The 7th Annual Nuts & Bolts CLE

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1 The 7th Annual Nuts & Bolts CLE Friday, December 10, 2010 Presented by: The 19th Judicial District Bench Bar Committee Sponsored by: The Weld County Bar Association, Inc.

2 1. Seminar Schedule 2. Program Faculty Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE TABLE OF CONTENTS th Judicial District Bench Bar Committee Information 4. State of the Courts 5. Breaking Down the World of Business Immigration 6. Amending Recorded Covenants/HOA Update 7. Criminal Law Update 8. DUI Basics & Tips for Criminal Trial Attorneys 9. Ethical Issues in Online Legal Advertising & Social Media 10. Family Law Update 11. Personality Disorders and How to Deal with them in Your Family Law Practice 12. Civil Case Law and Legislative Update 13. Ethics with John 14. Registration List 15. Weld County Attorney List 16. WCBA Bar Call Newsletter December 2010

3 The 7th Annual Nuts & Bolts CLE Seminar Schedule 7:30 a.m. Registration Opens / Continental Breakfast 8:15 a.m. State of the Courts - The Honorable James F. Hartmann, Chief Judge, 19th Judicial District 8:30 a.m. Practice Pointers from the Bench (a Q&A Session) Featuring the following from the 19th Judicial District: - The Honorable James F. Hartmann, Jr. Chief Judge - The Honorable Julie Hoskins, District Court Judge - The Honorable Elizabeth Strobel, District Court Judge - The Honorable Thomas J. Quammen, District Court Judge - The Honorable Dana Nichols, County Court Judge - Magistrate Mark Gonzales, County Court Magistrate - Moderated by William L. Crosier, Esq. 9:30 a.m. Networking Break 9:50 a.m. Breakout Sessions (see next page) 11:50 a.m. Networking Buffet-Style Lunch (included with registration) 12:30 p.m. Ethical Issues in Online Legal Advertising & Social Media - Special Guest Speaker: Josh King, Esq., General Counsel, AVVO, Inc. 2:00 p.m. Networking Break 2:20 p.m. Breakout Sessions (see next page) 3:30 p.m. Networking Break 3:50 p.m. Ethics with John - Magistrate John Jostad, District Court Magistrate, 8th Judicial District 4:50 p.m. Adjourn

4 The 7th Annual Nuts & Bolts CLE Breakout Sessions Track A (Civil-AM): 9:50 a.m. Breaking Down the World of Business Immigration - David A. Harston, Esq., Elkind Alterman Harston, PC 11:00 a.m. Amending Recorded Covenants/HOA Update - Lauren C. Holmes, Esq. Orten Cavanagh Richmond & Holmes, LLC Track B (Civil-PM): 2:20 p.m. Civil Case Law and Legislative Update - The Honorable Elizabeth Strobel, District Court Judge, 19th Judicial District, Jennifer Lynn Peters, Esq., Brett Payton, Esq., & Michael C. Payne, Esq., Otis, Coan & Peters, LLC Track C (Criminal): 9:50 a.m. Criminal Law Update - The Honorable Thomas Quammen, District Court Judge, 19th Judicial District and Shannon D. Lyons, Esq., Collins Liu & Lyons, LLC and of counsel to Otis, Coan & Peters, LLC 11:00 a.m. DUI Basics & Tips for Criminal Trial Attorneys - Jerry Roselle, Esq. Track D (Domestic): 2:20 p.m. Family Law Update - The Honorable Julie Hoskins, District Court Judge, 19th Judicial District and Amy Antommaria, Esq., Antommaria & Sledge, LLC 2:50 p.m. Personality Disorders and How to Deal with them in your Family Law Practice - Robert M. Smith, Esq. and Dr. Kathleen McNamara

5 IT S TURKEY TIME AGAIN! Weld County Legal Services needs your help! Every $10.00 donation will buy one turkey! Last year, WCLS donated over 75 turkeys to the Weld County Food Bank. This year, we want to double that amount so every family in Weld County can enjoy a true turkey dinner this holiday season. Law Firm Challenge: The attorneys at Otis, Coan & Peters, LLC are committing to raise at least $ for the WCLS turkey fund this year. We challenge the other law firms in Weld County to match or exceed this donation! A special turkey prize will be waiting for any firm that can raise more money than OCP! To donate, please send your $10.00 or more to: Jody Pic WCLS th Street, Suite 202 Greeley, CO For more information, please call Jody Pic at or

