD overrides a Will, so if you’ve named someone with the desire to assist with your estate, you actually gave such individual a gift with no obligation on how your money is used.
    • Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders. Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.
  3. When an Account Holder Dies: Perhaps nothing baffles banks more in my experience than when a customer dies. Whether you have a Will, living trust, or nothing at all, the information many of my clients receive is completely contradictory. Often an individual is told they can just do a sworn statement filed with the court called a “Small Estate Affidavit” to transfer an account. Without knowing A LOT more about the estate, there is no way to make such a claim. First, if there is a Will, you cannot use this document. Second, with the exception of the house and some other exempt property, the total assets cannot exceed $50,000…and any debts cannot exceed the value of the estate either. Another misunderstanding is that a Will does have to go through probate BEFORE an Executor can act or have access to any funds. I could write a great deal more about how accounts are settled upon death, but suffice it to say, reach out to an attorney BEFORE you go to the bank when a loved one dies.

There are many other issues when it comes to financial accounts that can conflict with your intent. If you’d like to review your accounts, please let me know. I’m here to navigate the murky waters of Wills, estate planning, and probate!

Parents: Your Kids Need Legal Planning Once They Turn 18!

Did you know that once your children turn 18, you will not have automatic rights to make legal and medical decisions for them? You won’t even have access to medical information in case of an emergency! That’s right, once someone is of legal age, no one, not a parent, not a spouse, has automatic legal rights. Once many parents realize this, they have their kids rush in to sign legal documents, especially before they go off to college.

Here are some of the most important documents to consider:

  1. Medical Power of Attorney – A Medical Power of Attorney (or Durable Power of Attorney for Health Care) designates an agent to make medical decisions if you are unable to make them.
  2. Medical Record Release (HIPAA) – A HIPAA Release Authority is a document that specifies who may have access to your medical records.  For example, most clients will name the same individuals as in their Medical Power of Attorney so that they may have access to your medical records if they have to make medical decisions on your behalf.
  3. Financial Power of Attorney – A Statutory Durable Power of Attorney (or financial Power of Attorney) designates an agent to make financial decisions and control property on your behalf.  A Power of Attorney gives great financial responsibilities.  For example, if you are in an accident and are in the hospital, your agent could help pay your bills and manage your financial affairs in your absence.

There may be other planning that is necessary for your children, which is why it’s vital to consult a qualified attorney to guide you through your specific circumstances. There are other considerations as well in the event your child has a bank account or a vehicle. You may want to ensure that financial accounts are set up with pay on death clauses (POD) or with rights of survivorship to allow a parent to have access in the event of death.

These do not have to be complicated or expensive matters to address. While no parent wants to think of their children being hospitalized, disabled, or dying, it is possible and creates additional heartache to be powerless to act for your child.

For more information, watch our informational video:

If You Don’t have a Will…You’re a Bad Parent!

Ok, not really, but I had to get your attention as to how important this planning is!

You love your children, you’d do anything for them. Yet you still don’t have a Will to protect them if the unexpected happens. Or you mistakenly think that an online form or program is sufficient enough to cover those who are most precious to you. Many do not realize the consequences of not having this planning completed…and having it done correctly!

Without a Will…

  • Your children will become wards of the state and a court will determine the guardian of your children.  Your family could end up in court fighting over the kids, or they could end up with a stranger.
  • The court will determine who inherits your estate as well as the trustee of your children’s inheritance.
  •  Your court-appointed administrator/executor may have to post a bond to guarantee that s/he is responsibly managing the money the state grants to your underage children.
  • In blended families, a new spouse may become partners with step-children or possibly an ex-spouse in handling your estate.
  •  The new spouse will not be legally required to use those assets for your children and when s/he dies, s/he will not be required to leave any of those assets to your children.

