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Embezzlement is defined as “the fraudulent conversion of property of another by a person in lawful possession of that property.”  This crime generally involves a relationship of trust and confidence, such as an agent, fiduciary, trustee, treasurer or attorney.  Many do not see the difference between being charged with another white- collar crime like larceny.  The difference is this: with larceny, the perpetrator never had legal possession of the property carried away.  While the crime of embezzlement requires that the perpetrator had lawfully possessed the property, but then converted it into his/her own property.

 

The following example illustrates the difference:

A person walks onto a construction site and takes a hammer and then goes home.  This individual will be charged with larceny, since he took someone else’s property, with the intent of never returning it.  A construction worker on that same site, who uses the hammer every day, puts it in his pocket at the end of the day takes it home.  He had just committed embezzlement, because he was given the hammer to use on site, but when he took it off site, he converted it into his own property.

 

Depending on the amount of money or value of property involved, the government may file the case as a misdemeanor or a felony, punishable by fine/imprisonment or both.  An embezzler is someone employed in a fiduciary capacity.  A common mode of operation for embezzlers usually entails making false journal entries, altering documents, and manipulating expense records.  This usually means making payments to “dummy” suppliers and vendors or diverting funds from legitimate accounts into “dummy” accounts.

 

The criminal act of embezzlement usually involves three phases:  The first phase is the criminal act itself, taking money or property manually, by computer, or by telephone.  Second, the embezzler conceals the act, by falsifying documents or by making misleading journal entries.  Finally, the last act involves converting the stolen assets into cash and spending it.

 

At each stage, the embezzler is subject to detection.  At the first phase, it usually requires the embezzler to be caught in the act.  The second phase requires detection by auditors or accountants.  Lastly, conversion of the funds can be detected by recognizing a change in the embezzler’s lifestyle.  Virtually any business can be a victim of embezzlement.  But the crime itself is difficult to detect.  Thus, prevention is key to many businesses.

 

Internal controls are import aspect of a fraud prevention program.  Typical controls could easily be implemented and such safeguards help to minimize opportunities for greed:  (1) Do not use signature stamps for checks.  They are too easy to misuse.  Sign the checks yourself.  (2) Minimize the number of employees who have signature authority on bank accounts.  (3) Do cross training so that people have multiple functions insuring audits on each other’s work. (4) Do a background check on employees, especially those that handle the money.  Clearly, there is more that could be done, but instituting a proper division of functions is a preventive measure.

 

For example, in the banking industry, the Office of the Controller of the Currency requires that all bank employees in the United Sates take at least seven consecutive days of vacation per year.  Many cases of fraud have been discovered while employees were on vacation and unable to cover their tracks.  While one can never really protect your business against all forms of theft or insure against dishonest employees or agents, internal controls should be a priority for all businesses.

 

By: Lilli Baculi, Esq.

 

Homer, a noncitizen foreign national, is married to Lydia, a United States citizen, and by virtue of this marriage was accorded a lawful conditional permanent resident status.  However, not even a full year into the marriage the newlyweds find themselves extremely unhappy with each other and are fighting incessantly.  Lydia files for divorce and the marriage is terminated.  A few months after the divorce was finalized, Homer marries for the second time to Barbara, who is also a United States citizen.  Homer now seeks to adjust his status to that of a lawful permanent resident based on his current marriage to Barbara.  However, his application to adjust status was rejected because his status as a conditional permanent resident based on his first marriage has not been terminated.

 

Can Homer terminate his conditional status based on his marriage to Lydia, and subsequently adjust his status based on his current marriage to Barbara?

 

According to the Immigration and Nationality Act (INA): In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Attorney General determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that (A) the qualifying marriage … (ii) has been judicially annulled or terminated, other than through the death of a spouse; … the Attorney General shall so notify the parties involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien involved as of the date of the determination. 

 

Moreover, the Board of Immigration Appeals has highlighted the authority of the Citizenship and Immigration Services of the Department of Homeland Security to affirmatively terminate the conditional resident status of a noncitizen foreign national according to the INA.  Termination of an alien’s conditional resident status can occur in three ways. First, under section 216(b)(1) of the INA, they may terminate the alien’s conditional resident status before the 2-year conditional period expires, where the Service determines that the qualifying marriage was judicially annulled or terminated.  Second, the Service may terminate the conditional resident status for failure to timely file a joint petition to remove the conditions on permanent resident status.  Finally, the Service may terminate the noncitizen’s conditional resident status upon determining that the information provided in the joint petition to remove conditions is untrue.

 

In Matter of Stockwell, the Board found that the Service properly terminated respondent’s conditional permanent resident status because the qualifying marriage had been legally terminated.  Similarly, in Matter of Lemhammad, the respondent married a United States citizen and obtained a conditional resident status under Section 216 of the Act.  Sometime thereafter, the respondent and his wife divorced, and the Service terminated his conditional resident status under section 216(b)(1)(A)(ii) of the Act, based on his divorce.

 

The Board also held that an alien holding a conditional permanent resident status is prohibited from adjusting his status under 245(a) of the Act, pursuant to Section 245(d) of the Act.  However, Section 245(d) of the Act does not prohibit an alien, whose conditional permanent resident status has been terminated, from adjusting his status under Section 245(a).  There, respondent’s conditional resident status was terminated by the Service upon his divorce from his US citizen spouse.  Respondent thereafter sought to adjust his status based on his (second) marriage to a US citizen spouse, whose visa petition filed on his behalf was approved.  The Board found that section 245(d) does not bar the respondent from adjusting his status pursuant to section 245(a) of the Act, based on his second marriage to a US citizen spouse.