6 Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE PROGRAM FACULTY The Honorable James F. Hartmann, District Court Judge, 19 th Judicial District Judge Hartmann was appointed to the district court in 2003 after 13 years in the District Attorney's Office. His last position was as the Weld County Chief Deputy District Attorney. He obtained his law degree from the University of Idaho in Moscow, Idaho. He was appointed Chief Judge of the Nineteenth Judicial District on July 1, The Honorable Julie Hoskins, County Court Judge, 19 th Judicial District Judge Hoskins was appointed to the District Court bench in July 2007, after serving nearly two years on the County Court bench. Previously, she served as a district court magistrate for two years. Prior to serving as a magistrate, Judge Hoskins was in private practice for ten years with the firm of Houtchens, Houtchens and Greenfield. Judge Hoskins is a graduate of The Dickinson School of Law located in Carlisle, Pennsylvania. She received her undergraduate degree from Bethany College located in Bethany, West Virginia. Magistrate John A. Jostad, Larimer County Court, 8 th Judicial District Magistrate Jostad was appointed magistrate on February 1, He handles the domestic/juvenile docket. Prior to his appointment, Magistrate Jostad had been in private practice for 21 years. His practice while in private practice focused on administrative law, litigation and professional responsibility, with a specialty focus on aviation and employment matters. Magistrate Jostad is a graduate of the University of Denver College of Law. The Honorable Dana Nichols, County Court Judge, 19 th Judicial District Judge Nichols was appointed to the County Court bench in She served as a Deputy Public Defender for nearly 10 years in the Greeley, Pueblo, Colorado Springs, and the State Appellate offices. She also spent three years in private civil practice in Denver with the firm of Kennedy & Christopher, P.C. Judge Nichols obtained her law degree from the University of Colorado School of Law and has an undergraduate degree in biological science from Colorado State University. Judge Nichols is currently assigned to Division 5, hearing misdemeanor, traffic offenses, and civil matters.

7 The Honorable Thomas Quammen, District Court Judge, 19 th Judicial District Judge Quammen was appointed to the District Court bench for the Nineteenth Judicial District in July of Prior to this appointment, he served as the Administrative Chief Deputy District Attorney for the Seventeenth Judicial District (Adams and Broomfield counties) from January 2005 to July He was with the District Attorney s Office for the Nineteenth Judicial District from June 1981 through December 2004, serving as the Assistant District Attorney for the last 16 years of that tenure. Born and raised in Greeley, Judge Quammen received his Bachelor of Arts degree from the University of Northern Colorado, Master s degree at the University of Colorado in Boulder and Juris Doctorate from the University of Missouri in Kansas City. The Honorable Elizabeth Strobel, District Court Judge, 19 th Judicial District Judge Strobel was appointed to the district court bench effective July 1, She formerly presided in Division 7, the domestic relations and dependency neglect docket she covered as a magistrate prior to her judicial appointment. She currently handles civil and family law matters. Judge Strobel received her undergraduate degree from Montana State University in 1974 and her Juris Doctorate from the University of Colorado in She was with the Weld District Attorney s Office for five years and began private practice, emphasizing family law, in The Honorable Dinsmore Tuttle, District Court Judge, 19 th Judicial District JudgeTuttle was appointed District Court Magistrate in October of She presided over the delinquency docket for three years and then in the Family Court, hearing dependency & neglect and domestic relations cases. In January 2009, she became a district court judge presiding primarily over a criminal docket. Judge Tuttle graduated from the University of Denver Law School in She served as a public defender in Adams, Weld and Larimer Counties before going into private practice in She currently serves on the Standing Committee on Family Issues. Judge Tuttle was the recipient of the 2007 Colorado Judicial Instutute Magistrate of the Year award. Magistrate Mark Gonzales, Weld County Court, 19 th Judicial District Magistrate Mark Gonzales was appointed to his position in January of His current docket includes District Court child support, paternity, juvenile and domestic matters along with County Court civil, criminal, and small claims cases. He received his undergraduate degree from the University of Northern Colorado in 1994 and Juris Doctorate from the University of Denver in Prior to his appointment, he served as a Weld County Deputy District Attorney, Greeley Assistant City Attorney, as well as a private and corporate attorney. Magistrate Gonzales served on the Nineteenth Judicial District Judicial Nominating Commission as well as other boards. He currently is vice president of the Weld County Bar Association.

