Take Advantage of "E" Category Trader and Investor Visas

Foreign individuals seeking U.S. visas so that they can sell products or invest in businesses in the U.S. should consider applying for visas under the "E" visa category. E visas are available to citizens of any of the 82 countries that have treaties with the U.S. for trading or investing. There are two categories of E visas: E-1 Treaty Trader visas may be eligible to people who plan to sell goods or services in the U.S., and E-2 Treaty Investor visas may be eligible to people who have made a significant investment in the U.S.

Often, an owner of a business or the principal investor will apply for an E visa, but businesses can also apply for E visas for essential employees. An essential employee is someone who serves a supervisory or executive function, or someone who possesses highly specialized skills that are essential to the international project. The essential employee must be of the same nationality as the business owner. The E visa holder may also bring a spouse and dependents to the U.S.

For a business owner or essential employee to qualify for an E-1 Trader visa, the business must conduct substantial trade between the U.S. and its home country. There is no specific minimum level of trade that the business must conduct to qualify for the visa, but at least 50 percent of the company's international trade must be between the U.S. and the treaty country. To apply for an E-1 visa, businesses will have to submit an application that includes a business plan that outlines the company's history, products, sales force, and how it will develop trade to the U.S. Including letters or purchase orders from U.S. customers improve the likelihood that the Consulate will approve the application.

Businesses or individuals from treaty countries that make a substantial investment in the U.S. may apply for an E-2 visa. To apply for an E-2 investor visa, the applicant must be in the process of investing in or establishing a U.S. business or office. The investor must submit a detailed business plan that shows how the business will make money, how the foreign national applicant is qualified to manage the business, and how the investment is in fact an investment with potential income in excess of a salary to the investor. Creating U.S. jobs is also a factor that the U.S. government reviews. The business plan must include financial projections for at least three years. The investor will also have to show that he or she has already transferred funds to the U.S. If the investor is purchasing an existing business, he or she may deposit the funds in an escrow account with the condition that the funds will be returned if the government does not issue the visa.

All E visa candidates must submit an application with a designated U.S. Consulate. A consular officer who specializes in processing E visas will carefully review the application, which can take weeks or months, depending on the Consulate's workload. The Consulate will interview the applicant to verify the facts in the application and evaluate whether the applicant can likely manage the business. The Consulate will also consider the applicant's financial history. If there is any question about where the funds for an investment came from and whether they are the result of illegal activity, the Consulate will deny the application.

For most countries, E-1 and E-2 visas are typically approved for up to five years. If the applicant is working on a start-up business, the Consulate may approve the visa for fewer than five years. E visa holders can renew their visas indefinitely for as long as they are managing their business or investment and it is profitable. To renew an application, the Consulate often requires the applicant to submit U.S. tax returns as evidence of the profit and health of the business.

Foreign companies and individuals based in companies from countries with which the U.S. has a treaty should carefully consider applying for E category visas if they want to build a business in the U.S.

For more information about E visas and other immigration matters, please contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.

PA Capital Stock Tax and Franchise Tax Expired

Effective as of January 1st, Pennsylvania's Capital Stock Tax and the Franchise Tax expired. These taxes were slowly being phased out for the past fifteen years, but, until now, they were extended to help fill budgetary gaps in Harrisburg.

The much-reviled Capital Stock Tax actually predates the Civil War and helped bolster the perception that Pennsylvania is not a business-friendly state. The Capital Stock Tax was assessed on corporations, limited liability companies (including limited liability companies taxed as partnerships for federal tax purposes), joint-stock associations and business trusts. The tax was calculated utilizing a mandated formula based on the entity's balance sheet net equity and its earnings history. The formula often produced a tax liability for the entity even in loss years.

Last year, the Capital Stock Tax brought in over $250,000,000 in revenue for Pennsylvania; therefore, it is important to note that there is a risk that the tax will be reinstated in some capacity, especially in light of Harrisburg's protracted budget battle.

The expiration of the Capital Stock Tax is important because it now means that the limited partnership may no longer be the entity of choice for real estate projects in Pennsylvania. Instead, the limited liability company would be the preferred entity as it insulates investors from liability, does not require a formal management structure, provides the benefits of pass-through taxation and, unlike the limited partnership, it does not require the creation of two separate entities: the actual limited partnership and its corporate general partner. Utilizing a limited liability company instead of a limited partnership for future real estate projects will help lessen an investor's administrative burden over the life span of a real estate project.

For more information about this announcement and other corporate law matters, contact Josh Hoffman, Kevin Israel, or any other Meyer, Unkovic & Scott attorney with whom you have worked.

