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YOUR GUIDE T O L AW, A CCOUN T ING & F IN A N CE
Jaret L. Davis: The Community Leader Also: • Taxpayers Ought to Avoid Over- and Under-Withholding of Tax • “First Cannabis Bank of Florida?” • What Lies Ahead for the EB-5 Foreign Investor Program? • Elder Americans Need Protection From Abuse • Review Your Estate Plans in Light of Tax Act • Preparation Is Crucial for Obtaining Business Visas • Effective Training Can Help Prevent Harassment and Discrimination
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Addressing the Public Health Problem of Mental Illness Mental illness is one of our nation’s most serious public health problems. It is often invisible and usually ignored in our society. Think of a child who threatens his parents, a homeless person who hears voices or an elderly person who can no longer live on her own. Today, an estimated 40 million Americans suffer from depression, anxiety, schizophrenia, bipolar disorders or other types of mental illness that all too often lead to suicide, divorce, unemployment or physical or emotional abuse. Those individual deaths and personal traumas and family tragedies rarely make the headlines, unlike the tragedy of the Marjorie Stoneman Douglas school shooting in Parkland. In that case, a 19-year-old who had repeatedly demonstrated violent thoughts and behaviors purchased a semiautomatic AR-15 and ten rifles with deadly consequences. Under Florida’s Baker Act, individuals can be hospitalized for up to three days for
examination if authorities believe they pose a threat to others or themselves. This cooling-off period can allow a person with mental illness to receive crisis intervention treatment, preventing possible injury or loss of life. However, mental illness is frequently a chronic disease like diabetes or hypertension requiring long-term treatment, such as counseling and medication. Patients need to be seen by a psychiatrist, psychologist or other mental health professionals on an ongoing basis. Because of the costs associated with mental health care, many private insurers limit the benefits they provide. On the positive side, many larger companies now offer employee assistance programs (EAPs) that include at least some coverage for mental health care. Other obstacles to addressing this public health problem include a shortage of trained mental health professionals – especially those with the skills and cultural sensitivity neces-
sary to treat children, adults and families in our highly diverse society. Another problem is the difficulty in assessing patient outcomes in our data-driven world. While a clinical trial of a new drug can produce clear results, it is much more difficult to evaluate the effectiveness of mental health treatment on an individual patient – especially in dual-diagnosis patients who are also dealing with alcohol or substance abuse issues. Finally, the mentally ill are often stigmatized in our society. Family members or employers may not understand why a person who appears to be successful might be in serious medical trouble, like comedian Robin Williams who killed himself after losing the battle with his inner demons. Until the 1960s, patients with serious, intractable mental illness were often hospitalized for long-term care. Since then, most of these state facilities have closed, as the responsibility for care was shifted to community agencies,
RICHARD WESTLUND which typically lack the necessary resources. While there is no simple solution to the challenge of mental illness, we cannot afford to continue looking away from this public health issue. These children, teenagers and adults are among the most vulnerable members of our society. They deserve our understanding and support, along with the best possible care and treatment. Anything less is simply unacceptable.