8 Amy Antommaria, Esq., Antommaria & Sledge, LLC Amy received a Bachelor of Science in Business Administration in 1990 and a Master of Arts in Liberal Studies in 1992 from Valparaiso University in northwest Indiana. She completed her Juris Doctor at the University of Denver, Sturm College of Law in After graduating from law school, Amy received an invaluable experience in the inner workings of the Colorado Judicial System as a Law Clerk for the Honorable Judge Harlan Bockman in the 17th Judicial District. In 2001, Amy joined Jorgensen, Motycka & Lewis, P.C. as an Associate Attorney where she practiced Family Law, Real Estate Law, Probate, Collections and other general litigation. In 2003, Amy was offered and accepted a Partner/Shareholder position at Jorgensen Motycka & Lewis, P.C. In August of 2005, Amy partnered with Krea Sledge to form the law firm of Antommaria & Sledge, LLC. Although Amy's focus is family law, which includes divorce, custody, child support, visitation, legal separation, and paternity, she accepts cases involving debt collection, real estate and general litigation. When not practicing law, Amy has volunteered her time to the Weld County Bar Association, Weld County Legal Services, Access to Justice Committee and the Women's Weld County Bar Association. Amy served as the President of the Women's Weld County Bar Association in 2005, Treasurer for the Women's Weld County Bar Association in 2006, President of the Weld County Bar Association for the term and Treasurer for Weld County Legal Services for the term. Public Service is very important to Amy including assisting individuals that are unable to afford legal services. Amy has donated her time to the local Call-a- Lawyer program, the Divorce/Allocation of Parental Responsibilities monthly informational meetings, Grandparent Rights meetings and annually receives appreciation for her many hours of pro bono services through Weld County Legal Services. David Harston, Esq. Elkind Alterman Harston, PC David (or Dave) has been practicing immigration law exclusively, including business, family, asylum and deportation defence, since David graduated from the University of Denver in 1998 with a law degree and a master's degree in International Studies. He has been a member of the American Immigration Lawyers Association since 1999, served on the AILA Colorado Chapter's Executive Committee from 2004 to 2009, and was the Chapter Chair for AILA Colorado from David was named an "Up-and-Coming" lawyer by Law Week Colorado in He served as the vice chair for the government/board/bylaws working group on AILA's 2008 Strategic Planning Committee and a member of the Bylaws Committee ( ). He is a member of the Colorado Bar Association, serves on the Executive Council for the Immigration Law Section ( ), and currently serves as the Section Chair ( ). He is a recipient of 1998 Public Interest Law Group Grant to clerk at the Center for Human Rights Advocacy in Boulder, Colorado. In 1995, David interned in the Human Rights Program at the Carter Center in Atlanta, Georgia, founded by former President Jimmy Carter and former First Lady Rosalynn Carter. David received his bachelor's degree in history and philosophy from Allegheny College in Pennsylvania and studied abroad in Spain and Costa Rica. David is fluent in Spanish. When not practicing law, David enjoys spending time with his wife and two daughters. He also enjoys travelling, trail running, fishing, and an occasional Rockies baseball game.

9 Lauren Holmes, Esq., Orten Cavanagh Richmond & Holmes, LLC Lauren provides experienced and practical advice to associations as a transactional attorney. Lauren has extensive experience identifying legal issues in a proactive manner and recommending realistic solutions based upon a keen understanding of homeowners associations. In addition to providing day-to-day legal advice, she educates boards on how to conduct legal and effective meetings, has assisted in successfully amending governing documents and has assisted associations with communicating the importance of the amendment and obtaining the necessary owner approvals. Lauren aids associations in preventing the escalation of disputes with owners, and reviews association insurance policies for compliance with governing documents, Colorado law and best business practices. Lauren also assists associations in dealing with local governments on issues related to code enforcement, condemnation, new development, easements and other issues. Lauren is a frequent speaker at educational programs for managers and boards sponsored by both the firm and community organizations, and has been recognized for her dedication to the education of board members and managers. Josh King, Esq. General Counsel and Vice President of AVVO, Inc. Josh King is vice president of business development & general counsel of Avvo. He is responsible for the company's business development, professional and government relations, and legal affairs. Prior to joining Avvo in October 2007, Josh was director of business development for Clearwire, where he acquired new markets that expanded the wireless broadband company's market reach to include tens of millions of potential new customers. Previous to Clearwire, Josh was vice president, corporate development at AT&T Wireless, where he led much of the company's mergers and acquisitions work and was instrumental in the $46 billion sale of the company to Cingular, the largest cash transaction in history. Josh has also worked as general counsel for Cellular One of San Francisco and as a litigation attorney. Josh earned a J.D. from the University of California Hastings College of the Law and a bachelor's degree from the University of Oregon