ACBA Appoints MUS Attorney Ronald L. Hicks to Diversity & Gender Equality Committee

Ronald L. Hicks, Jr.
rlh@muslaw.com
412-456-2837

The Allegheny County Bar Association has appointed Meyer, Unkovic & Scott attorney Ronald L. Hicks to serve on its new Ad Hoc Committee for Diversity and Gender Equality.

The ACBA recently formed the Diversity & Gender Equality Ad Hoc Committee to advise and assist its Diversity Collaborative Committee (DCC), which works to address diversity issues within the legal community of Allegheny County and represent the interests of attorneys from minority backgrounds. As a member of the committee, Hicks will help the DCC assess and implement initiatives to improve diversity and gender equality within the legal profession.

A partner at Meyer Unkovic & Scott, Hicks is a civil trial and appellate lawyer who works closely with businesses and individuals on complex litigation, oil and gas disputes, and corporate and business matters, with particular service to the gay, lesbian and non-traditional family business community. He serves as co-chair of the firm’s Litigation and Dispute Resolution practice group and as chair of its Energy & Mineral Rights practice group. Hicks also serves as a member of the firm’s Diversity Committee.

Hicks is co-chair of the U.S./Canada Litigation Group of Meritas, a global association of select independent law firms. He also is a member of the Allegheny County, Pennsylvania and American Bar Associations, the Academy of Trial Lawyers of Allegheny County, the Western Pennsylvania Trial Lawyers Association, the Energy and Mineral Law Foundation, and the National LGBT Bar Association. Within the Allegheny County Bar Association, Hicks is a member of the Judiciary and LGBT Rights Committees.  His peers have rated him with an AV Preeminent rating, an achievement of Martindale Hubbell’s highest rating in legal ability and ethical standards, and he has been named to The Best Lawyers® for Commercial, Bankruptcy, Construction, Intellectual Property and Real Estate Litigation, and selected for inclusion as a Pennsylvania Super Lawyers® and the Million and Multi-Million Dollar Advocates Forum.

A graduate of Penn State University, Hicks serves on the university’s board of directors for its College of the Liberal Arts Alumni Society. He is also a member of the Board of Governors of the Republican National Lawyers Association and an elected member of the Republican Committees of Allegheny County and Pittsburgh. He is a past president of the Pittsburgh New Music Ensemble, the Pittsburgh Young Professionals and the South Shore Place Owners’ Association.

Hicks earned his juris doctor from Wake Forest University. He currently resides in Pittsburgh’s South Side neighborhood.

Schools can target commercial real estate tax assessments

The article, “Schools can target commercial real estate tax assessments”, by Frank Kosir, Jr. recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

Companies Have Growing Employment Liability for Temp Workers

Beth A. Slagle
bas@muslaw.com
412.456.2890

Companies that use staffing agencies to hire temporary workers are facing new liabilities as courts increasingly determine that the temporary workers qualify as employees of the company, not just the staffing agency.

In a recent court case, a discount retailer used a staffing agency to help it fill available positions in its stores. At one of the company's Pennsylvania stores, a temporary employee said he and other African-American workers were subjected to racist comments and discriminatory working conditions. Eventually, the store fired the African-American temporary workers.

The temporary employee then filed discrimination claims against the retailer under Title VII of the federal Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. The retailer, however, said that as a temporary worker from an agency, the worker did not meet the definition of an employee and therefore could not file a claim.

The federal district court agreed with the retailer, and dismissed the worker's claims. On appeal, however, the Third Circuit Court of Appeals carried out a closer examination of the employment relationship to determine whether the retailer was actually an employer and vacated the district court's dismissal.

There is no strict standard that determines whether a company that hires a temporary worker through a staffing agency qualifies as the worker's employer. Typically, courts examine factors such as which company pays the workers, hires and fires them, and supervises daily activities.

In the agreement between the staffing agency and the retailer, the staffing agency agreed to be responsible for hiring and paying "temporary employees" and workers reported to the agency if they were unable to make it to work for a scheduled shift. Once the temporary employee showed up to work at the retailer, however, the retailer was responsible for assigning appropriate duties to the worker and had full supervisory authority over him. Typically, the retailer assigned temporary workers to perform the same type of work as regular employees. If the retailer was unhappy with a temporary worker's performance, it could notify the agency to send an immediate replacement.

The Third Circuit Court decided that a reasonable jury might determine that the retailer was a joint employer with the staffing agency, and therefore would be liable for the discrimination claims.

Companies should keep in mind that the court's decision in the case is part of a larger trend of defining companies that hire temporary workers through a staffing agency as joint employers. Earlier in 2015, the National Labor Relations Board issued a decision in which it broadened the definition of joint employer to include a larger number of employment relationships involving staffing agencies.

Companies should also carefully review their relationships with temporary workers and staffing agencies to see whether they may qualify as the workers' employer, which opens up companies to many new liabilities. In some cases, companies may want to re-structure their relationships with temporary workers to avoid such liability. If the relationship with the temp worker is restructured, companies should be prepared that they will likely have to give up significant control over the temporary workers' activities if they want to avoid the liabilities of being an employer.