 Don’t Take the Risk of Going Online

There are a myriad of issues that are not addressed or are left incomplete when someone tries to draft their own documents through online forms or Will kits. I wrote more about this in a previous blog:

For parents in particular, going online is a huge mistake. Much of your estate, such as life insurance and retirement, is not controlled by your Will. Beneficiaries of such assets need to be carefully coordinated in order to ensure inheritance is distributed to your children in the manner that you wish.

Also, when you use online forms you are not aware of other planning that may be necessary. For example, a Will can cover guardianship of your children if you pass away, but what if you are in an accident or incapacitated? There is no one automatically designated by law to step in for your kids. There is; however, a document that can be created to cover such a situation. Bottom line, you are not aware of all the considerations and your options unless you consult an attorney.

So, no, you’re not really a bad parent. However, your children are counting on you to protect them. The reality is, you need to plan for the unexpected to ensure that no matter what, your kids will receive the best care possible rather than leaving it to chance…or to the state.

Because…If You Don’t have a Will, the State of Texas has One for You!

Think an Online Will is “Better than Nothing”? Think Again!

Unsatisfied Woman With Laptop Showing Thumbs DownSo many people are under the false assumption that drafting a Will through an online form or Will kit is “better than nothing.” I disagree. An online Will is actually WORSE than nothing!

You’ve been there. You and your spouse are frantically rushing around trying to get ready for a big trip that you’re finally getting without the kids and then it dawns on you: “What if something happens to BOTH of us?” Cue the internet and searching for a form to download. You quickly answer the questions, print it off, sign it, maybe even get it notarized and think “Well, we KNOW we should see a lawyer about this, but at least this is ‘better than nothing.’” This is one of the biggest misperceptions I hear.

There’s no “close” in Wills & Probate. If a Will isn’t signed with the legal requirements, then it is NOT valid and cannot be used in any way to show your intent! Many times these forms are not even signed correctly. Texas has specific requirements for how a Will is to be signed, witnessed, and notarized. I had a case awhile back where a single man with two adult children decided to use a website to draft his Will. “All” he had was a house, a bank account, and a car. Simple, right? Why go to a lawyer for advice and guidance! When do you find out a Will wasn’t signed properly? Usually when it’s too late…as in this case. When his daughter came to me after he died, I immediately noticed that he signed on one date; the first witnessed signed on a different date; and the second witnessed signed on yet another date. I looked at the daughter and said, “Your dad and both witnesses signed on three different dates.” And she said, “Yes, is that a problem?” Knowing that she is grieving, I gently told her that, unfortunately, the Will isn’t valid as the witnesses not only have to witness her dad’s signature, but also each other’s. Looking slightly defeated, she asked, “Well, can we at least show the court his intent to try and make this easier?” I had to tell her “no.” There is no “close” in Wills and probate. So what did we have to do? File a determination of heirship where the court has to appoint an attorney ad litem to research the heirs and present the findings to the court and then get her brother to agree that she can serve as the executor/administrator of the estate. If you think that sounds quick and inexpensive, you’re wrong. This extra time and expense could have been avoided by seeing an attorney. Why didn’t he go to an attorney in the first place? To save money. And in the end, not only did it cost WAY more money, but caused extra time and grief for his family.

A Will is not enough. Just having a Will is often not all that is needed when it comes to your estate and family planning. (see our other blog “Why a Will is not Enough” Many do not realize that much of their money and assets will not even be controlled by their Will. When you designate a beneficiary on assets such as life insurance, retirement accounts, annuities; those designations will override whatever you stated in your Will.

For parents of young children, you do NOT want to name minor children as a beneficiary on these assets even if you have a Will that creates a trust for them. Rather, you want to direct your beneficiary to your Will with the trust (or a living trust). Who is going to guide you with this if all you did was an online form? If you leave your young child named as beneficiaries on your life insurance or retirement then that money can get stuck in the court and then given to the child at age 18 rather than going through the Will that has a trust and trustees established for your child. But you don’t know that or have any help unless you consult a qualified attorney.