10 Shannon Lyons, Esq., Otis Coan & Peters, LLC Shannon Lyons received his undergraduate degree in Economics from Grinnell College in Iowa in He received his law degree from Capital University in Columbus, Ohio in 1995, where he was a member of the Law Review. While in law school, Mr. Lyons interned with Justice Andrew Douglas of the Ohio Supreme Court and Rep. Vernon Sykes in the Ohio General Assembly. Mr. Lyons is admitted to practice in all courts in the State of Colorado and the United States District Court for the District of Colorado. Mr. Lyons is a member of the Colorado Bar Association and the Weld County Bar Association. Mr. Lyons is a regular presenter for the Weld County Bar Association s annual Nuts & Bolts seminar. In 2007, he was honored with the Professionalism in the Law Award by the Weld County Bar Association. Following his admission to the Colorado Bar in 1995, Mr. Lyons first worked for Colorado Rural Legal Services in Montrose. In 1997, he became a Deputy State Public Defender in Pueblo and later Greeley. He remained with the Greeley Public Defender s office through 2001, handling the most serious levels of criminal cases. In 2001, he was a founding member of the Greeley law firm of Collins, Liu & Lyons, LLP, where he currently remains as the Managing Partner. Mr. Lyons joined Otis, Coan & Peters, LLC, as of counsel, in 2010, and will be senior litigation counsel full time as of January 1, Mr. Lyons has specialized in trial litigation throughout his career. He has conducted over 100 trials, nearly all of which have been jury trials. Mr. Lyons has appeared before courts all across the State of Colorado in thousands of pre-trial hearings, and litigated complex constitutional and statutory issues. Mr. Lyons currently volunteers as a youth coach for the City of Greeley Recreation Department. He served as a member of the Board of Directors for the American Red Cross, Northern Colorado Chapter from 2007 to Mr. Lyons was a member of the City of Greeley Citizens Budget Advisory Committee from 2001 to From 1998 to 2002, Mr. Lyons served as a board member on the local Senate Bill 94 Committee. Mr. Lyons litigation practice with OCP emphasizes all aspects of real estate, business and banking related matters. Dr. Kathleen McNamara, PhD. Dr. Kathleen McNamara, Ph.D. is a psychologist practicing in Fort Collins, CO and is a member of the Colorado Chapter of the Association of Family and Conciliation Courts.

11 Michael C. Payne, Esq., Otis, Coan & Peters, LLC Mr. Payne received his undergraduate degree in Geography and American Studies from the University of Kansas in After spending a year teaching English in Paris and three years working for the Fulbright Program in New York City, Mr. Payne returned to the University of Kansas, where he obtained his law degree in As a law student, Mr. Payne served as a judicial law clerk to Judge Steve Leben, now of the Kansas Court of Appeals, and Judge Janice Russell, a Kansas district court judge. Mr. Payne also acted as the Managing Editor of the Kansas Journal of Law & Public Policy. Prior to joining OCP in 2008, Mr. Payne practiced in the area of covenants and homeowner s association law in the Denver area and, prior to that, was an associate attorney with a general practice firm in Greeley. Mr. Payne is admitted to practice in the State of Colorado and the United States District Court for the District of Colorado. He is a member of the Colorado Bar Association, the Weld County Bar Association, and the Larimer County Bar Association. Mr. Payne is a graduate of the inaugural class of Leadership Northern Colorado and is presently serving as the President of the Byron White Chapter of the American Inns of Court. In 2010, Mr. Payne was named a Colorado Rising Star by Colorado Super Lawyers Magazine and the 2010 Small Claims Court Mediator of the Year by the Weld County Bar Association. Mr. Payne presently serves on the Board of Directors for the Community Foundation Serving Greeley and Weld County and is a member of the Northern Colorado Commercial Association of Realtors. Mr. Payne s practice emphasizes real estate, business, commercial law and creditors rights, including litigation and transactional matters. Brett D. Payton, Esq., Otis, Coan & Peters, LLC Mr. Payton received his undergraduate degree in Sociology and Criminal Justice from Colorado State University in Fort Collins in 1996 and his Law Degree from Southwestern University School of Law in Los Angeles in Mr. Payton is admitted to practice in the state and federal courts in Colorado and California. In 2004 Mr. Payton joined Silva, Clasen and Raffalow, where he represented Mercury Insurance and provided coverage and claims guidance for the company on all Mercury s lines of coverage across the nation. Mr. Payton joined OCP in In May 2010, he was awarded the Frank Henderson Award for professionalism in the practice of law by the Weld County Bar Association. His practice focuses on real estate and business litigation.

