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© 2009 Spar & Bernsteins 'Law link' Blog
By Adam Handler
Civil Litigation Attorney, The Law Offices of Spar & Bernstein
How long does a divorce usually take?
Make no mistake, AN ACTION FOR DIVORCE IS A LAWSUIT. An action for divorce is litigious by its nature. The willingness of the parties (i.e. husband and wife) to compromise and/or fight determines how long a divorce usually takes. When any prospective client comes into my office inquiring about the length of a divorce case I explain there are two categories of divorce cases, uncontested (the parties amicably work out the issues out of court) and contested (issues are worked out in court by the parties or the Judge).
Understandably the greater and more sensitive the issues, the more likely a divorce will be contested. While these issues can involve children, spousal support and distribution of martial assets, not every couple chooses to litigate these issues. Many a time have I drafted settlement agreements that spell out these important issues to the mutual satisfaction of the parties without them stepping foot in a courtroom. Equally so, I have seen clients (despite my input) spend thousands of dollars fighting over very basic issues such as who “gets” the divorce and what grounds that spouse will obtain the divorce under. Again, its all up to the parties and their emotional tolerance……. and bank account….. that dictate whether the issues are worth fighting over.
Uncontested divorces usually involve signing on the dotted line and each person going his/her own way. Depending on the county in which the parties reside, an uncontested divorce can take 4-6 months (possibly longer if children are involved due to recent legislation requiring background checks of all parents) or as much as 8-9 months (sorry Bronx residents!!). Contested divorces usually last about 1 year but often post-judgment issues (usually involving custody and support) are raised and/or litigated later on which further extend the lawsuit even after the marriage of the parties is legally dissolved.
As I say to all my clients in either contested/uncontested matters, the sooner you start, the sooner its over. If you and/or your spouse are contemplating a divorce, please give the Law Offices of Spar & Bernstein, P.C. a call. I will be happy to discuss your case, your issues and your lawsuit with you so you can make an informed decision as to the best manner in which to proceed.
Please find below another installment in our popular regular series of frequently asked questions about immigration law. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.
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Question: I am a permanent resident. I filed for my son when he was 19. A year later the application was approved, but we had to wait for another five years until the priority date became current. I recently was told that the priory date is not current yet. I just don’t understand why the immigration office keeps telling me I have to wait until it becomes current, because I filed for him before he turned 21 and the visa bulletin says that the priority date is current for children under 21. Is this just some mistake? Isn’t there a new law that prevents this from happening?
Answer: Your son actually “aged out,” meaning he turned over the age of 21 for immigration purposes. This is important because there is a quota on the number of green cards issued each year to different categories of people. Due to the quota, there is a shorter waiting period for a green card for children under 21 than for children over 21. It is therefore beneficial to be under 21 for immigration purposes because you can get a green card faster. Under the Child Status Protection Act, if a legal-permanent-resident parent files for the child, the child’s age will be calculated as the age on the date that the priority date of the I-130 becomes current, minus the number of days that the initial I-130 visa petition was pending. For example, let’s imagine that your son is at least 24 years old. Assume that visas first became current this month for your son’s priority date if he were a child less than 21 years of age. However, because you son is now 24, the Child Status Protection Act does not help him. This is because it took one year for the I-130 to be approved (add one year to his age, is 21 +1 = 22 years old). On the other hand, if priority dates would have been current for the “under 21 category” by the time of your son’s 22nd birthday, then he would have been considered under 21 for immigration purposes, and thus would not have “aged out.” As it stands, your son is how considered a “child over 21” and has several more years to wait on the visa waiting list. However, there is another option available to him. Since you have had a green card for more than 5 years, you can apply for your citizenship now. If you were to become a US citizen, then you would be able to upgrade your son’s petition to that of an unmarried son of a US citizen. This would presumably make a green card available to him based on the current waiting list for unmarried sons and daughters of US citizens.
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Question: I have been on H-4 for almost three yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification:
1. If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school?
2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same?
3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS? Will I get an approved F-1 by then?
Answer: Point by point –
1. No. An I-539 is used if you want to change status within the USA.
2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.