Richard Westlund Editor
PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com GUEST CONTRIBUTORS ROGER BERNSTEIN STANLEY I. FOODMAN ELLEN S. MORRIS BARRY NELSON GINA M. POLO ANDREW RODMAN COLIN ROOPNARINE SOUTH FLORIDA LEGAL GUIDE - BM Volume 2, Number 3, 2018 This is an independent supplement by South Florida Legal Guide Mailing address P.O. Box 630428, Miami, FL 33163. All rights reserved. All titles registered and may not be used without permission. Reproduction in whole or in part of any text, photograph or illustration without written permission of the publisher is strictly prohibited. The South Florida Legal Guide makes no guarantee regarding the accuracy of information presented, results reported, or safety of products or activities described herein. The publisher notifies readers that the hiring of a professional is an important decision that should not be based solely on advertisements. Before you decide, ask the professional to send you free written information about qualifications and experience. Contact: info@sflegalguide.com or call: (786) 879-7638 • www.sflegalguide.com
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[TAX COMPLIANCE ]
Taxpayers Ought to Avoid Over- and Under-Withholding of Tax BY STANLEY I. FOODMAN
The IRS released Notice 1036 on January 11 to update the income-tax withholding tables for 2018, after passage of the tax reform legislation under the Tax Cuts and Jobs Act (the Act). The new withholding tables are needed to reflect the changes in tax rates and tax brackets, increased standard deduction and repeal of personal exemptions that were included in the new tax reform law. Withholding tables tell employers, as well as payroll service providers, how much tax to withhold from employee paychecks, given each employee’s wages, marital status, and the
number of withholding allowances they claim. Employees provide to their employers with IRS Form W-4 to determine the amount of federal income tax to withhold from their paychecks. Notice 1036 advised employers to begin using the 2018 withholding tables no later than February 15, 2018 and that employers should continue to use the 2017 withholding tables until implementing the 2018 withholding tables. On January 29. the IRS issued Notice 2018-14 where it stated that the new 2018 Form W-4 may not be released until AFTER February 15, 2018.
The IRS continues to work on revising Form W-4 to reflect the changes made by the Act, such as changes in available itemized deductions, increases in the child tax credit, the new dependent credit, and the repeal of dependent exemptions. The Act does not mandate that employees furnish new Forms W-4 for 2018 and expressly permits the IRS to administer income tax withholding for 2018 without regard to the changes in the withholding rules and the suspension of personal exemptions. Notice 2018-14 also: • extends the use of the
existing 2017 Form W-4, Employee’s Withholding Allowance Certificate, to claim exemption from withholding for 2018 until the IRS can issue a new 2018 Form W-4 • temporarily suspends the rule that employees must notify their employers of changes in status that affect their withholding within 10 days • provides the new rate of optional withholding on supplemental wages • provides that withholding on periodic payments (such as for annuities) when no withholding certificate is in effect is based on treating the payee
as married and claiming three withholding allowances Until a new Form W-4 is issued, employees and employers should continue to use the 2017 Form W-4. Taxpayers ought to check in order to ensure that they are not having too much or too little tax taken out of their pay. Those that need to pay particular attention are those taxpayers who in the past itemized their deductions, couples with multiple jobs or individuals with more than one job a year or those with more than one income in their household. Don’t be a victim of your own making. Consult
STANLEY I. FOODMAN your tax specialist to ensure that you are not under-withheld or over-withheld. Foodman CPAs and Advisors, 1201 Brickell Avenue, Suite 610, Miami, FL 33131, (305) 365-1111, www.foodmanpa.com, info@foodmanpa.com.
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JARET L. DAVIS : Attorney Jaret L. Davis is committed to turning South Florida into one of the nation’s leading technology centers. “We live in one of the most dynamic cities in the world, but the challenge is how to keep moving forward,” said Davis, who is co-managing shareholder of Greenberg Traurig’s Miami office. “In the past few years, we have made great strides in building our entrepreneurial ecosystem. Now, we need to help those startups begin to grow, so they can play a bigger role in the global economy.” With a wide-ranging corporate law practice that includes a focus on technology companies in the areas of information technology (IT), life sciences and biotech, Davis, 43, was co-founder and currently serves as general counsel of the eMerge Americas global technology conference, now in its fifth year. “With great thought leaders as speakers and thousands of attendees from throughout the hemisphere, eMerge Americas continues to play a key role in raising Miami’s profile in the global technology sector,” he said. More recently, Davis served as 2016-17 chair of the Miami-Dade Beacon Council, the county’s economic development partnership, helping to launch the Connect and Grow initiative. “We want to build connections
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between entrepreneurial startups in all fields and established companies,” he said. “That’s a vital step in helping new companies scale up to reach larger markets and create more jobs. It’s also a winning combination for larger companies, because they get ready access to innovative ideas.” Davis cites Watsco Ventures, the corporate innovation division of Miami-based Watsco, the world’s largest distributor of air conditioning and heating products and a Davis client, as a good example of a company that has been a leader in the ideas behind the Connect and Grow initiative. Through investments and an accelerator program, Watsco is supporting the growth of early-stage companies in the B2B and home comfort industries. “We are also seeing some significant wins with our home-grown technology companies like Magic Leap and Cyxtera,” Davis added. “But our financial and business community needs to step up to the plate and keep this trend going.”
