2011 January

Are Income Taxes Dischargeable?

January 27, 2011 By Tom Jr.

Many people ask the question, “Are income taxes dischargeable in bankruptcy?” First of all, bankruptcy is a legal proceeding in which debt is either forgiven or reorganized so repayment can be made. Second, in limited circumstances, yes, individuals can have federal and state income taxes discharged in bankruptcy.

What does the term, “discharge” mean?

In the context of bankruptcy proceedings, “discharge” means to wipe out or eliminate. The debt does not have to be repaid ever.

What taxes can be discharged in bankruptcy?

Only federal and state income taxes can be eliminated in bankruptcy. Payroll taxes such as FICA, estate, gift, sales, and fuel taxes are NOT eliminated in bankruptcy.

What type of bankruptcy?

Only individuals can have federal income taxes discharged, not companies. And, only individuals that qualify for a chapter 7 bankruptcy may have income taxes discharged. Those who must file chapter 13 bankruptcy may have their federal income tax debt restructured so it’s easier to pay, but it is not eliminated.

What are the federal income tax discharge exceptions?

Discharge of federal income taxes is only available in limited circumstances. Basically, the debt must be older than three years, the IRS must not have filed a tax lien, and all income tax returns must have been timely filed without fraud.

Discharge is NOT available for taxes:

· due within three years prior to filing the bankruptcy petition

· assessed within 240 days of filing the bankruptcy petition

· not yet assessed but assessable

· due from a late tax return filed within two years of filing the bankruptcy petition

· hidden by fraud

What are my options if my taxes are not dischargeable?

If your situation does not fall within the limited circumstances that permit discharge of federal income taxes, you have the option of negotiating an installment agreement to pay the debt due over time. A second option is negotiating a compromise with the IRS to reduce the debt due.

Where do I get help?

Consult with a qualified attorney when considering bankruptcy or if you have any questions about the discharge of federal income taxes. Bankruptcy is a very specialized area of law; be sure your attorney focuses his or her practice on bankruptcy and attaining discharge of federal income taxes. We focus our practice on bankruptcy law and you can reach us at 513-793-6555 or Thomasjr@geygan.com. We will gently walk you through the process and aggressively fight for your legal rights.

Filed Under: Bankruptcy, Chapter 13, Chapter 7

What is a Green Card?

January 27, 2011 By Tom Jr.

If you’re like most people, you’ve heard the term, “green card,” but aren’t sure what it actually means. A green card is a colloquial term for the legal document that proves that the holder is a permanent resident and has a legal right to live and work in the United States. It’s also called the “Alien Registration Receipt Card.” But with a name like that, it is easy to understand why the term “green card” is so widely used.

However, it may surprise you to know that green cards are now again green.. They were once green, hence the nick name, then pink, then cream and now again green.. They are small laminated cards with the permanent resident’s photograph and fingerprints.

What are the benefits of a green card?

The green card benefits are significant. The green card indicates that the holder is a “permanent resident,” having the right to live and work in the United States. You also have the right to be protected under the laws of your state and locale of residence.

It also serves as a reentry document, meaning that the holder has the right to reenter the United States after a short absence without providing additional documentation.

It is significant to note that a permanent resident or green card holder is not a U.S. citizen. And, thereby, does not have all the rights associated with citizenship such as voting in national elections.

Does the green card expire?

Absolutely not. The green card is permanent, although it must be renewed every 10 years (like a driver’s license needs to be renewed.) There are two limitations: First, your U.S. residence must remain your primary residence. Second, conviction of certain crimes will nullify your permanent residence status.

How do I get a green card?

You may remember the romantic comedy (1990) feature film, “Green Card.” A young American woman enters into a marriage of convenience so that a Frenchman can attain his green card. Having a family member or fiancé petition for your green card is just one way to become a permanent resident.

The most common ways to get a green card are through:

· a family member

· a job (typically, a high level professional position)

· political asylum or as a refugee

If you are already in the U.S., you go through the process called “Adjustment of Status” to obtain your green card. If you are living outside the U.S., you go through a process called “Consular Processing” and you must apply at a U.S. embassy or consular outside the U.S.