3. No one can predict that. Sorry.
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Question: I came to US on my L-2 visa and am here for 1 month. Meanwhile my company has applied for my L-1B visa in Cameroon. Should I have to travel back to my native country for Visa stamping or I can apply for COS from L-2 to L-1B in US itself? Since I already own L2 visa is there any chance that my L1B is rejected as I have been working in the company for one year and two months only now. In case if my L-1B is rejected is there will be any impact on my already approved L-2 visa? Can I come back to US again using L-2 visa?
Answer: You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.
Not exactly, but you get the idea.
And it’s still coming down!
Which has prompted us at Spar & Bernstein to open our offices a little late this morning and probably close them a little early.
We’ll keep you posted.
And one last thing that’s our mind: WE ARE TOTALLY SICK OF THIS WINTER ALREADY!
Source: New York Times
A Texas court threw out the death sentence on Wednesday of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.
But the decision from the State Court of Criminal Appeals did not mention the affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.
The prisoner, Charles D. Hood, was convicted in 1990 in the fatal shootings of Ronald Williamson and Tracie Lynn Wallace, a couple he lived with in Plano, Tex. Mr. Hood has denied committing the murders, though he was driving Mr. Williamson’s Cadillac when he was arrested.
For much of the nearly 20 years since a jury convicted him, Mr. Hood tried to prove that the judge who presided over the case, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., had an extramarital affair and that this constituted a conflict of interest. In 2008, Ms. Holland and Mr. O’Connell admitted the affair, which they said was short-lived and had ended three years before Mr. Hood’s trial.
EPI’s Latest “Study” of H-1B and L Usage: The Danger of Unsupported Assumptions
By Eleanor Pelta, AILA First Vice President
The latest salvo in the war against H-1B workers and their employers (and this time, they’ve thrown L-1’s in just for fun,) is the Economic Policy Institute’s briefing paper by Ron Hira, released last week, which concludes that the practice of using H-1B and L-1 workers and then sending them back to their home countries is bad for the economy. While Hira’s findings are certainly headline-grabbing, the road that Hira takes to get there is filled with twists, turns and manipulations and simply lacks real data.
Hira starts with the premise that some employers use H-1B’s and L visas as a bridge to permanent residence, and some employers use those categories for temporary worker mobility. (His particular political bent is belied by his constant usage of the term “guest-worker status”—a term that brings with it the politically charged connotations of the European guest worker programs for unskilled workers—for the practice of bringing H-1B’s and L’s in to the U.S. on a temporary basis.) After examining his “data,” he divides the world of employers into two broad categories:
* Bad guys (generally foreign employers, no surprise, or U.S. employers with off-shore companies in India) that bring in H-1B and L workers for temporary periods, exploit them, underpay them and send them home after they get training from the American workers whose jobs they will outsource when they return home
* Good guys (U.S. corporations –Hira uses the more genteel label, “firms with traditional business models”) that bring H-1B and L workers to the U.S., pay them adequate wages, and sponsor them for permanent residence, thereby effecting a knowledge transfer to American colleagues that is good for the economy
Hira’s tool, a statistic he calls “immigration yield,” is simply a comparison of H-1B and L usage and the number of PERM applications filed by the highest users of those visas. He essentially concludes that because the highest users of H-1B’s and L’s are Indian consulting companies, and these companies have only a minimal number of PERM’s certified, they are using H’s and L’s as cheap temporary labor. He is unable to explain away the high number PERM filings of one of the IT consulting companies, and so he addresses this anomaly by saying “part of the explanation might be that it is headquartered in the United States.”
To care about others. To be passionate in your work and in everything you do. I feel that being an immigration attorney in New York City is one of the greatest experiences in the world. I love the diversity and I love that we are making a difference in someone’s life.
- Katie Sae Jung Lee
Immigration Attorney, The Law Offices of Spar & Bernstein
Please find below another installment in our popular regular series of frequently asked questions about immigration law. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.