 

Thus, Homer should be able to adjust his status to that of a lawful permanent resident based on his second marriage as long as his conditional resident status based on his first marriage is terminated.

 

Marriage and divorce are very personal in nature and in themselves are hard enough decisions to make, and navigating through the immigration laws on top of it makes it more difficult and frustrating.  It is important to be informed and know your options. An experienced immigration firm or attorney will be able to help you understand what immigration terms mean specific to the regulations, what steps might be taken for your particular case, and the options available to you under the evolving immigration laws.

 

Atty. Lilli A. Baculi  is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) - a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 

By Laura Power

 

Together in Hope is a nonprofit working with some of the world's poorest communities living in the Philippines, El Salvador and Ethiopia who have been forgotten by international development organizations. We work with these communities to help them break the cycle of poverty and give them a future with hope.

 

We are working with four communities in the Philippines: Malis, Bulacan; Bicol; Rizal, with Harris Memorial College, and Obando, providing nutritional and educational support, health support, and livelihood and leadership training. Together in Hope began working in Malis in 2008 establishing the Jessica’s Table program, a feeding and educational support program for children living in marginal communities. This program feeds over 400 children each week. 

 

We also assisted with the opening of three preschools and two sewing centers in Rizal and Bicol.

 

In order to raise much needed funds for these communities our executive director Diane McGehee  will be fasting by eating rice, beans, vegetables, fruit and water worth $1dollar a day (the amount on which many of the Filipino poor live each day) for 30 days with one feast day a week.

 

The fast will take place July 26 - August 28, 2013. 

 

During her fast we are asking 1000 Filipinos living in the United States who will each donate $50 between now and September 1, 2013 to help their brothers and sisters living in poverty in Bulacan, Bicol, Rizal, and Obando Philippines..Our goal is to raise 50,000. 

 

For more information, contact :

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By Robert L. Reeves & Nancy E. Miller

 

The debate on the Immigration Reform Bill will begin this week in the Senate.  Republicans in the House are talking about defunding DACA.   Clearly, the future of these aspects of immigration law are unknown.  What we do know is that there is some relief that has become a reality.  Those who are eligible should take advantage of that now.  

 

After months of waiting, the Provisional Unlawful Residence Waiver is a reality.  As of March 4, 2013, aliens who are eligible for green cards but don’t qualify to complete the process in the United States have been able to obtain their waiver of the 10-year unlawful presence bar in the United States if they can prove extreme hardship to their United States citizen parents or spouse.  While they will still need to obtain their green cards through consular processing, they will leave the United States with the certainty that their waiver has been granted and the reasonable expectation that their time outside the United States will be a matter of weeks rather than months or years.  It is estimated that as many as 1 million individuals will be eligible to benefit from this significant change in the processing of unlawful presence waivers. 

Immigrants who entered United States without inspection, who lost proof that they were lawfully inspected and admitted into the United States, who entered the United States as crewmen, and who entered the United States as fiancé(e)s but did not marry their U.S. citizen petitioner, are not eligible to apply for permanent residence (green card) from within the U.S.  They must first return to their home country and be processed through the U.S. Embassy. However, when they leave the U.S. they automatically trigger a bar of up to 10 years for overstaying. They must then apply for a waiver of that bar at the U.S. Embassy.  This holds true even if they are married to a U.S. citizen.  

 

Many immigrants in this situation faced an incredibly difficult decision – remain in the United States illegally or leave the United States to apply for their green card and a waiver of their unlawful presence at the U.S. Embassy abroad with the possibility that the waiver could be denied and they could be stuck outside the United States for the next 10 years.   Even for those granted the waiver, the time outside the United States waiting for the decision could be 6 months or a year.  That is a long time to be separated from a loving spouse, an elderly parent or a young child.  

 

The provisional waiver rule alleviates this Draconian Choice by allowing prospective immigrants to obtain their unlawful presence waiver within the United States.  

 

Only spouses and children of U.S. citizens are eligible for the provisional waiver.  In addition, the applicant must be inadmissible to the United States only because of unlawful presence, have an approved immigrant visa petition from his or her U.S. citizen family member, be physically present in the U.S. at the time the application is filed, and have biometrics taken in the U.S. in order to qualify for the program. Applicants whose waiver applications have been denied or withdrawn may file a new application.  

Individuals in removal proceedings may file if their court case has been administratively closed and has not been recalendared at the time of filing for the waiver.  After the waiver is granted, they may file to terminate their court proceeding. This last step is important to avoid an unintentional removal order.  

 

Unfortunately, immigrants who have outstanding deportation orders, or are not physically in the United States are not eligible for the provisional waiver.  The provisional waiver process is also not applicable for grounds of inadmissibility for prior misrepresentation or criminal convictions.   And, while the unlawful presence waiver is available for those with Lawful Permanent Resident parents or spouses, the provisional waiver process is not.  Currently, those whose qualifying relative are green card holders must still apply for the waiver after they have left the United States and wait outside for it to be adjudicated.  Whether the provisional waiver will be expanded remains to be seen.  

 

The filing or the approval of a provisional unlawful presence waiver will not confer any legal status on the applicant in the United States.  Approval of the waiver does not protect against additional unlawful presence, authorize entry into the United States without a visa or other entry document, provide employment authorization, or protect the applicant from being placed into removal proceedings.  It also does not change the legal standard for ultimately being granted the waiver – the applicant must still demonstrate extreme hardship to his or her U.S. citizen spouse or parents.

 

Anyone who is now or may soon be eligible to obtain a green card through consular processing should consult an experienced and knowledgeable immigration lawyer about this wonderful path to legal status without significant separation from family.