A SOUTH FLORIDA NATIVE Born in Miami Beach, Davis grew up in Miami. His father was a businessman, his uncle was an attorney in New Orleans and his step-grandfather was Clarence Patterson, former city manager of North
Miami and Opa-locka. “They helped instill my personal values, including justice and community involvement,” he said. “My parents raised me to understand the importance of giving back to my community and helping those who were less fortunate or unable to fight for themselves.” In high school, Davis became interested in technology, analytics and finance, and went on to earn a bachelor’s degree in economics with minors in computer science and finance from the University of Miami. During college, he spent four years doing network diagnostics and manning the IT help desk for the University of Miami School of Business before enrolling at UM law school in 1996. “My ‘aha’ moment came when I fully realized the power of the law in analyzing and solving challenging problems,” he said. In his first summer in law school, Davis clerked for the Division of Enforcement at the U.S. Securities and Exchange Commission (SEC), giving him exposure to the field of securities litigation and enforcement. The following year he became a summer associate at Greenberg Traurig, with a focus on the transactional side. After earning his law degree in 1999, he joined Greenberg and has been
Photo: @Candace West.com
The Community Leader
JARET L. DAVIS with the firm ever since. “One thing I love about law is that you can’t practice in a vacuum,” he said. “I enjoy meeting new people, listening to our clients and finding ways to resolve their issues.”
A STELLAR LEGAL CAREER Throughout his legal career, Davis has been a problem-solver, focusing on corporate and securities matters, including cross-border mergers and acquisitions, capital markets transactions, and large financings. Davis was the lead attorney on the Greenberg Traurig team that represented Medina Capital in its $3 billion acquisition of a portfolio of 57 data centers and suite of cybersecurity and data analytics companies. Most recently this month Davis and his team represented Exact-
ech, Inc., a NASDAQ company that is a leading developer and producer of orthopedic implant devices, in its $737 million merger with global private equity fund TPG Capital. He also previously led the team representing Terremark Worldwide, Inc., a provider of IT infrastructure, in connection with its $2 billion acquisition by Verizon Communications, Inc. In 2010, Davis took over co-leadership of the firm’s Miami office, and now oversees approximately 170 attorneys and 200 business staff. “My leadership style is one of empowerment,” Davis said. “I’m very big on empowering and bringing resources to our associates, partners and staff. I enjoy seeing them develop their skills and grow in their careers.” Davis has also received
a number of awards in his career from professional organizations and publications, including the JM Family Enterprises’ 2016 African-American Achievers Award. “I have a very busy calendar, but my legal and community activities tend to relate to each other,” he said. “There are a lot of connections in common and that makes things a little easier to juggle.”
