Sacramento Sacramento Attorney

The asylum law of the United States is built on the definition of the term “refugee” adopted by the international community in the Convention, where a refugee was defined as someone who, as a result of pre-1951 events “and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion,” was outside of his or her country of nationality and was “unable, or owing to such fear, unwilling to avail himself of the protection of that country.”

For an asylum seeker, the difference between freedom and persecution can depend on how they answer a question posed by an asylum officer.  It must be noted that seeking asylum is one of the most difficult tasks for an immigration attorney.  In order to receive asylum, applicants must establish that they have a well-founded fear of persecution should they be forced to return to their home county or country of last habitual residence. If the applicant has suffered past persecution, then the rebuttable presumption of a well-founded fear is raised. The government can show that factors such as country conditions have changed, so the applicant no longer has a reasonable fear of persecution. However, the burden is placed on the government to prove this issue.

An asylum seeker must be careful that the USCIS (United States Citizenship and Immigration Services) does not deem the case as frivolous because then the asylee will be permanently ineligible for any benefits under U.S. immigration law.  That means the asylee will never be given any U.S. visa or green card, even if they marry a U.S. citizen, or get a U.S. job offer.  It is very important that legal counsel is sought before an asylee takes the first step forward in this long journey.

If you have any questions or need guidance involving this issue, contact an experienced immigration attorney in Sacramento today.

Jesse Atwal, Attorney at Law

Almost everyone knows that there are immigration advantages to marrying a U.S. citizen. Permanent resident status, symbolized to many people by the so-called “green card” (which is actually pink) gives foreign nationals the right to live and work in the United States without time limitations. Although there are several other bases for obtaining “green cards” one of the most common method is through close family ties to a US citizen or marriage to a US citizen. One of the biggest mistakes that newlywed couples make is that they forget to remove the conditions on the alien spouse’s green card.

Because suspicions are so high regarding foreign nationals who marry U.S. citizens, they face extra hurdles in getting a green card through marriage to a U.S. citizen. If you have been married for less than two years when your application is approved, the card will be issued only conditionally. These conditional green cards last for two years. When that time is up, you must apply to USCIS to have the condition removed and your green card made permanent.

If however, your marriage has ended or your U.S. spouse simply refuses to cooperate, the removal of the condition can be more complicated. Under these circumstances you can still keep your green card if you can prove that the marriage was entered into in good faith or you were abused or subjected to extreme cruelty by your U.S. citizen or green card holder spouse. It is vital that you seek legal help if you are found in this situation because it is important that someone argues your case to the immigration authorities. You will be required to submit numerous documents to prove your case, which Mr. Atwal can help you prepare and submit to the USCIS officers.

If you or anyone you know has questions, or is experiencing legal difficulties with immigration, contact an experienced immigration attorney in Sacramento today.

Sean Gavin, Attorney at Law

As we all continue to face a downturn in the economy, employers and employees alike are looking for ways to save money.  For employees, this might entail bringing lunch to work or carpooling.  For employers, however, cost-cutting might involve taking unlawful actions against the workforce.  For example, as employers feel the pinch of reducing revenues, they might seek to enforce new workplace policies and procedures.  One of the more common policies is the so-called “Use it or Lose it” vacation policy.  If your employer has instituted this policy, you have valuable legal rights, and you should contact a Sacramento employment lawyer who handles wage and hour law to discuss your options.

California law does not require employers to provide vacation time.  If an employer does provide vacation pay as a benefit, however, it accrues as it is earned.  This is called “vesting.”   Once vacation vests, it cannot be forfeited for any reason, even upon termination, regardless of the reason for termination.  Even more importantly, California Labor Code §227.3 guarantees that, unless a collective bargaining agreement says otherwise, “whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served.” 

Keep in mind that employers do have the right to “manage” your vacation time use and accrual.  This means the employer may do any of the following: (1) cap your accrued vacation time to a certain number of hours; (2) control when you take your vacation time and how much you may take at any particular time; (3) pay you at the end of each year for accrued but unused vacation time; or (4) permit you to take vacation early as an advance.

What are your options if these rights have been violated?  First, you should contact a licensed employment law attorney who practices wage and hour law.  If you’ve been forced to forfeit your vacation time upon termination, you may also qualify for “waiting time penalties.”   California Labor Code §203 provides that “if an employer willfully fails to pay, without abatement or reduction, […] any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced.”  These penalties are capped at 30 days.  You must carefully complete your labor claim to preserve these valuable benefits.

You can also contact the Division of Labor Standards Enforcement (DLSE) of the California Department of Industrial Relations (DIR) to locate the Labor Commission office nearest to you.   