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Question: I am a US citizen and have a good job. My boyfriend of 9 years came here on a visitor visa in June 1996. I just found out that he is using someone else’s social security number with that person’s name with a fake green card. He is working that for the past five years. We married in October 2008. What will happen to me now that I married that man? I have four children to take care of. I know if he finds out I know this about him I know he might act in a violent manner. He always picks up the mail every day. I found his passport and birth paper. I am scared. I don’t know what else he is hiding. Please help.
Answer: You have not committed fraud or misrepresentation so nothing will happen to you. As a US citizen, you can file for your husband and since he entered on a visitor visa, he is eligible to adjust status in the US. However, because he has been using someone else social security number and green card, he will require a waiver to overcome the fraud he has committed. Should you decide to file for your husband, your husband will need to come in to see one of our most experienced attorneys to determine whether it is in his best interest to file a waiver. Just because a waiver is filed, it does not mean that it will be granted. It would be extremely valuable to you and your husband to discuss the pros and cons of filing the waiver with an attorney. However, if you are afraid that your husband may become violent with you if he finds out that you know about his fraud, we recommend you see a marriage counselor who can counsel you on that end. Your well-being is of utmost importance.
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Question: My wife has been in US for six months on H-1 and is going back to India. In India if she applies for H4, will it be necessary to carry any paystubs generated during her stay in US on H-1? Is there a possibility that the consulate might demand for her W2 and paystubs before stamping her H4 visa?
Answer: The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa
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Question: We have a little brother (14 yrs old) in Haiti whom our father (non-citizen) had filed for in October 2002. We already have the approval for him, but unfortunately, our father passed away last year. We would like to know what could we do in that situation: should we let the immigration know that our father died or should we let it slide? Can our mother (non-citizen) take over the case? In case she is not eligible can one of us (none are citizens) take over?
Answer: The general rule is that if the petitioner dies, the visa petition will be automatically cancelled. However, you can substitute in a legal close family member to complete the case, if you can prove hardship to the beneficiary (in this case, your brother). You or your mother can complete the case if either of you are residents. You must however petition the Immigration Service to reinstate the visa petition. Whoever can provide the better affidavit of support is the proper person to substitute to complete the case for your deceased father.
Every single day, we get a slew of Facebook and Twitter messages asking how to best reach us.
And, of course, we answer each and every one as quickly as we can.
But with the magic of a single post here, we’ll make it easy for you and us.
By email: info@lawsb.com
By phone:
1-212-227-3636
1-800-law-link
1-800-529-5465
We’re located in Manhattan, New York City, right across from City Hall
225 Broadway, 5th Floor
We handle legal issues in the realm of immigration, personal injury, criminal defense, taxes, and matrimonial/family.
So, please, if you have a legal problem, need our help, here we are. Ok? Look forward to speaking to you. 
Fascinating video about too much law drowning our way of life. “The land of the free has become a legal minefield,” says Philip K. Howard.
“You can never do a kindness too soon, for you never know how soon it will be too late.”
- Ralph Waldo Emerson
![divorce[1]](http://sblawlink.com/wp-content/uploads/2010/02/divorce1-300x300.jpg "divorce[1]")
By Adam Handler
Managing Attorney, The Law Offices of Spar & Bernstein
What are the grounds for divorce?
Many states, including New Jersey, have “no fault” divorces that allow parties to dissolve their marriage based on irreconcilable differences (defined as differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation). New York, however, in its archaic nature demands that parties show that either the husband or the wife is at fault for the marital problems and allege the following grounds (or reasons) for divorce:
1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The physical or sexual (known as constructive) abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
Usually, the default choice for many lawyers and litigants is Constructive Abandonment as it is the easiest to prove by evidence. All that is required is that either the husband/wife alleges that there has been no sexual intercourse for one year or more. No moving out, no need to dig up mistresses and/or no need to set forth usually ugly details to prove abuse. I would estimate that nearly 95% of my divorces cases are resolved under terms of Constructive Abandonment and until New York State gets with the times and follows the other “no fault divorce” states, it will be the most common way for two married folks to finally call it quits.