LEADERSHIP IN THE COMMUNITY Along with his professional commitments, Davis has been a community leader throughout his career. He has served on the boards of City Year, theJ American Diabetes Association, Friends of Little River, and the Miami Coalition for Christians and
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FLORIDA’S CANNABIS LAW – “First Cannabis Bank of Florida?” BY COLIN M. ROOPNARINE
Since a prior article on “pot banking,” there have been some interesting recent developments. The most significant has been in Colorado. “Fourth Corner Credit Union” was given conditional approval by the Federal Reserve Bank (FRB) of Kansas City to serve businesses that support “marijuana focused and licensed businesses.” This includes accountants, landlords, vendors and arguably other businesses that contract with the marijuana companies. Please note, however, lawyers and law firms are specifically excluded. In addition, for the credit union to become fully operational, it must obtain depository insurance from the National Credit Union Administration (which is embroiled in a suit with Fourth Corner for a prior denial) or a private insurer. For those who have been following “pot banking” since the matter arose, and brought to light by Colorado’s entrance into the recreational use arena, this was the same credit union that sued the Federal Reserve Bank three years ago for its refusal to approve the credit union to operate. The distinction here is the limitation on which businesses may maintain an account, which before was focused on the marijuana businesses themselves and not
• CONTINUED FROM PREVIOUS PAGE Jews, and is Past President of the Law Alumni Association for the University of Miami School of Law. “You can’t be an effective leader if you treat every situation in the same way,”
the support industry. Clearly the FRB is taking a very cautious approach, especially in light of U. S. Attorney General Jeff Sessions’ January 4, 2018, memorandum. The FRB of Kansas City stated in its conditional approval letter that it “does not express the policy views of the Fed, nor does it contain any supervisory, regulatory or enforcement guidance or precedent.” While this is not a total victory for marijuana producers, it is nonetheless a victory, because certain financial institutions were loathe to accept accounts from businesses that supported the marijuana industry. It seems one cannot discuss marijuana in Colorado without addressing marijuana in California. As with Colorado, pot banking efforts in California face the same hurdle of obtaining approval from the FRB (i.e. obtain a master account with the FRB) and obtaining backing by the Federal Deposit Insurance Corp. (FDIC). But whereas the Colorado model involves a single financial institution within the state, California’s model envisions a State of California bank that is OF the state. As many may be aware, one of the biggest problems with the marijuana industry has been the large accumulation of cash.
Davis said. “You have to understand the organization, its mission and its people. You have to be sensitive to the nuances and take a different approach for each leadership role.” Davis has also been active in the healthcare sector, and
Many states allow these businesses to pay taxes, fees, licensing issues, etc., with cash. In California, the cash is deposited into accounts owned by the state but with various state banks. California is proposing a fully state-run bank that would accept these cash deposits using local banks as conduits to deposit the money, while keeping the funds separate and apart from the institution where they are deposited. The cash would then be transported to a branch of the state-run bank and then deposited in accounts already held by the state. The accounts into which the money is deposited would have only the State of California as its account holder and not a marijuana-related business participant. Each business, upon being licensed would have an account automatically opened in the staterun bank, which would also then permit employees of the business and support business, such as accountants, landlords AND lawyers to also open accounts. Funds can then be transferred from the state-run bank and into an account holder’s FDIC-insured bank account. An argument can be made that this would be an attractive mechanism for state (and yes, federal)
recently became chairman of Nicklaus Children’s Hospital (formerly Miami Children’s Hospital), which has been at the forefront of utilizing digital health solutions. “This is one of the leading pediatric hospitals in the world, which is also
banking regulators, as the entire state’s marijuana-based economy would be enclosed in one institution, leading to efficient examinations and complete transparency and tracking of all legal marijuana money. As for the FDIC issue, California as the world’s sixth largest economy could afford to propose a self-insured model. Could Florida follow suit? It would not be inconceivable to see Florida explore such a model. Bearing in mind that many of the issues surrounding the medical marijuana industry concern the nature of a cash-only business fraught with fears of money laundering, then, “yes,” not only is it conceivable, but it should be thoroughly explored by the state. What better way could there be for the state to track cash, correlate the cash to particular licensees, observe any anomalies with business accounts on a weekly and monthly basis, and yet still provide the transparency and maintenance of books and records that both state and federal regulators would require for examination purposes? This would provide the ultimate satisfaction of anti-money laundering initiatives, “know your customer,” the Bank Secrecy Act and other safeguards implemented
an incubator for digital health solutions,” he said. “This is another successful example of how existing organizations can help startups scale up their products and services.” Looking ahead, Davis would like to see stronger
COLIN ROOPNARINE by banking regulators. Support industries such as accountants and lawyers and landlords would have a far simpler mechanism to separate their marijuana revenue from mainstream revenue. The drawback to this model? It would be the concession that marijuana has become a mainstream medical alternative and possibly pave the way for future recreational endeavors in Florida. And as for the FDIC matter, Florida’s economy is currently hovering around the number fifteen or sixteen mark in the world, which is not too bad if it opts to go the route of self- insurance. Colin M. Roopnarine is a partner on Berger Singerman’s Government and Regulatory Team who focuses his practice on administrative law. Roopnarine can be reached at croopnarine@bergersingerman.com, www.bergersingerman.com
economic development connections and other business activities working across South Florida’s county lines, such as the recent regional proposal for Amazon’s HQ2. “To the outside world, Miami-Dade, Broward and Palm Beach
are one major megalopolis – one of the most powerful in the country,” he said. “We need to work together to capitalize on our location, our multicultural workforce, and the many other business advantages and assets we can offer as a region.”