One of the most dynamic areas of law has been, and continues to be, what is known as ‘Wine Law.’  The multitude of legal issues associated with wine has given rise to various broad theaters of war that form the front line of a conflict between antiquated liquor laws, small wineries, large wineries, conglomerates, states that produce a lot of wine, states that produce little wine, wholesalers, distributors, mega-distributors, producers from premium viticulture regions, politicians, bureaucrats, lawyers, consumers, and many, many more.

With so many battlegrounds, it is hard keep track of all the fights and even harder to keep up with the outcomes.  New regulations are promulgated with rapid succession and lawsuits challenge their validity and mold their scope.  The singular constant: Evolution. Since piety triumphed and prohibition ruled the day, the laws of wine have steadily morphed.  It may be hard to imagine living in a time when wine was treated with such draconian haste, but lenses viewing the past should be adjusted with cultural relativism in mind.

What does any of this have to do with anything and where is this blog post going?  Well, my intention is to use this forum as a tool to keep open a channel of communication updating legal developments and advancing progressive movements.

A quality consumer-based issue snapshot is Free The Grapes! a national, grassroots coalition of consumers, wineries and retailers who seek to remove restrictions on wine direct shipping. Their goal is to augment, not replace, the three-tier system with limited, regulated wine shipments from wineries and retailers to consumers.

Contra to the consumer-based viewpoint is the Wine & Spirit Wholesalers of America.  To understand the W&SWA, you need only read the following quote: “The wholesaler is the critical link in the distribution chain, and without wholesalers, the entire system would break down. There is no doubt that the sustainability of this system is critical to everyone—suppliers, retailers and consumers,” said Wine & Spirits Wholesalers of America President and CEO Craig Wolf.

In December of 2008, the California Supreme Court decided an interesting dispute about utilizing information from loan applications to determine income and worth of the parties. In the decision the court found that one of the parties failed to cooperate and that the other party utilized information provided on that parties loan application for the purchase of a new residence. That party objected, saying that the number was inflated for purpose of the loan application. The court found that under the circumstances of failure to cooperate, that number was allowable and then ordered support accordingly.

In a different case, the court confirmed that under Evidence Code 662, the presumption of how title is held reflects the actual ownership interests in a property, except under strong circumstances. In that case the property was purchased and the wife did not put the husband’s name on the title. In the fight about title, the court held that, “in the absence of any showing to the contrary, the status declared by the instrument through which the parties acquired title is controlling.” Knego v. Grover (1962)

Property and other issues can become very pivotal in divorce and custody matters and the Law Office of Bowman and Associates is prepared to represent you in your dissolution or custody matters with an eye on the ever changing laws.

In the last few weeks lightning has struck twice in the area of employment law. Those two events affect the law regarding an employee’s duty to speak out about illegal discrimination and retaliation and about time limits to complain about equal pay discrimination. These two cases affect employment law in favor of the plaintiff, the complaining person.

The first important event occurred on January 26, 2009, in Crawford vs. Metropolitan Government of Nashville County, the United States Supreme Court held in a unanimous opinion written by Justice Souter, that the protection of Title VII’s anti-retaliation provision extends to an employee who speaks out about discrimination not on his or her own initative, but in answering questions during an employer’s internal investigation.

In this case, during an internal investigation into rumors of sexual harassment by a manager, the plaintiff reported that the same manager had sexually harassed her. The employer took no action against the accused harasser, but soon fired Crawford, who then sued. The court held that, “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initative but not one who reports the same discrimination in the same words when her boss asks her a question.”

The second recent important event took place on January 28, 2009, when Congress passed the “Lilly Ledbetter Fair Pay Act of 2009,” regarding pay discrimination and was signed into law by President Obama. The court passed this act because of the nature of the Supreme Court’s recent past decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007) In this court decision the court held that the time for filing a Title VII charge of employment discrimination begins when a discrete act occurs. The Congress overturned this notion by passing this act and now held that it is unlawful each time an employer writes a paycheck that gives some workers less than others, because of race, sex, disability, religion or national origin.

This act is critically important in that it gives aggrieved employees much more time to complain about illegal discrimination and then resets the clock each time that they are paid without a remedy to the discrimination. The act describes when an unlawful employment practice occurs and allows for recovery of back pay for up to two years preceding the filing of the charge. The act takes effect as if enacted on May 28, 2007 and applies to all claims of discrimination in compensation under title VII of the Civil 
Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans with 
Disabilities Act of 1990 and sections of the Rehabilitation Act of 1973.

In analyzing an employment case, it is important to consider new cases and legislation such as these two important events. Contact me at robert@bowmanandassoc.com to analyze your case.

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