Who makes these green card rules?

Although you’ve likely heard of “INS” and seen references to it on television, the INS was dissolved in 2003. All immigration matters are under the jurisdiction of the U.S. Citizenship and Immigration Service (USCIS.) The USCIS is an agency under the Department of Homeland Security.

If you have questions regarding obtaining a green card and becoming a permanent resident, be sure to consult with a qualified immigration attorney. Immigration is a very specialized area of law; be sure your attorney focuses his or her practice on immigration and getting green cards. We focus our practice on immigration law and you can reach us at 513-793-6555 or Thomasjr@geygan.com. We will gently walk you through the process and aggressively fight for your legal rights.

Filed Under: Employment, Family based Immigration, Green Card, Green Card, Green Card, Immigration, Investor Visas, Soap Box

Naturalization

January 25, 2011 By Tom Jr.

The United States has a long history of welcoming immigrants from all parts of the world. During the last decade, U.S. Citizenship and Immigration Services (USCIS) welcomed more than 6.6 million naturalized citizens into the fabric of our nation. In fiscal year 2010, approximately 676,000 individuals were naturalized.
Deciding to become a U.S. citizen can be a very important milestone in an immigrant’s life. Individuals must demonstrate a commitment to the unifying principles that bind us as Americans and in return, will enjoy many of the rights and privileges that are fundamental to U.S. citizenship.

About the Naturalization Process

In general, an individual over the age of 18 seeking to become a citizen of the United States must apply for naturalization by filing an Application for Naturalization, Form N-400. To be eligible for naturalization, an applicant must fulfill certain eligibility requirements set forth in the Immigration and Nationality Act (INA).
These general eligibility requirements specify that the applicant must:

• Be at least 18 years of age;
• Be a lawful permanent resident (green card holder);
• Have resided in the United States for at least five years;
• Have been physically present in the United States for at least 30 months;
• Be a person of good moral character;
• Be able to speak, read, write and understand the English language;
• Have knowledge of U.S. government and history; and
• Be willing and able to take the Oath of Allegiance.

Special naturalization provisions exempt certain applicants from one or more of the general requirements for naturalization. Spouses of U.S. citizens and members of the military constitute the main categories of individuals who are exempt from some of the general requirements for naturalization.
• The majority of individuals naturalizing as spouses of U.S. citizens may do so three years after being admitted as lawful permanent residents, rather than the five years prescribed under the general provisions.
• Spouses of U.S. citizens stationed abroad may not be required to meet any particular residence or physical presence requirement.
• Members of the military who served honorably during certain periods of conflict may be eligible for naturalization even though they have not been admitted as lawful permanent residents and even if they are under the age of 18.
• Members of the military who served honorably for at least one year, at any time, and apply for naturalization within a certain time after their military service, are also exempt from the general residence and physical presence requirements.
AILA InfoNet Doc. No. 11012470. (Posted 01/24/11)
In addition to these naturalization provisions, the INA also provides for the naturalization of children who are under the age of 18.
• A child under the age of 18, who is a lawful permanent resident residing in the United States in the legal and physical custody of a U.S. citizen parent, may automatically acquire U.S. citizenship. To obtain evidence of U.S. citizenship, an Application for Certificate of Citizenship, Form N-600, must be filed on behalf of the child.
• A child who is residing abroad, who is temporarily present in the U.S. based an any lawful admission, may be eligible to apply for naturalization while under the age of 18 if he or she has at least one parent who is a citizen of the United States, and the parent (or qualifying grandparent) meets certain physical presence requirements in the United States.
• There are exemptions benefiting children of active-duty members of the military stationed abroad.
All persons filing an Application for Naturalization who have submitted a complete application along with all required documents will be scheduled for an interviewed by a USCIS officer. Those applicants found qualified are scheduled for an oath ceremony before a judge or an officer delegated the authority by the Director of USCIS to administer the Oath of Allegiance. Applicants do not become U.S. citizens until they have taken the Oath.
Naturalization Statistics
• Each year, USCIS welcomes approximately 680,000 citizens during naturalization ceremonies across the United States and around the world.
• In FY 2009, 74 percent of all persons naturalizing resided in 10 states (in descending order): California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington and Maryland.
• In FY 2009, the leading metropolitan areas of residence were New York-Northern New Jersey-Long Island, NY-NJ-PA (15 percent), Los Angeles-Long Beach-Santa Ana, CA (11 percent) and Miami-Fort Lauderdale-Pompano Beach, FL (7.3 percent).
• In FY 2009, the top countries of origin for naturalization were in the following order: Mexico, India, Philippines, China and Vietnam.1
• Since September 2001, USCIS has naturalized more than 64,000 members of the military, in ceremonies across the United States and in the following 22 countries: Afghanistan, Bahrain, China, Cuba, Djibouti, El Salvador, Germany, Greece, Haiti, Honduras, Iceland, Iraq, Italy, Japan, Kenya, Kosovo, Kuwait, Philippines, South Korea, Spain, Thailand and the United Kingdom.
• Since 2008, USCIS has naturalized 883 military spouses during ceremonies in Bulgaria, China, El Salvador, Germany, Italy, Japan, Kuwait, Oman, Panama, Philippines, South Korea, Spain, Thailand, Turkey and the United Kingdom.

