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internationallawsection.org                                                    Saturday June 29, 2019
The International Law Section Gazette
Section News
Meet the ILS Executive Board 2019-2020


Chair
Clarissa A. Rodriguez, Esq.
Reich Rodriguez, P.A.
9999 NE 2nd Ave., Suite 204
Miami, FL 33138
clarissa@reichrodriguez.com

Chair-Elect
Robert J. Becerra, Esq.
Becerra Law, P.A.
1001 Brickell Bay Dr., Suite 1200
Miami, FL 33131
rbecerra@rjbecerralaw.com

Secretary
James M. Meyer, Esq.
Harper Meyer Perez Hagen Albert Dribin & DeLuca LLP
201 S. Biscayne Blvd., Suite 800
Miami, FL 33131
jmeyer@harpermeyer.com

Treasurer
Rafael R. Ribeiro, Esq.
Hogan Lovells LLP
600 Brickell Ave., Suite 2700
Miami, FL 33131
rafael.ribeiro@hoganlovells.com











International Law Section - Call for Committee Members

The International Law Section Foreign Legal Consultants Committee and Legislative Committee call for all Members to join their ranks for the 2019-2020 bar year. Join Today! 

For additional information, please email the ILS Chair Clarissa Rodriguez, clarissa@reichrodriguez.com, or ILS Chair-Elect Robert Becerra, rbecerra@rjbecerralaw.com.

Save the Date - ILS Audio Webcasts 2019-2020

Save the date for the following ILS webcasts:

September 11, 2019: (3564) The Venezuela Sanctions: Staying Clear of Uncharted Mines (audio webcast) 12:00 p.m. - 1:00 p.m. by Aleksandar Dukic, Richard Montes De Oca, and Jacqueline Arango.

September 18, 2019: (3565) The RFE Dilemma: How to Strategize Your Response to RFEs for L and H Visas (audio webcast) 12:00 PM - 1:00 PM by Larry Rifkin, Elaine Weiss, Juan Carlos Freyre.
Available CLEs

During the Spring, the Florida Bar International Law Section proudly offered CLE webinars on a wide variety of topics, including H-1B Processing, Key Changes in EU General Data Protection Regulations, and FIFA Transfer Rules and the Court of Arbitration for Sports. All past programs have a link to register for on demand and downloadable podcasts for the next 18 months.




International Law Section - Call for Member News

The Executive Board of the International Law Section calls for all Members to share news about their professional achievements, endeavors, and successes to be published in the Gazette and on the International Law Section website. 

To share your professional achievements with the ILS Network, please submit all relevant information to Davide Macelloni, Editor of the ILS Gazette.

Join the International Law Section 

If you are reading the Gazette, chances are that you are a practitioner or a student with an interest in International Law , one of the most wide-ranging, exciting and challenging legal specialties. Everyone in our field knows how crucial it is to stay on top of diverse and evolving national legal regimes, and at the same time, the difficulty of keeping meticulously up-to-date on developments around the world.

The International Law Section (ILS) of The Florida Bar is here to help you, the practitioner, navigate both the everyday and big-picture challenges of our field. Our Section is your forum to share knowledge and best practices, and to meet and mingle with peers in professional collaborations that can only enhance your grasp of the specialty and your standing among clients and peers.

Let ILS membership assist you in developing a thriving international practice through peer network development that includes important shared learnings and reciprocal referrals of clients and casework.

If your practice transcends borders, join us in making this the authoritative, go-to forum for Florida and the gateway to the region for anyone practicing International Law.  Our Section is open to lawyers from other states and countries, full-time faculty at U.S. law schools, and full-time U.S. law students , all of whom may participate as associate members. For more information regarding membership with the ILS, click HERE.


