October 2009 Archives

October 23, 2009

Hiring Foreign Workers - Choosing the Right Visa

In a continuing series on hiring foreign workers, this article explores the different types of visas available. For most San Diego businesses, the idea of hiring foreign workers seems like an overwhelming task even with an immigration attorney on their side. See Hiring Foreign Workers - Initial Considerations for San Diego Businesses. However, businesses of all sizes are making the decision to hire foreign workers more and more these days despite daunting immigration policies. Once the commitment is made, the next step is deciding which visa to sponsor a foreign worker under. The decision depends on the employer's needs, the pool of prospective foreign workers, whether the work is seasonal or not and the length of time the work is expected to last.


In some cases, a particular foreign candidate offers a unique skill above and beyond that which is normal for the trade making it virtually impossible to fill the position with a qualified domestic applicant. In other cases, there is a shortage of a particular type of worker such as an electronic engineer or a nurse. In the former, the employer may desire to immediately sponsor the prospective employee for permanent employment under United States immigration law even if it proves a bit more difficult. In the later case, employers may want to sponsor the foreign worker under a temporary employment visa, and later re-evaluate the decision to sponsor the worker under a permanent immigration visa. The specific legal requirements for United States employment visas, both temporary and permanent, and the necessary recruiting efforts will be discussed in more detail in following articles under this series.

Hiring a foreign worker for a permanent employment position requires sponsorship under one of five employment based visas (EB visas). EB-1 priority workers are aliens with extraordinary ability in sciences, arts, education, business or athletics, outstanding professors or researchers and managers and executives subject to international transfer to the United States. EB-2 professionals are professionals with advanced degrees or persons with exceptional ability in the sciences, arts or business or qualified physicians who will practice in underserved U.S. areas. EB-3 workers are skilled workers (with a minimum of 2 years training and experience), professionals (with bachelor's degrees) and unskilled workers. EB-4 special immigrants are religious workers and U.S. government employees and former employees abroad. EB-5 immigrant investors are aliens seeking to engage in new commercial enterprises. Often, an alien's qualifications may fit more than one of the above immigration visa categories and choosing which visa to sponsor under will most often depend on the backlog of available visas in each category and per country limits. There is currently a six month backlog on labor certification for EB-3 visas. If a professional with a bachelor's degree is also a person with exceptional ability in the sciences, arts or business, sponsoring under an EB-2 visa may be the better option.

The following are non-immigration visas for temporary employment: H-1B for specialty occupations including architects, engineers, health professionals, educators, accountants, legal professionals and artists and fashion models; H-2A visas for temporary agricultural workers; H-3 visas for those training in education of handicapped children; L-1 visas for intra-company transferees; and TN visas (non-immigrant professionals from Canada and Mexico under NAFTA (the North American Free Trade Agreement). The H-1B visa is the most common and requires a bachelor's degree or its equivalent in a specialty occupation. When your business is ready to hire a foreign worker, consult an immigration attorney to discuss which visa best suits your circumstances.

October 14, 2009

Consider a Legal Check Up for Your San Diego Business

At one time or another, every San Diego business owner questions how well their business is protected from risk, liabilities and infringement. Should they incorporate, form an LLC or partnership? Does the current business entity offer the best tax advantages? Are their personal assets protected? What are their rights and obligations under leases and contracts? Are key contracts enforceable should there be a dispute? Can existing contracts be improved? Are trademarks, logos and business names protected from infringement? Could they be infringing on others' trademarks? Is there any legal exposure to the company from its website and blog? Is insurance adequate? Do insurance policies meet regulatory requirements for the business or meet the minimum standards agreed to in a lease agreement? Is the company in compliance with government regulations pertaining to employees? Do they need to consult an attorney? The list is as long as businesses are prolific. For most new and growing businesses, addressing every potential legal issue is cost prohibitive. However, an attorney evaluation summarizing and assessing areas of concern is within reach for most businesses. Once an assessment is provided, business owners can better prioritize and plan for the future.


Virtually every car owner at one time or another has taken their car in for service. Most often, the service includes a check up of every major component of your car. Brakes, fluid levels, suspension, tires and electronics are all examined and in the end you are provided a list of recommended repairs and maintenance. Some of the suggested repairs stem from visual inspection and others are derived from manufacturers' mileage triggered recommendations. It's not uncommon for folks to prioritize perhaps electing to have the front brakes replaced and a tune up performed while putting off the replacement of shocks, hoses, and the water pump. Ultimately, whatever decision the consumer makes regarding actual repairs, the cost of the examination is relatively small and the examination alerts the owner of potential trouble spots.

A business lawyer can perform the same kind of affordable analysis for your business - they can evaluate your business profile from top to bottom, provide an assessment of the current state of affairs, highlight areas of risk and other areas requiring attention and make recommendations regarding priorities. This type of evaluation can generally be performed for a flat fee which would be determined by the size of your business. Once completed, the business owner (like the automobile owner above) can prioritize. Whatever decision the business owner makes, at the very least, he or she has been alerted to potential trouble spots and can plan to address those concerns as time and economics permit.