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Review Your Estate Plans in Light of Tax Act BY BARRY NELSON
As of January 1, 2018, the Tax Cuts and Jobs Act (the 2017 Tax Act) doubled the amount of property that a person can gift or pass upon death without incurring estate, gift, or generation-skipping transfer taxes. The act doubled the amount that would be free of these transfer taxes (the basic exclusion amount) to $11.2 million if single and $22.4 million if married (reduced by prior taxable gifts). That number might change slightly this year, depending on the nation’s inflation rate. These higher amounts will be in force until December 31, 2025, at which time the 2011 basic exclusion amount of $5 million (increased for inflation) will return. According to the 2016 Internal Revenue Service Data Book, only 3,631 people filed estate tax returns showing estates in excess of $10 million for the year 2015. Therefore, the 2018 basic exclusion amount likely means that most individuals will be able to avoid estate taxes. However, a change in the Presidency and Congress could result in a scaledback basic exclusion amount well before 2026. What are the tax consequences if the basic exclusion amount is reduced in the future and a person used the entire basic exclusion amount in 2018? For example, could that person
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be forced to pay a gift tax if the basic exclusion amount is reduced or can the donor’s estate taxes be increased to take such gifts into account? Most believe such an approach would be unworkable and unfair, but not impossible. In any case, the steps that should be considered now depend on one’s net worth.
ESTATES OF LESS THAN $3.5 MILLION (SINGLE) OR $7 MILLION (IF MARRIED) Those with a net worth of $3.5 million or less (if single) or $7 million or less (if married) (nontaxable estates) can feel reasonably safe that even if a future legislation reduces the basic exclusion amount, they will likely avoid the estate tax as long as they do not experience significant appreciation in their net worth. Those with nontaxable estates should review their existing estate planning documents to make sure that they do not contain formula provisions that could create an undesir-
able and unanticipated distribution. For example, some estate plans provide a gift to children or grandchildren of the maximum amount that can pass free of estate taxes. While such a provision may have been appropriate in the past, it could be inappropriate in 2018 when the basic exclusion amount is $11.2 million. The formula gift could result in the children or grandchildren receiving the first $11.2 million and the surviving spouse receiving nothing.