12 Jennifer Lynn Peters, Esq., Otis, Coan & Peters, LLC Jerome B. Roselle, Esq. Ms. Peters received her undergraduate degree in Political Science from the Metropolitan State College of Denver in 1996, and her law degree from the University of Colorado at Boulder School of Law in 1999, where she was a published member of the Colorado Journal of International Law & Policy. Prior to joining OCP in 2002, Ms. Peters served as law clerk to the Honorable William L. West, Senior District Court Judge and former Chief Judge of the 19th Judicial District (Weld County). Ms. Peters is admitted to practice before all courts in the State of Colorado, the U.S. District Court for the District of Colorado, including the U.S. Bankruptcy Court, the 10th Circuit Court of Appeals, and the United States Supreme Court. Ms. Peters previously served as a vice-president and member of the executive council of the Colorado Bar Association, and is currently the President of the Weld County Bar Association. She is also currently a member of the City of Greeley s Civil Service Commission and has served as the Municipal Court Judge for the Town of Kersey since Ms. Peters practice emphasizes all areas of real estate, business and commercial litigation, probate litigation, and appeals. Mr. Roselle is an attorney in Fort Collins, Colorado whose practice emphasizes all areas of criminal law including: Assault; Burglary; Civil Forfeiture; Criminal Conspiracy; Criminal Defense; Criminal Forfeiture; Criminal Fraud; Criminal Investigation; Drivers License Suspension; Driving Under the Influence; Extortion; Extradition; Felonies; Forgery; Habeas Corpus; Homicide; Manslaughter; Misdemeanors; Murder; Parole and Probation; Search and Seizure; Theft; Traffic Violations; Weapons Charges; Wire Fraud; and Wiretapping. Mr. Roselle received his undergraduate degree from Benedictine College in 1978 and his law degree from Washington University in He is a member of the Larimer County Bar Association, the Colorado Criminal Defense Bar Association, the National Association of Criminal Defense Lawyers, the National Criminal Defense College, the National College for DUI Defense, and the Larimer County Criminal Defense Bar Association. He is admitted to practice in Colorado and is a Nationally Certified Breath Testing Expert. Robert M. Smith, Esq. Robert M. Smith., Esq., is an attorney and mediator in Windsor with an emphasis on high-conflict family law cases. He regularly serves as a child and family investigator and guardian ad litem throughout Northern Colorado and Denver.

13 COMPOSITION OF THE NINETEENTH JUDICIAL DISTRICT BENCH/BAR COMMITTEE AND CURRENT MEMBERS The Weld County Bench/Bar Committee shall be composed of the following: 1. The Chief Judge of the Weld County District Court or Designee; 2. The Chief Judge of the Weld County Court or designee; 3. A Municipal Court Judge or Designee; 4. The Weld County Bar Association President; 5. Three At Large Members of the Weld County Bar Association; and 6. The 19 th Judicial District Administrator or Designee. The Current members of the Weld County Bench/ Bar Committee are: 1. James F. Hartmann, Chief Judge of the Weld County District Court; 2. Michele Meyer, County Court Judge designated by the Chief Judge of the Weld County Court; 3. Michael D. Stewart, Evans Municipal Court; 4. William L. Crosier, Esq., at- large member 5. Todd Taylor, Weld County District Court, at- large member 6. Jennifer Lynn Peters, Esq., Weld County Bar Association President and at large member; 7. Cathi Walker, 19 th Judicial District Clerk s Office, designee of the District Administrator; and 8. Vacant at large member.