October 8, 2009

What You Need To Know About Home-Based Businesses and Zoning Laws

Most people don't think about zoning laws when they first decide to start a business out of their home, and most home-based businesses never hear from local governments about zoning violations even where they are clearly in violation of local zoning laws. The reason why is that most home-based businesses are stealthy. Modern technology allows entrepreneurs to conduct virtually all aspects of a business' operations (short of manufacturing and direct sales) without leaving the computer. Employees can work from their own homes, products can be delivered via on-line companies and services can be provided off site. So long as signs aren't posted, traffic isn't increased beyond what is normal for residential neighborhoods and excess noise isn't a factor, no one notices that a home-based business even exists. In fact, a neighbor's complaints are generally the only thing that ever puts a home-based business on a local government's radar.


So what's all the fuss about zoning laws? Although most home-based businesses are stealthy, some business owners are looking to more visible home-based options. The recession has encouraged many would be entrepreneurs to consider starting a business, and one of their first major cost decisions is location. For a small business requiring employees, product assembly and manufacturing, customer visits, vendor deliveries or any combination of the preceding, understanding local zoning ordinances is critical. Otherwise, they risk being shut down. 

Some localities forbid home based offices completely. Others allow home based offices for professionals such as lawyers, doctors and accountants. Even the most liberal of localities will allow home based businesses only under certain circumstances, and the zoning laws can vary greatly from municipality to municipality. Generally, they have the following in common: they require that the business be only incidental to the home as living quarters taking up less than a certain percentage of the home's overall space; they require that all employees of the business reside in the home; they require that increased vendor and customer traffic is not beyond what is normal for the residential neighborhood; they prohibit the use of equipment that creates a nuisance such as noise, vibration or fumes that are detectable outside of the home; they prohibit the use and storage of hazardous materials; they prohibit the warehousing of business inventory; and they prohibit any changes to the outside appearance of the home (including signage).

If you are considering a home based business that for any reason will be noticed by neighbors, it's important to know the zoning laws in your locality. The easiest way to check your local zoning laws is at the main branch of your public library. You can also contact your local Planning or Zoning office. However, it's probably better not to put yourself on their radar. It may be better to have a friend in the neighborhood call and check for you. You can also try contacting the city clerk's office or your local Chamber of Commerce, or check your city's home page online. If you live in or are considering moving to a planned community with a homeowner's association, the CC&Rs (covenants, conditions and restrictions) are likely even more restrictive than those set forth above.

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October 2, 2009

Avoiding Litigation - Part Two

Avoiding Litigation - Part One sets forth three pre-conflict practices useful in reducing your business' risk of litigation. Of course, avoiding all conflict is virtually impossible. However, conflict does not inevitably lead to litigation. In fact, more than 90% of all conflict is resolved before reaching the courthouse steps. Below are three practices useful in avoiding litigation after conflict has arisen:


Act Fast. The worse thing anyone can do is ignore a potential conflict. If you receive a letter, phone call or personal visit from an unhappy customer, vendor or client, respond immediately. In most cases, the problem will not go away because you chose to ignore it. The problem will more likely get worse. Communication is a powerful tool that can diffuse even the most heated dispute. The faster you act, the more easily the problem will be to resolve. Being responsive often puts the other side off guard. They are poised for a battle and when you call to offer a solution, they're not quite sure how to respond. If you are behind on a debt, offer a payment solution that is workable for you. Offering a payment solution you can't ultimately adhere to is worse than ignoring the problem. If you cannot fully perform, offer creative alternatives. Whatever your response, it will be better received if it provides options. If there is disagreement about your rights and obligations under an agreement, offer to sit down and discuss the issue. Don't be rigid. Explain your beliefs politely but be sure to leave the door open for a compromise. Conflict and anger breed more conflict and more anger. In the end, you don't have to agree to anything. However, open and conciliatory communication opens the door to a wider range of potential resolutions. Acting fast is no less important where you are seeking redress. If you are owed a past due debt, don't rest on your laurels. The fact that there is no doubt about the debt doesn't guarantee payment, especially without litigation. It remains costly for you to sue. Instead, contact the debtor and ask whether there is a problem. Offer to work with them to resolve the debt as quickly and as efficiently as possible. They will appreciate your offer, and likely never forget it. If it appears your efforts at informal resolution are ignored, try asking an attorney to write the other side a letter. A litigation attorney can concisely set forth the legal realities for the other side and can usually do this at a relatively low cost. Be sure your attorney understands your commitment to resolving the matter without the need for litigation.

Be Willing To Compromise. No matter the strength of your bargaining position, litigation is expensive. For new and growing businesses, it is prohibitive. Large businesses and corporations can more readily afford a legal battle, but there is little benefit to litigating a matter that could have been informally resolved at a much lower cost to the company. Even where larger concerns are at issue such as fear of opening the floodgates to repetitive litigation, looking to a compromise may help avoid worst case scenarios. Think about the prospect of litigation. What will it cost you in terms of aggravation, time, money and goodwill? Take a hard look at the matter before you and consider alternatives that might be acceptable to you - weigh the costs of the compromise against the aggravation, time, money and goodwill you will exhaust during a court battle. These costs cannot be overstated. Compromise may be the single most important practice in avoiding litigation. It is also the hardest practice for most businesses to swallow.

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