ESTATES OF MORE THAN $3.5 MILLION (SINGLE) $7 MILLION (MARRIED) BUT LESS THAN $30 MILLION Those with estates of $3.5 million to $30 million (intermediate estates), whether single or married, must determine if they feel comfortable making large gifts now without retaining any rights to receive income or principal from those gifts. Large lifetime gifts may be difficult for those who have intermediate estates
when the donor forfeits the post-gift income and principal. An option, if married, is to make transfers from one spouse to a trust for the other spouse (Spousal Limited Access Trusts or SLATs) in order to significantly reduce potential transfer taxes in the future. For example, consider Marty and Teri who are married and have a combined net worth of $22 million. One option would be for Marty to create a SLAT with $11 million that can provide Teri with all of the SLAT income annually and any additional amount determined by the trustee. Upon the death of Teri, the SLAT assets can be distributed to their children. To replace the assets that would no longer be available to Marty should Teri predecease him, Teri can use some of the distributions she receives from the SLAT to purchase a life insurance policy where the death benefit will be paid to a trust for Marty. This plan provides Teri with a large trust that is protected from creditors
during her lifetime. In addition, Marty and Teri's children can receive large distributions after Teri’s death (either outright or in trust) without having to pay estate taxes. If that plan is appealing, then Teri can consider creating a similar (but not identical) trust for Marty with her assets.
BARRY NELSON
ESTATES OF $30 MILLION AND MORE
beneficiaries.
Individuals with estates of $30 million and more (larger estates) may be comfortable making gifts of $11.2 million (if single) to $22.4 million (if married) – reduced by prior taxable gifts – without concern that their remaining assets will be sufficient to maintain their accustomed manner of living. The benefits of making such 2018 gifts now include locking in the basic exclusion amount, should it be reduced in the future, and freezing asset values of the gifts to so there are no transfer taxes on future appreciation of those gifted assets to their intended
OTHER ISSUES
What are the tax consequences if the basic exclusion amount is reduced in the future and a person used the entire basic exclusion amount in 2018? For example, could that person be forced to pay a gift tax if the basic exclusion amount is reduced or can the donor’s estate taxes be increased to take such gifts into account? Most believe such an approach would be unworkable and unfair, but not impossible.
There are many other issues and questions that must be evaluated. Assets held till death benefit from a “step up” in income tax basis. As a result it can be costly to gift certain appreciated assets before death. Accordingly before any gifts are made with the increased basic exclusion amount, estate tax, asset protection and income tax benefits and drawbacks need consideration. Because existing documents may contain formula provisions that are no longer viable or effective, and in light of the opportunity to take advantage of the ability to make additional tax-free gifts, now may be a good time to meet with your financial, legal and accounting advisors. Barry Nelson focuses his practice on trusts and estates as managing partner at Nelson & Nelson, P.A. in North Miami Beach.
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Elder Americans Need Protection From Abuse BY ELLEN S. MORRIS
Many elder Americans need protection from financial, emotional and even physical abuse. All too often, a family member, caretaker, neighbor or scam artist tries to take advantage of an older person with financial assets. In other cases, siblings will argue about what’s best for an aging parent in terms of ongoing care at home or in a residential facility. For many families, advance planning can provide a solid foundation for addressing these types of concerns. Along with drawing up a will, an aging parent can prepare advance directives regarding
future healthcare decisions, along with a power of attorney and a revocable trust that allows a family member or other designee to make decisions in the event of cognitive or physical disability. At the same time, family members can discuss financial issues, such as guarding against financial fraud and how best to cover the cost of ongoing medical or residential services. For example, an elder might be cautioned not to send money to a caller claiming to represent a child or grandchild in an emergency, or to change a will or estate in favor of a “friendly” neighbor
taking advantage of an elder’s diminished mental capacity. Fortunately, Florida has some of the nation’s better statutes in terms of guardianship and protecting the elderly against exploitation, making it easier to prosecute exploitation cases and imposing harsher penalties. Another bill is now being considered in the Legislature that could allow a family or household member to request a temporary freeze on an elder’s financial accounts if exploitation is suspected. Along with discussing financial issues, family members should also maintain
open lines of communication regarding the appropriate care for an elderly parent or other relative. That’s especially important if siblings disagree about taking extraordinary measures when a mother or father is nearing the end of life. Having a parent’s advance directives in place can go a long way to resolving these highly emotional issues. Another form of advance planning involves making a decision about long-term care insurance or asset protection to qualify for government benefits. Since Americans are living longer, many elders are likely to need expensive
residential or skilled nursing care. However, the premiums for long term care insurance policies are rising, so the cost of coverage must also be taken into account. And the pros and cons of advance planning for asset protection should be fully discussed. Today, there are more options in terms of longterm care policies, including benefits that would go to the heirs after an elder’s death, and there are other ways to protect an elder’s estate, while providing for ongoing care. Regardless of the situation, discussing these issues in advance is essential for making
ELLEN S. MORRIS sound decisions regarding an elder’s care and finances. Ellen S. Morris is the founder of Elder Law Associates in Boca Raton.