For assistance in a Naturalization Application, or to determine if you are already a United States citizen, please contact my office.

Filed Under: Citizenship, Immigration, Naturalization

TPS Memo involving "No Jail" or “No Incarceration” Certifications

January 25, 2011 By Tom Jr.

U.S. Citizenship and Immigration Services
Office of the Director (MS 2000)
Washington, DC 20529-2000
January 21, 2011
AFM Update AD11-21
Memorandum
SUBJECT: Temporary Protected Status Adjudications Involving “No Jail” or “No Incarceration” Certifications, and Reminder for Cases Involving Certain Potential Misdemeanors
Revisions to the Adjudicator’s Field Manual (AFM) Chapter 38.1(e)(12)
AFM Update AD11-21
Purpose
This memorandum provides guidance for adjudication of Temporary Protected Status (TPS) applications and administrative appeals in cases involving certain offenses where a state or local
court has issued a “no jail” or “no incarceration” certification related to the offense. In addition, this memorandum reminds adjudicators to take TPS cases to USCIS counsel for further review and guidance where it appears that the applicant may be ineligible for TPS on the basis of two misdemeanors as defined by 8 C.F.R. § 244.1, but where one or more of the offenses at issue is not classified as a misdemeanor by the particular state or local jurisdiction. This memorandum also updates Chapter 38.1(e)(12) of the Adjudicator’s Field Manual (AFM) regarding TPS ineligibility grounds.
Guidance
I. “No Jail” or “No Incarceration” Certifications
A legal issue has been presented regarding whether certain categories of minor offenses fall outside the definition of a misdemeanor contained in 8 C.F.R. § 244.1 for purposes of TPS. Specifically, a legal question has been raised whether an offense certified as “no jail” or “no incarceration” in a Florida case qualifies as a misdemeanor under the regulation. One of the several grounds of ineligibility for TPS is the conviction of two or more misdemeanors, as defined in § 244.1, committed in the United States. 8 C.F.R. § 244.4(a). The definition of a misdemeanor for TPS purposes is contained in 8 C.F.R. § 244.1, which states:
Misdemeanor means a crime committed in the United States, either:
(1)
Punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served, if any, or
(2)
A crime treated as a misdemeanor under the term “felony” in [8 C.F.R. § 244.1].
For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor.
Temporary Protected Status Adjudications Involving “No Jail” or “No Incarceration” Certifications,
and Reminder for Cases Involving Certain Potential Misdemeanors
Revisions to the Adjudicator’s Field Manual (AFM) Chapter 38.1(e)(12)
AFM Update AD11-21
Page 2
The Department has concluded that a Florida “no jail” or “no incarceration” certification, issued pursuant to Rule 3.994 of the Florida Rules of Criminal Procedure, fundamentally changes the maximum possible sentence for an offense by removing the possibility of incarceration for that offense. As a result, the Department has further concluded that an offense with such a certification, unless withdrawn pursuant to Rule 3.111(b)(1)(C) of the Florida Rules of Criminal Procedure, does not meet the definition of a misdemeanor under 8 C.F.R. § 244.1 because it would not constitute an offense punishable by imprisonment.
If an applicant presents evidence that another state or locality has issued a “no jail,” “no incarceration,” or “no imprisonment” type certification for an offense that may be relevant to his or her TPS request, adjudicators must bring the case to the attention of USCIS counsel so that it can be determined whether, given the particular nature of such a certification and the relevant laws, it means that the offense does not qualify as a misdemeanor under 8 C.F.R. § 244.1.
II. Certain Offenses Not Considered “Misdemeanors” Under State and Local Laws