Member News
Diane Nobile Awarded for Her Years of Service with Big Brothers Big Sisters Miami


MIAMI, Fla. - June 25, 2019 - Diane Nobile, founding partner of a Miami-based international law firm , is pleased to have been awarded with a Certificate of Service from Big Brothers Big Sisters (BBBS) in recognition for over 5 years of outstanding service to the organization and its mission to ignite, empower, and defend the potential of youth in Miami. Diane is a proud Big Sister and has been volunteering with BBBS of Miami as a mentor for almost 7 years. Diane counts her work with the organization as one of the most rewarding experiences in her 21 years of active community involvement.
 
"Being recognized by Big Brothers Big Sisters is a true honor," says Nobile. "My work with this organization, and with my Little Sister, is incredibly rewarding. I look forward to continuing my mentorship for many more years to come."
 
Big Brothers Big Sisters of Miami is the premier nonprofit mentoring organization in South Florida. The organization champions hope, transformation, and social good, defending the potential of children who most need it.

In her law practice, Ms. Nobile specializes in working with international investors on pre-immigration tax planning, estate tax planning, international investors seeking to purchase or invest in US real estate, and business law.

Peter Quinter Hikes the Appalachian Trail


Peter Quinter, Chair of GrayRobinson's U.S. Customs and International Trade Practice and ILS Past Chair, recently hiked the New York and Connecticut sections of the Appalachian Trail during his eighth backpacking excursion on the AT.

For anyone interested in backpacking, contact Peter at (954) 270-1864.


From Our Members
Use of the B-1 Visa "In Lieu of H-1" - A Temporary Work Visa Off the Beaten Track

By Axel Heydasch*
 
Foreign nationals who wish to engage in gainful employment in the United States require prior governmental permission in the form of a visa issued by the U.S. State Department. There are different categories of non-immigrant visas for foreign nationals who intend to work in the United States temporarily.  Each of these visas has a clearly defined use, and both the U.S. employer and the foreign visa applicant must satisfy stringent and detailed requirements to obtain a visa. The application process is complex and comprehensive and may involve obtaining prior permissions from various government departments, or, as is the case with foreign artists or athletes, opinion letters from government recognised private entities such as trade unions and industry specific organizations.

By far the most popular visa category used by the majority of foreign visitors to the United States is the B-1/B-2 visa, which permits its holder to visit the United States for business or pleasure. The application process for this visa is less comprehensive that for other non-immigrant visas, and applicants have to deal with only one government department, the U.S. State Department.  On the business side, the regulations enumerate a number of activities a foreign visitor may engage in on a B-1 Business visa. Examples of these activities include attending board of directors' meetings, investigating investment opportunities, or soliciting orders in the United States for a foreign employer.

Among the permitted uses of a B-1 visa is the ability to engage in short term employment in the United States in a specialty occupation for qualified foreign employees.  The requirements regarding the type of employment and the qualifications of the applicant to engage in such employment mirror those of an H-1B visa, and this limited use of the B-1 visa is known as "B-1 in lieu of H-1". This use of the B-1 visa permits a foreign employer to send a qualified foreign employee to the United States to engage in a specialty occupation on behalf of the foreign employer for a limited purpose and limited period of time, without having to obtain permission from the U.S. Labor Department, and filing a petition on behalf of the employee with United States Citizenship and Immigration Services (USCIS) as conditions precedent to the actual visa application. The activities and the applicant must meet the requirements for an H-1B, in that the activities must meet the definition of a specialty occupation, which requires the applicant to possess at least a bachelor's degree or equivalent as a pre-requisite in order to engage in the activities.  Neither the regulations nor the Foreign Affairs Manual further define the limits of the activities the foreign employee may engage in.  A U.S. State Department  guidance cable of October 2012 on the subject, states that a B-1 in lieu of H-1  "may be used for activities that would normally require an H-1B."

In addition to satisfying the requirements for an H-1B visa, the B-1 applicant must overcome the statutory presumption of immigrant intent, required of every applicant for a non-immigrant visa.  Specific to the application for the "in lieu" use of the B-1 is the existence of an employment relationship with the foreign employer. The foreign employee may receive a salary or other remuneration from the foreign employer - other than an expense allowance or expense reimbursement - only from sources outside of the United States.