Will Coley has been an advocate for immigrants and refugees in Charlotte, New York/Newark, and Los Angeles as well as in Zimbabwe and Great Britain, for organizations such as Catholic Charities, American Friends Service Committee, Jesuit Refugee Service and Homies Unidos. For many years, he served as the chair of the Detention Watch Network leadership committee and the detention committee of the New Jersey Immigration Policy Network. Will has a Masters in Public Administration from Columbia University and a certificate in Forced Migration Studies from the Refugee Studies Centre at the University of Oxford. Through Aquifer Media, Will currently assists nonprofit organizations, foundations and community groups utilize digital social media in their strategies for community-building, advocacy and leadership development. More information can be found at http://aquifermedia.com and http://willcoley.com.
We love the self-description on his Twitter page: I’m a latte-drinking, bike-riding, NY Times-reading, taco-loving, social justice do-gooder originally from North Carolina now living in Los Angeles.
The following is our exclusive interview with Mr. Coley:
Spar & Bernstein: What got you involved in activism?
Coley: Even though I was involved in several causes in high school and college, I guess my current activism really took off when I began volunteering to teach English to Vietnamese and Montagard refugees recently resettled in my hometown of Charlotte, North Carolina. I started initially out of curiosity: here in my community were people from the other side of the world with compelling stories, experiencing the culture collision that had fascinated me in college. But ultimately it was seeing the challenges they faced and the shabby welcome they received that challenged me, my values and my faith. Eventually I got a job as a caseworker with the resettlement agency. One of my first assignments was taking refugee families to the DMV to get state ID cards. The women who worked there saw me so often, they’d say, “Here comes Will with all his little people.” Slowly I brought them around to understand that these families deserved assistance like everyone else. And in the end, the refugee communities themselves helped each other with the next step of getting driver licenses.
S&B: What attracted you to the cause of immigration/immigration reform?
Coley: I take to heart the Bible verse from Exodus that says we should “treat strangers as one of our own because [we] were once strangers in Egypt.” When I was seven years old, my father died in a commercial plane crash. My mother, who had lived 20 different places in the 11 years she was married to a military man, moved our family back to the Charlotte area to be near my four grandparents. I often think that the experience of grief, starting over and being a stranger resonated in some small way with the experiences of the refugees I assisted, people who had lost everything. While I started out assisting refugees and then asylum-seekers, I have continued learning about the injustice often faced by newcomers to this country. I often think about the Civil Rights movement and how it was about confronting injustice faced by African-Americans but it also challenged all Americans about the sort of country we wanted to live in. For me, as someone without recent immigration in my family, immigrant rights are also about building the nation we believe in. While the movement should be lead by immigrants, it concerns us all.
S&B: If you were able to change the immigration laws tomorrow, how would you change them?
Coley: Much of my career has taken place after the passage of the 1996 Immigration Act. After graduate school in New York, I got a job with Jesuit Refugee Service to start social service programs for detained asylum seekers in the Elizabeth Detention Center. We launched English classes and the volunteer visitor project that continues with community support, 13 years later. When I witnessed the impact of mandatory detention and lack of discretion for immigration judges, I understand the urgent need for reforming the system. I don’t think more enforcement is the answer: I’ve seen how overzealous and overfunded government agencies have destroyed the lives of individuals, families and communities. This is why I don’t like the label or strategy called “Comprehensive immigration Reform” since it assumes we need to compromise on more enforcement. Even without legislation, President Obama can make administrative changes that could improve the lives of thousands of people. Some might think that this is “Outside the Beltway” naivety but I see it as being accountable to the communities we serve.
S&B: What other causes interest you?
Coley: Obviously immigration doesn’t happen in a vacuum. I’m concerned about issues that create forced migration, like war, conflict, human rights abuses, and supposedly Free Trade. I’m also sort of an outsdoor person so I care about environmental and parks funding issues.
S&B: What are the goals of your activism?