14 Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE Presents STATE OF THE COURTS December 10, 2010 Presented by: Honorable James F. Hartmann, Chief Judge, 19 th Judicial District

15 Anticipated Courtroom Assignments as of January 2011 COURT DIVISION NAME LOCATION TYPES OF CASES HEARD District Court 1 Hartmann Court House 20 % Civil; 80% Water; 100% Probate; 25% County, Small Claims & Muni. Ct Appeals; 33 1/3% petitions to seal arrest and criminal records. District Court 3 Strobel Court House 20 % Civil; 33 1/3% Domestic Relations; 25% County, Small Claims & Muni Ct Appeals; 50% DR, JV Custody & Child Support Magistrate appeals; 100% minor name changes. District Court 4 Maus Court House 40 % Civil; 25% County, Small Claims & Muni Ct. Appeals; 100% Distraint Warrants and Rule 120s; 33 1/3% petitions to seal arrest and criminal records.. District Court 5 Tuttle Court House 20% Civil; 20% water as alternate water judge and acting as a water referee; 100% Mental Health; D & N and Domestic Relations Hearings; 25% Small Claims & Muni. Ct Appeals; 33 1/3% petitions to seal arrest and criminal records. County Court 6 New Judge Court House 33.3% Non-DV TPO/PPOs 20% Civil; 33.3% Non-DV Misdemeanors; 33.3% Misdemeanor Traffic County Court 7 Lococo Court House 33 1/3 % Domestic Relations; 50 % Dependency & Neglect; D & N Adoptions; 100 % Non CSEU Paternity; Family Treatment Court. County Court 8 Unfug Court House 33.3% Non-DV TPO/PPOs; 20% Civil; 33.3% Non-DV Misdemeanors; 33.3% Misdemeanor Traffic District Court 9 Kopcow Court House 33 1/3% Domestic Relations; 50% Dependency & Neglect; All Adoptions, except Div 7 D&N Adoptions; 100% D & N Magistrate Appeals; 50% DR, JV Custody & Child Support Magistrate Appeals District Court 11 Hoskins Plaza West 22% Criminal & Extraditions and Drug Court District Court 12 Kerns Plaza West 26% Criminal & Extraditions;

16 Magistrate 14 Koppes Conway Plaza West 100% Juvenile Delinquency, less JD cases transferred to Div. 4; 100% Truancy; (less ½ Day County Court Pretrials) District Court 15 Quammen Plaza West 26% Criminal & Extraditions; 100% JD Appeals, Jury Trials, Objections, conflicts & other JD cases transferred from Div.14 District Court 16 Taylor Plaza West 26% Criminal & Extraditions; County Court 17 Meyer Centennial Dedicated DV Court; 100% FED Trials; 20% Civil; 100% DV TPO/PPOs; 100% DV Misdemeanors County Court A County Judges Centennial First Appearance Center, three County Court Judges rotate in this division one week every three weeks County Court B Nichols Centennial 33.3% Non-DV TPO/PPOs; 20% Civil; 33.3% Non-DV Misdemeanors; 33.3% Misdemeanor Traffic Magistrate C Gonzales Centennial 100% County Court FED s, First Appearance Center, final hearings on traffic infractions, 20% civil, 100% civil contempt Magistrate D Davis Centennial 100% Child Support & CSEU Paternity DV Domestic Violence; FED - Forcible Entry and Detainer; JV Juvenile Non-Criminal; PPO - Permanent Protection Orders; TPO - Temporary Protection Orders. In addition to judges and magistrates, there are fulltime equivalent positions designated as support personnel. These positions include court judicial assistants, court clerks, law clerks, court reporters, interpreters, collections investigators, probation officers and support staff. There are FTE assigned to the courts in addition to FTE in probation.