It is the foreign employer's obligation to supervise and direct the activities of the foreign employee at all times during the proposed stay in the United States.  This is of particular significance if the employee's activities are to be undertaken on-site at a U.S. business location.  The primary benefit of the stay must accrue to the foreign employer or further international commerce.  There must be a showing of the temporary nature of the stay.  The foreign national should be entering the U.S. for a specific and limited period of stay that is consistent with the purpose of the trip, generally not to exceed six months.

Although the "in lieu of" usage of the B-1 visa may be a useful tool for a foreign entity to permit its employees to engage in short term projects in the United States, the uncharacteristically vague definition of the permitted activities have led to abuses of this visa in the past. These abuses have resulted in calls for the elimination of this B-1 visa use, and increased scrutiny of visa applications in this category.  To date, this use of the B-1 visa remains on the books, but interested applicants need to proceed with caution, and provide the reviewing U.S. consular post with ample and adequate documentation to support the granting of a B-1 in lieu of an H-1B visa.

*Axel Heydasch is the principal of Heydasch Law, PLLC, a law firm located in Coral Gables focusing on business and immigration law. Axel Heydasch has also recently become of-counsel to the law firm of Geoffrey M. Wayne, P.A.


Update in EIN Procedures: Make Sure Your Responsible Party Has an ITIN or SSN

By Alexis I. Marrero Koratich*
 
On March 27, 2019 the IRS announced a revision to its EIN application process which went into effect on May 13, 2019 (see announcement here ). An EIN is an employer identification number, which is also known as a Federal Tax Identification Number, and is used to identify a business entity. Businesses need an EIN for a number of reasons, including to open bank accounts, obtain licenses, file income tax returns, etc.

Obtaining an EIN is a relatively simple process if the responsible party has a social security number.  This begs the question, "who is a responsible party"? Prior to May 13, 2019, a responsible party was defined as:

"[T]he person who has a level of control over, or entitlement to, the funds or assets in the entity that, as a practical matter, enables the individual, directly or indirectly, to control, manage or direct the entity and the disposition of its funds and assets. The ability to fund the entity or the entitlement to the property of the entity alone, however, without any corresponding authority to control, manage, or direct the entity (such as in the case of a minor child beneficiary), does not cause the individual to be a responsible party."  
In layman's terms, prior to May 13, 2019, a responsible party of a limited liability company was any member (or owner) of the limited liability company - even if the owner was another company; and for corporations, the responsible party was generally an officer of the company, such as a President or Vice President.

Furthermore, prior to May 13, 2019, the IRS would accept applications for an EIN even if a responsible party did not have either an EIN, SSN, or ITIN, so long as the application was made by fax by submitting a Form SS-4 and Form 2848.  However, effective as of May 13, 2019, the IRS revised its EIN application procedures as follows:

"All EIN applications (mail, fax, electronic) must disclose the name and Taxpayer Identification Number (SSN, ITIN, or EIN) of the true principal officer, general partner, grantor, owner or trustor. This individual or entity, which the IRS will call the "responsible party,"  controls, manages, or directs the applicant entity and the disposition of its funds and assets [emphasis added]. Unless the applicant is a government entity, the responsible party must be an individual (i.e., a natural person), not an entity. If there is more than one responsible party, the entity may list whichever party the entity wants the IRS to recognize as the responsible party." (see  here for the exact IRS requirements).
 

The most significant change to the EIN application process stems from the new requirement that the responsible party have either an ITIN or SSN .  This will have a significant impact on non-U.S. individuals or owners of limited liability companies who do not have an ITIN or SSN. If a non-U.S. owner of a limited liability company needs to obtain an EIN, they will first have to apply for an ITIN, which can be a complex and time consuming process and the IRS has limited the circumstances under which an individual is eligible to apply for an ITIN. Moreover, it is important to note that while the IRS has imposed the requirement that a responsible party have an SSN or ITIN prior to applying for an EIN, the IRS has not revised the rules to the ITIN application to include the need for an ITIN in order to apply for an EIN as a permissible basis for applying for the ITIN. Therefore, those advising the individual applicant for ITIN will need to carefully evaluate the rules for the Form W-7 (ITIN application - see instructions here ) in order to determine the appropriate basis for applying for the number.