Coley: Since moving to Los Angeles, I’ve found myself increasingly drawn to social media. To me, these online tools are exciting because of how well they mesh with community organizing and leadership development, something that’s often been a part of my work. The Digital Divide is certainly a reality that many communities face. But I believe that the experience of making media, whether it’s a blog post, video short or podcast, is an experience that harnesses creativity and teaches leadership, collaboration and challenges injustice. We can literally make our voices heard through our own networks. Through Aquifer Media, I’ve been consulting with lots of immigrant rights groups that are coming to terms with the new communications landscape. I try to help them see the opportunity we now have. I know that within our movement and community organizing trainings we love butcher paper-based presentations by small groups (I do too). But why can’t we think how to do organizing that results in digital content that immigrants themselves can share with the broader world? (No, we don’t have to ditch butcher paper: relax).
S&B: We saw that you posted this quote by Indian writer and activist Arundhati Roy on your Facebook page: “Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing.” Why is this quote so important to you?
Coley: I like this quote because it’s about hope and knowing that we have something better to look forward to: the nation and the world that we believe in. I also think about how Dr. Martin Luther King once quoted theologian Theodore Parker: “The arc of the moral universe is long but it bends towards justice.”
S&B: Aside from your activism, what do you do?
Coley: I’ve been taking creative writing classes to explore some of things I’ve learned working in this field. I’ve also been putting together work about social media strategy for social justice nonprofit organizations. To be honest, though, it’s hard to make time for writing with the constant siren song of social media beckoning. I’m learning how not to be less of a “human RSS” and participate fully in conversations online that inform my work and writing.
S&B: How long have you lived in LA? And what made you move from NYC? Is the LA activist community different from the one here in New York?
Coley: I’ve been in LA four years now. It took me a while to not be one of those “complaining former New Yorkers” in LA. I still miss New York but have found things to appreciate out here: the beach, the mountains, the weather and no snow. LA has an unexpected charm and many organizations here are doing great work on immigrant rights.
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Note: Mr. Coley is currently working with the National Immigrant Bond Fund (http://immigrantbondfund.wordpress.com/ ) and the Detention Watch Network (http://detentionwatchnetwork.wordpress.com/) on their social media strategy as a component of their campaigns.
“Scientists tell us that the fastest animal on earth, with a top speed of 120 ft/sec, is a cow that has been dropped out of a helicopter.”
- Dave Barry
Please find below another installment in our popular regular series of frequently asked questions about immigration law. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.
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Question: I came to the United States seven years ago. Soon after I came to the US as a green card holder, I started working for my employer. I guess because all of the reported problems with employers hiring illegal aliens, my employer is now requesting proof that I am legal to work in the US, but I cannot find my green card. What do I do?
Answer: You can file Form I-90 with USCIS to obtain a new lawful permanent resident card. USCIS may stamp your passport as evidence of your lawful permanent residence while a decision on your application (Form I-90) is pending. However, when you file this form, you will have to be fingerprinted and criminal background will be checked. If you have a criminal record, we strongly advise that you consult an attorney at Spar & Bernstein, P.C., as certain criminal convictions may render you removable from the US. Furthermore, since you have been a resident for more than five years, you may want to consider filing for naturalization.
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Question: I came to USA with an H-1B Visa; my family’s H-4 visa was also issued with me. After coming to USA I transferred my H-1B visa to new company and I got my transfer approved and I got a new H1-B with new I-94, my question is whether they can travel with the old H-4 or not?
Answer: If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.
In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.
Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.
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Question: I came to the US 8 years ago on a tourist visa and subsequently overstayed my allotted time. I’m married now and have filed for my adjustment of status. I have not yet received my green card. I have an emergency back home. A friend suggested I should obtain an advance parole to travel home and then return. Can I do this?
Answer: In theory, yes, you can. However, you are taking a big chance. The Immigration Service will most likely grant you the advance parole and you will be able to leave the country. However, upon return several things can happen. Upon your return, you will be allowed back in the United States, but you will be subject to a ten year bar to obtaining your green card as a result of your overstay. You would require what is called an I-601 waiver at your adjustment interview. The I-601 waiver is based on hardship to your wife who I presume is a US citizen and is granted only on discretionary basis. Meaning, that your adjustment of status can be denied and you may not get your green card depending on the amount of hardship you can prove. That’s why you’re taking a chance.