For more information about the legal hurdles of hiring temporary workers and other employment law matters, contact Beth Slagle, or any other Meyer, Unkovic & Scott attorney with whom you have worked.

MUS Attorney Inducted Into Allegheny County Academy of Trial Lawyers

rlh@muslaw.com
412.456.2837

Meyer, Unkovic & Scott today announced that attorney Ronald L. Hicks, Jr., was inducted into the Academy of Trial Lawyers of Allegheny County at its 2015 Fall meeting.

A partner at Meyer Unkovic & Scott, Hicks is a civil trial and appellate lawyer who works closely with businesses and individuals on complex litigation, oil and gas disputes, and corporate and business matters, with particular service to the gay, lesbian and non-traditional family business community. He serves as co-chair of the firm’s Litigation and Dispute Resolution practice group and chair of its Energy & Mineral Rights practice group. Hicks also serves as co-chair of the U.S./Canada Litigation Group of Meritas, a global association of select independent law firms, and as an arbitrator, an early neutral evaluator and a special master for disputes regarding e-discovery for the United States District Court for the Western District of Pennsylvania.

The purpose of the Academy is to achieve social justice by promoting sustained intellectual discourse among its members and judges to foster integrity, civility and competence within the legal profession. The Academy and its members are dedicated to preserving the jury system and the independence of the judiciary. Membership to the Academy is by invitation only and is limited to 250 attorneys who are actively engaged in civil trial practice from both the plaintiff's and defendant's side of counsel table in Allegheny County in state and federal courts.

Hicks is a member of the Allegheny County, Pennsylvania and American Bar Associations, the Western Pennsylvania Trial Lawyers Association, the Energy and Mineral Law Foundation, and the National LGBT Bar Association. Within the Allegheny County Bar Association, Hicks is a member of the Judiciary and LGBT Rights Committees and has been appointed to the Ad Hoc Committee for Diversity and Gender Equality. His peers have rated him with an AV Preeminent rating, an achievement of Martindale Hubbell’s highest rating in legal ability and ethical standards, and he has been named to The Best Lawyers® for Commercial, Bankruptcy, Construction, Intellectual Property and Real Estate Litigation, and selected for inclusion as a Pennsylvania Super Lawyers® and the Million and Multi-Million Dollar Advocates Forum.

A graduate of Penn State University, Hicks serves on the university’s board of directors for its College of the Liberal Arts Alumni Society. He is also a member of the Board of Governors of the Republican National Lawyers Association, serving as its Vice-President of Communications, and is an elected member of the Republican Committees of Allegheny County and Pittsburgh. He is a past president of the Pittsburgh New Music Ensemble, the Pittsburgh Young Professionals and the South Shore Place Owners’ Association.

Hicks earned his juris doctor from Wake Forest University. He currently resides in Pittsburgh’s South Side neighborhood.

Insurance ‘Renewal’ Requires Same Terms

Beth Slagle’s article, “Insurance ‘renewal’ requires same terms” recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

MUS Promotes Attorney Antoinette Oliver to Partner

aco@muslaw.com
412.456.2851

Meyer, Unkovic & Scott today announced that it has promoted attorney Antoinette Oliver to partner.

Oliver has worked as an attorney at Meyer, Unkovic & Scott since 2007. She is part of the firm’s Business Litigation, Energy & Mineral Rights Law, Insurance Coverage Litigation, Employment Law & Employee Benefits, and Intellectual Property Groups. She frequently represents clients in commercial disputes involving breach of contract, fraud, negligence, trade secrets, personal injury, products liability, insurance coverage and collection matters. She also helps clients in employment law matters and tax audits and litigation.

In addition to her business practice, Oliver manages the firm’s Landlord Tenant Project. The project is a signature mission of the Pittsburgh Pro Bono Partnership, operated in conjunction with Neighborhood Legal Services and the Allegheny County Bar Foundation. The project helps low income individuals who have been denied public housing or are facing difficulties in connection with private housing. The Allegheny County Bar Association and the Pennsylvania Bar Association each honored the successful project with their “Pro Bono Awards.”

In 2015, The Legal Intelligencer recognized Oliver as a “Lawyer on the Fast Track.” Pennsylvania Super Lawyers has also recognized Oliver to its list of “Rising Stars” each year since 2013.

Oliver earned her juris doctor in 2007 from the University of Pittsburgh School of Law and was the recipient of the Dean’s Scholarship for academic achievement. While in law school, she served as editor of the Pittsburgh Journal of Environmental and Public Health Law. She graduated cum laude from Smith College in 2002. Oliver resides in Mount Lebanon.