Furthermore, the IRS will no longer allow an entity (such as a corporation or limited liability company) to be a responsible party on the EIN application. This process formerly worked as a "back door" to obtain an EIN quickly online.

Speaking of back doors, most tax practitioners are aware that the IRS discontinued its practice of granting EINs over the phone a number of years ago. As a result of the discontinuing the practice of granting EINs over the phones, EINs could only be obtained online so long as the responsible party (as previously defined) had an SSN (not ITIN), or by submitting a fax application if the responsible party only had an ITIN or if the responsible party had neither an ITIN or SSN. Unbeknownst to some practitioners, EINs for foreign entities can still (even today) be obtained over the phone relatively quickly.  The IRS is available to provide the EIN from 6:00 AM EST - 11:00 PM EST (this author has personally received an EIN at 11:00 PM from a parking lot at the EPCOT center) - the "back door."

Anecdotally, this author called the IRS in June to obtain an EIN for a foreign entity with a responsible party (under the new definition) who did not have either an ITIN or SSN and was able to obtain an EIN for the foreign entity over the phone, notwithstanding the recent announced enforcement of the rule requiring that the responsible party have an EIN. Was it an oversight by the IRS? Probably. Practitioners should not count on this oversight in the future. Practitioners should be prepared to account for the increased difficulty and time for obtaining EINs for non-U.S. people who do not have an ITIN or SSN. 

*Alexis I. Marrero Koratich is an associate at Geoffrey M. Wayne, P.A., a boutique law firm located in Coral Gables focusing on individual and corporate issues related to international taxation.


Upcoming Events
July 8-11, 2019
Please join the Illustre Collegi de l'Advocacia de Barcelona (ICAB) for its 2019 Summer Law course. The 4-day program will include, among others, panels on Information Technology Law and Tax and Compliance Law. For additional information and registration, please click here. For the complete program, click here.

September 3-7, 2019
T he 57th International Young Lawyers' Congress of the  Association Internationale des Jeunes Avocats - International Association of Young Lawyers  will take place in Rome, Italy. The event will be an opportunity to network and learn with a focus on "Sustainability and the Law. Planet. People. Future." For more information or to register, please  refer to th event's website .

September 22-27, 2019
The  International Bar Association invites all members to attend its 2019 annual conference, which will be held in  Seoul, South Korea , a thriving metropolis that mixes the traditional with the modern - from skyscrapers, high-tech subways, K-pop culture and K-beauty to Buddhist temples, palaces and street markets and a history going back 5,000 years. For more information or to register, please refer to the event's website .



Winter 2019 ILQ
International Law Quarterly: Winter 2019

The new issue of the International Law Quarterly - Focus on International Human Rights is now available. Click on the image below to download.

For all previous issues of the International Law Quarterly, please click here.


Visit our Sponsors                                             
ILS Thanks its Sponsors 

In light of what we accomplished this past year, we hope you will continue to support the Section as a sponsor. In 2018-2019, various firms, companies and suppliers sponsored the Section. 

We look forward to another year of innovative programs where we can advance international law and further promote our sponsors. To learn more, read the Section's sponsorship package. You can also c ontact our Treasurer, Rafael R. Ribeiro at rafael.ribeiro@hoganlovells.com  for more details.

  BECOME A SPONSOR  for the 2019-2020 Cycle!
The ILS Gazette


Chair: Clarissa A. Rodriguez
Immediate Past Chair: Carlos F. Osorio
Chair-Elect: Robert J. Becerra
Secretary: James M. Meyer
Treasurer: Rafael R. Ribeiro