What Lies Ahead for the EB-5 Foreign Investor Program? BY ROGER BERNSTEIN
By all accounts, the EB-5 program, which provides foreign investors with lawful permanent residency and a path to US citizenship in exchange for qualifying investments in job-creating U.S. enterprises, has had a positive impact on the U.S economy. From FY 2008-2015, EB-5 attracted over $13 billion in foreign direct investment, supporting more than 30,000 jobs per year, according to IIUSA, the EB-5 industry trade association There are currently over 22,000 EB-5 investor applications pending with the federal government, representing an additional $11 billion in capital investment
ready to be injected into the U.S. economy. While these achievements are impressive, recently, the program has experienced some growing pains. Soaring application receipts have outpaced the ability of the U.S. Citizenship and Immigration Services (USCIS) to timely adjudicate petitions resulting in longer wait times. There are only 10,000 visas allocated annually for this visa category, and considering the program’s popularity, this supply has proven to be clearly deficient. Chinese investment in EB-5 projects, which previously comprised more than 80 percent of the market, has cooled
due to substantial backlogs and prominent project failures. Consequently, the market has experienced a shift to countries such as India and Brazil. There is also a fierce worldwide competition to attract foreign investment via similarly structured visa programs. A consensus within the industry was reached on how to improve the program and the need to make it permanent. There, in fact, have been several legislative attempts to reform the program. These initiatives include allocating more visas, providing greater oversight and transparency from the regional centers which sponsor projects, increasing
the investment amount, and creating visa set-asides to incentivize investment into rural and urban distressed projects. Thus far, all legislative efforts have failed, ensnared in the larger immigration debate. These legislative failures have resulted in a series of shortterm program extensions, casting a shadow of uncertainty over the regional center program, which is currently set to expire on March 23, 2018. It is possible that in lieu of a legislative fix, USCIS will implement onerous regulations, which would not be healthy for the long-term. The future of the regional center program therefore re-
mains unclear. This, of course, has not stopped developers from continuing to use the program to raise capital nor has it prevented regional centers and offshore agents from aggressively marketing their projects. Irrespective of the looming program changes, there still remains a healthy investment appetite for EB-5. Hopefully, a solution will be reached that will ensure the future of the EB-5 program – a powerful job creation tool and economic engine for direct foreign investment into the United States. Roger Bernstein is a partner at Saul Ewing Arnstein & Lehr LLP and Vice –Chair of the
ROGER BERNSTEIN Global Immigration and Foreign Investment Practice Group He also is a principal of EB-5 for Florida Regional Center, LLC, a federal USCIS designated regional center located in South Florida.