17 Just Business: Breaking Down the World of Business Immigration 19 th Judicial District Bench-Bar Committee & The Weld County Bar Association Inc. 7 th Annual Nuts & Bolts CLE December 10, 2010 David A. Harston Elkind Alterman Harston PC

18 What We ll Cover NIV: Nonimmigrant (Temporary) Visas for Work Including E, H, L, O, P, Q, R, and TN IV: Immigrant (Permanent) Visas through Employment Including Labor Certification, National Interest Waivers, and EB-1 Workers Qualifying for Relief through Employment When a Business Case Becomes an Asylum Case & Vice Versa

19 E-1 Treaty Traders and E-2 Treaty Investor Must be national of treaty country E-1: Substantial Int l trade E-2: Substantial Investment Investors, executives, supervisors, or essential personnel Admitted for two-years + two-year extensions Dependents: spouse and/or minor children E-3 for Australians (see H-1Bs)

20 H-1B Specialty Occupations Jobs requiring at least a bachelor s degree in a specific specialty Individual holds degree or equivalent in that specialty Wage requirements Capped at 65,000/year Three-year period + three-year extension H-4: Dependents (spouse and/or minor children) H-1B1 for Chile/Singapore

21 H-2A and H-2B Nonimmigrant Visas H-2A Agricultural Workers H-2B for Seasonal, One-Time Occurrence, Peak load Need, or Intermittent Need Requires labor certification Wage requirements Housing for H-2As Cap of 66,000/year for H-2Bs

22 L-1 Intra-company Transfers Qualifying Corporate Relationship One-year Employment Abroad Required L-1A: Executives or Managers L-1B: Specialized Knowledge L-1As (7 years); L-1Bs (5 years) Special Rules for New Offices L-2s for spouses and/or minor children

23 O-1 Extraordinary Ability O-1A: Sustained national or int l acclaim in the sciences, arts, education, business, or athletics O-1B: Film & Television Arts = distinction Major prize OR three of suggested criteria Typically granted for 3 years, extensions granted in one-year increments

24 P/Q/R Nonimmigrants P-1A: Internationally recognized Athletes P-1B: Internationally recognized Group Entertainers Q: Int l Cultural Exchange Programs R-1: Ministers & Religious Workers

25 Trade NAFTA (TN) Nonimmigrants Canadians and Mexicans List of occupations with required credentials in appendix to the treaty E.g. Engineers, Accountants, most scientists Admitted up three years Direct border application Renewable indefinitely (sort of)

26 NIV Hypothetical #1 Canadian Biochemist with PhD from MIT Multiple articles in leading journals; work cited in other leading journals Has worked in Canada as researcher for Canadian biotech firm for two years in management role Coming to work in research and management role in U.S. subsidiary

27 NIV Hypothetical #2 Mexican national with 4 years of experience cooking authentic Mexican cuisine No prior immigration violations in U.S. Offer of FT/regular position from U.S. employer paying prevailing wages for the cook position U.S. employer has advertised in good faith for six months and cannot find qualified, willing, and available workers

28 Employment-Based Preferences First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employmentbased preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, & Other Workers: 28.6% of the worldwide level, plus any numbers not required by first & second preferences, not more than 10,000 of which to "Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or highunemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L Total of 140,000 EB immigrants; no more than 7% per country

29 December 2010 USDOS Visa Bulletin

30 Permanent Labor Certification Used for most EB-2 and EB-3 cases Filed by U.S. employers on Form ETA 9089 with USDOL U.S. employer must test the labor market to determine if there are any qualified, willing, and able U.S. workers Wage requirements/ability to pay Must document recruitment efforts Special rules for college/university teachers

31 Exceptional Ability and Schedule A No individual certification required by USDOL Schedule A Blanket determinations: Physical Therapists and Nurses Persons of Exceptional Ability in sciences or arts and university teachers Widespread acclaim & Int l recognition USCIS and USDOL criteria

32 National Interest Waivers Only available to EB-2 workers Area of substantial intrinsic merit Benefit will be national in scope National interest adversely affected if labor certification were required Does not require U.S. employer See Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm. 1998).

33 EB-1: Extraordinary Ability Sciences, arts, education, business, or athletics Sustained or Int l acclaim Major Int l Award or three from list of 10 criteria including published materials, original work of major significance, judge of the work of others No U.S. employer required

34 EB-1: Outstanding Professors & Researchers Recognized Internationally + 3 years teaching or research in field Tenure/tenure track position or comparable position at university to conduct research or comparable position at private employer to conduct research (must show documented accomplishments) At least two criteria from list of 6 including prizes, memberships, published materials

35 EB-1: Multinational Executives & Managers Qualifying Corporate Relationship One-year Employment Abroad as executive or manager required Job offer by U.S. organization No first line supervisors unless employees supervised are professional workers

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