Overall, DIY legal planning is a huge mistake even when you perceive your circumstances to be “simple.” There is simply too much at stake and there is no substitute for sound legal counsel to guide you through these decisions, ensure your wishes will be upheld and that your documents are enforceable. No, an online Will is not “better than nothing”…it is worse than nothing, because it gives you a false sense of security when, in fact, you may still be left with nothing.

If You Died Today, Would Your Family Be Prepared?

Pretty depressing thought, right? I get it, I do. All I can tell you is that it is far less depressing than having your family sitting across from me sharing how you always planned to get a Will and powers of attorney put into place, but just hadn’t gotten around to it.

The problem is, you just never know when an unexpected illness or accident may occur. According to recent statistics in Texas, 1 person is killed every 2 hours and 29 minutes in a traffic accident. One person is injured every 2 minutes and 12 seconds! If you’ve driven on 635 during rush hour, you know this is true! A sudden heart attack takes about 325,000 adult deaths every year. This list goes on and on of how no one is immune from illness or death. So when is the best time to plan? NOW!

I much prefer a call to get your Will drafted than a call from your family that it’s too late. Even the seemingly simplest of situations can become a huge ordeal that could be avoided by some basic planning.

Did you know that without a Will:

  • The court will determine the guardian of your children. Your family could end up in court fighting over the kids, or the kids could end up with a stranger.
  • The court will determine the trustee of your children’s inheritance.
  • The state determines who inherits your estate.
  • The court will appoint an executor for your estate.
  • Your court appointed administrator may have to post a bond to guarantee that s/he is responsibly managing the money the state grants to your underage children.
  • In second marriages with children, a new spouse may become partners with stepchildren or possibly an ex-spouse in handling your estate.

Don’t let this happen to you…don’t put your family through the pain of having to bear avoidable costs and complications during a time of tremendous grief. You’re out of excuses and the time is now. Get your Will and other planning in place today!

And remember: If YOU Don’t Have a WILL, the State of Texas has One for YOU!

What Should I Do After I Sign My Will?

When clients walk out of my office after they’ve signed their Wills and powers of attorney, I often imagine they go home and put their folder in a cabinet or safe and then don’t think about it again. There are a few things; however, I recommend to my clients that they should do once they’ve signed their estate planning documents to ensure their family and loved ones are prepared.

  1. Tell your Executor and Agents. Inform those you’ve named as your executor, medical power of attorney, and other agents of their role and tell them where you keep your paperwork. You will also want to ensure that they have access to your Will Memorandum mentioned below.
  1. Decide the best place for you to keep your documents. I generally recommend keeping your documents in a safe location at home – preferably a fire-proof safe. Some suggest keeping your documents in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death. If you decide to keep your estate planning documents in a safe deposit box, consider naming a family member or your executor as a joint holder on the box. That should simplify matters following your death because someone will be able to get into the box without delay. However, if you and the person you name as a joint holder die at the same time, we are back to square one. Additionally, you may need access to the documents when the bank is not open.
  1. Provide a Will memorandum with vital information and instructions. There is no magic form to complete, but I do provide all my clients with both a hard copy and electronic version. (CLICK HERE FOR OUR DOWNLOADABLE FORM). The Will memorandum provides useful information that your Will or power of attorney alone will not provide, such as where you keep important paperwork (deeds, birth certificates, financial/banking information), people to contact (CPAs, financial planners, attorneys, doctors, friends, family), and your user names and passwords. Additionally, the Will memorandum allows you to make specific bequests of your personal effects. The will memorandum allows you to change your specific bequests without having to prepare a codicil (amendment) to your Will. You may add and cross-out items to this list as often as you wish. Please understand a Will memorandum is not legally binding, but it will greatly assist your family and loved ones with handling your affairs and fulfilling your wishes.

You will feel a sense of relief and peace of mind once you sign your Will, and you should! However, if your goal is to truly make a difficult time as easy as possible, I suggest you take these other steps to make sure your family and loved ones are as prepared as possible in the event the unexpected happens to you!