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Preparation Is Crucial for Obtaining Business Visas BY GINA M. POLO
If your business is considering bringing a foreign professional worker to the United States, advance planning and continual monitoring is crucial. Today’s government policies are increasingly restrictive, and business owners need to understand both the laws themselves and how different agencies will interpret them. The H-1B visa allows U.S. companies to hire skilled foreign workers for specialized occupations. Applications must be filed no sooner than April 1 for authorization to begin working October 1, the beginning of the fiscal year. After a sometimes
lengthy review period, U.S. Citizenship and Immigration Services (USCIS) will select up to 85,000 petitions for workers with Bachelor’s and Master’s degrees for processing. For the most recent fiscal year, nearly 200,000 petitions were filed, so the acceptance rate was just 42 percent. These H-1B workers face an extensive questioning and review process from several agencies before and after being approved to work in the U.S. Receiving approval by USCIS to come to the U.S. with an H-1B visa is by no means the end of the process. If the worker applies
for an H-1B visa outside the U.S., he or she must complete a visa application, present him/herself for interview at a consular office, and obtain an H-1B visa before returning to the U.S. Immigration attorneys must anticipate the different agencies’ potential questions at every stage in the process. Applicants must be prepared to answer questions during the interview with U.S. consular officers, as well as those posed by Customs and Border Protection (CBP) officers at ports of entry. That may not be a major hurdle for workers with strong communication skills, but may be challenging for
those who are not prepared for these types of questions or are not as comfortable with explaining their skills and responsibilities. Even after a foreign worker has settled into the U.S. job, the government scrutiny may continue. Businesses need to continually maintain documentation throughout the time the worker is under the company’s employment. An employer will need to maintain up-to-date records on the individual’s duties, as well as the wages paid to an H-1B employee. A company’s staff must also know how to handle a visit from a USCIS represen-
tative, an on-site inspection. The person who signed the petition on behalf of the company, and the worker him/herself, will be interviewed by the inspector and asked to provide documentation regarding the position occupied by the H-1B worker. Skilled foreign workers contribute to the vitality of South Florida’s business community. To capitalize on that talent pool, U.S. employers should consult with an experienced immigration attorney for advice in addressing both the legal requirements and how the government is interpreting
GINA M. POLO and applying the law. Gina M. Polo is a shareholder with Buchanan Ingersoll & Rooney PC in Miami, focusing her practice on immigration matters.
Effective Training Can Help Prevent Harassment and Discrimination BY ANDREW RODMAN
Training is a vital component of an employer’s efforts to maintain a workplace free of harassment and discrimination. Without training, employees may not know the company’s stance on harassment and discrimination (hopefully, that the company will not tolerate it) and may not know how to report harassment or discrimination (particularly if they did not read the employee handbook). Here are six tips to help South Florida employers create a harassment and discrimination-free workplace: 1. Obtain executive buy-in. Prevention of harassment
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and discrimination starts with corporate culture, and establishing the proper culture starts at the top. Senior management must, by words and actions, demonstrate that equality is paramount and that harassing and discriminatory conduct will not be tolerated. Executives must lead by example, which means refraining from sexual (or otherwise inappropriate) banter, jokes, comments, and touching. 2. When feasible, conduct live, in-person training (where the presenter has the attendees’ attention) instead of computer or web-based
training (where employees may be listening with half an ear while simultaneously performing other tasks in the confines of their offices or cubicles). 3. Recognize that training is an ongoing process. You are not going to change an individual’s behavior in a thirty minute session, so it is not enough to offer one-time training during onboarding. Instead, conduct periodic training sessions to reinforce principles of inclusion and equal employment opportunity. 4. Train “bystanders” who witness harassment or
discrimination to intervene (“Hey, that joke was inappropriate”) when inappropriate conduct is observed. A bystander also can address the conduct privately with the perpetrator (“You’re aware that joke was inappropriate, right?”) or with the victim (“Are you ok with what John said?”). 5. Most training focuses on what employees can’t do (“don’t touch,” “don’t tell dirty jokes”). Spend time training supervisors on what they should do, such as praising colleagues’ work and recognizing contributions. Doing so helps create a posi-
tive work environment. 6. Promote equality through personnel actions. Look around you. Do you have women and minorities in management positions? Send the desired message through your actions and personnel decisions. Every company should strive to eliminate harassment and discrimination and create an environment in which all employees feel welcome. The means to achieve that goal will differ by organization. Consult with your employment attorney to discuss the best recipe for success in your organization.
ANDREW RODMAN Andrew Rodman is a shareholder and member of the Board of Directors at the law firm Stearns Weaver Miller. His practice is devoted to labor and employment law.