As instructed during recent TPS trainings, adjudicators are reminded that they are to request USCIS counsel to review any case where it appears that the applicant may be ineligible for TPS on the basis of two misdemeanors, as defined by 8 C.F.R. § 244.1, but where one or more of the offenses at issue is not classified as a misdemeanor by the state or local jurisdiction involved. These cases present issues requiring legal determinations. In some cases, the offense(s) may ultimately be determined to be a misdemeanor for TPS purposes, but there may be other cases where either the particular offense does not meet the requirements for a “crime,” which is the initial requirement in the TPS misdemeanor definition, or other considerations apply. See, e.g., “Temporary Protected Status (TPS) adjudications involving New York traffic infractions or New York violations,” Memorandum from Donald Neufeld, Associate Director, USCIS Service Center Operations and Perry J. Rhew, Chief, USCIS Administrative Appeals Office, dated January 17, 2010. Officers are advised that this reminder to seek USCIS counsel advice in these types of cases applies to all states and localities.
Field Guidance and AFM Update, Chapter 38.1(e)(12)
Chapter 38.1(e)(12)(Grounds for Ineligibility) of the AFM is updated to add the following new subsection G:
“He or she has been convicted of two or more misdemeanors, as defined by 8 C.F.R. § 244.1, committed in the United States. (Section 244(c)(2)(B)(i) of the Act; 8 C.F.R. 244.4(a)). In determining whether an applicant has been convicted of two or more misdemeanors, adjudicators should also refer to the guidance memoranda entitled “Temporary Protected Status adjudications involving “No Jail” or “No Incarceration” Certifications, and Reminder for cases involving certain potential misdemeanors,” dated January 21, 2011; and “Temporary Protected Status (TPS) adjudications involving New York traffic infractions or New York violations,” Memorandum from Donald Neufeld, Associate Director, USCIS Service Center Operations and Perry J. Rhew, Chief, USCIS Administrative Appeals Office, dated January 17, 2010.”
Temporary Protected Status Adjudications Involving “No Jail” or “No Incarceration” Certifications,
and Reminder for Cases Involving Certain Potential Misdemeanors
Revisions to the Adjudicator’s Field Manual (AFM) Chapter 38.1(e)(12)
AFM Update AD11-21
Page 3
The AFM Transmittal Memoranda table is updated as follows:
AD11-21
January 21, 2011
Chapter 38.1(e)(12)
This memorandum revises AFM Chapter 38.1(e)(12)) to provide further guidance on Temporary Protected Status Grounds of Ineligibility.
Use
This memorandum is intended solely for the instruction and guidance of USCIS personnel in performing their duties relative to adjudications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. In addition, the instructions and guidance in this memorandum are in no way intended to and do not prohibit enforcement of the immigration laws of the United States.
Contact information
Questions arising within Service Center Operations and the Administrative Appeals Office should be directed through appropriate channels to their respective Headquarters offices.

Filed Under: Immigration, Reform/New Laws

Hundreds of Indian students may be deported from US

January 25, 2011 By Tom Jr.

"Hundreds of Indian students , mostly from Andhra Pradesh , face the prospect of deportation from the US after authorities raided and shut down a university in the Silicon Valley on charges of a massive immigration fraud. The Tri-Valley University in Pleasanton, a major suburb in San Francisco Bay Area, has been charged by federal investigating authorities with being part of an effort to defraud, misuse visa permits and indulge in money laundering and other crimes." Economic Times, Jan. 25, 2011.

Filed Under: Deportation & Removal, Immigration, Immigration Court