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Located in the Miami metropolitan area, the Law Offices of Santiago J. Padilla, P.A., offers comprehensive services for business clients with a variety of needs.

Miami Business Law Blog

Immigration Approvals Coming with Much More Regularity

I am happy to report that we are experiencing a significant increase in the speed and fequency of immigration approvals.  Recently, we've had several approvals in one of the most difficult of immigration categories, the multinational executive category (EB-1) and such petitions have  been approved with lightning speed.  Click here to see the most recent Approval Notice.pdf that we received.  As it can be seen, the approval was granted in approximately 6 to 7 months.  In this case, NO request for evidence was sent to us!

The EB-1 multinational executive category is increasingly difficult because of the stringent requirements placed by USCIS, such as proving that the alien was an executive with the affiliate company and will be or is an executive in the U.S.  While seemingly simple, this requires the presentation of documentation showing that the alien performed duties at an executive level and had subordinate employees that were either managerial employees or professional employees with university degrees and responsible for the work of subordinate employees. 

Obtenga una visa de inmigración a los Estados Unidos Comprando un Negocio

Una de las formas más fáciles para que un ciudadano extranjero inmigre a los Estados Unidos es mediante la compra de un negocio en el país, particularmente si el ciudadano extranjero es ciudadano de una nación que tiene un tratado con los Estados Unidos, como Argentina, Italia, Colombia y Honduras entre otros. El Departamento de Estado Norteamericano publica una lista de países que tienen un tratado con los EE. UU., que se puede encontrar aquí: Treaty Countries.

Según las regulaciones de visas de los Estados Unidos, si un ciudadano extranjero invierte de $150,000 a $250,000 y compra un negocio, ese ciudadano extranjero podrá trabajar y vivir en los Estados Unidos casi indefinidamente, siempre que el negocio continúe operando. Además, hay múltiples negocios en venta en el rango de $150,000 a $250,000, especialmente en el área del sur de Florida. A continuación, se presentan ejemplos reales y actuales de negocios, que estan disponibles al dia de hoy para comprar:

  • Peluquería con 19 años de historia ubicada en Doral, Florida - $175,000
  • Farmacia en Tamarac, Florida - $175,000
  • Subway sandwich shop en Miami, Florida - $180,000
  • Negocio de reparación de automóviles en Hialeah, Florida - $190,000
  • Restaurante italiano en Biscayne Boulevard, Miami, Florida - $200,000
  • Gimnasio en Miami, Florida - $200,000
  • Negocio de aseo de mascotas con 24 años en el mismo lugar en North Miami, FL - $240,000
  • Negocio de limpieza en seco en Miami Lakes, Florida - $245,000
  • Estación de servicio Sunoco, con tienda incluida y lavado de autos en Hialeah, FL - $250,000
  • Pizzería en Sunny Isles Beach, Florida - $250,000
  • Restaurante pequeño en Key Biscayne, Florida - $250,000

Automobile Salespersons are Entitled to Overtime Compensation

Every now and then we are asked whether or not automobile salespersons are entitled to overtime compensation.  The U.S. Department of Labor (DOL) answered that question in the affirmative several years ago in an action the DOL brought against Plattner Automotive Group, which operates 11 dealerships in the State of Florida.  The Department of Labor determined that the company had violated provisions of the Fair Labor Standards Act (FLSA). One of the points stressed by the DOL in that case was that while there is an overtime exemption for commissioned automobile salespersons, such salespersons must still be paid at least the federal minimum wage for all of the hours that they work.

Typically, automobile salespersons are paid a set "draw" which is based on working forty hours per week at the minimum wage or slightly above the minimum wage. Problems arise if the salesperson either works more than forty hours per week or does not sell any automobiles. The problem is compounded if the salesperson works more than forty hours per week and does not sell any automobiles. The salesperson receives the draw, but does not receive any compensation for work performed over forty hours per week.  That would be a violation of the FLSA.

Florida False Claims Act may be a Remedy for Employees that are Faced with doing Employer's Bad Deeds

Under the Florida False Claims Acts, if an employee becomes aware that his or her employer has filed a false claim to a governmental agency, that employee may file a lawsuit and be awarded as much as 25 to 30 percent of the amount recovered. There is also a federal False Claims Act that covers federal false claims. For example, if an employee is required to submit a false time card or false report (e.g., an insurance report) to a state or federal agency under which the employer has a contract to provide products or services, the employee may sue under the applicable Florida or federal False Claims Act and will be awarded compensation. These laws are meant to assist the government in recovering money that is stolen by government contractors. The lawsuits are called "Qui Tam" lawsuits, which is short for "Qui tam pro domino rege quam pro se ipso," a Latin phrase which means "He who sues on behalf of the King, also sues for himself as well."

However, it should be noted that an individual cannot file a claim based on "public information." The individual must be the original source of the information, e.g., he or she must have personal knowledge of and/or seen the false claim or fraud perpetrated. In the employment context, if an employee is required by his employer to submit a false claim or report, that employee has standing to sue under the False Claims Act and may recover as much as 30 percent of the amount recovered by the government. If an employee files a claim under the False Claims Act and gets fired because of it, then the employee can sue the employer for retaliation under the Florida Civil Rights Act or under the applicable federal law.

Who Wins the Battle of the Pre-Printed Forms?

Many small and medium-sized business owners use preprinted purchase orders, order acknowledgments or delivery receipt forms. Many of these forms can be obtained on the internet. However, while convenient, the forms are dangerous to use. Many of the preprinted forms obtain on the internet or from forms providers come with detailed legal terms written in small print on the back of the form. This is usually called "boilerplate language." However, it can get the user in trouble if not used properly.

Under general rules of law, when a business sends over a form to a supplier (e.g., a purchase order) via email or fax, but the supplier responds by sending over another form (e.g., an order confirmation), the parties may believe that they have a contract, but actually, they do not. Under the "mirror image rule", no contract is formed when the parties exchange forms that are materially different. While this only applies to transactions involving services, under common law if the terms and conditions of the forms do not match, then the parties run the risk that the last preprinted form exchanged between them would apply, so that the supplier, for example, would not get the benefit of using the preprinted form.

La Significancia del Franchise Disclosure Document

El Franchise Disclosure Document (o documento de divulgación de franquicia) (FDD) es un documento legal que se proporciona al franquiciado con respecto a la información de divulgación relacionada con el funcionamiento de una franquicia. El franquiciado es aquel que tiene la intención de comprar una franquicia. Las franquicias que operan en los Estados Unidos están parcialmente reguladas por la Federal Trade Commission (Comisión Federal de Comercio) (FTC). La FTC establece que se deben cumplir ciertos criterios para garantizar que las franquicias proporcionen a los posibles franquiciados (compradores potenciales) toda la información necesaria necesaria para que la persona tome una decisión bien informada sobre si o no para convertirse en franquiciado en la empresa.

Buying property from far away

Starting a business in the United States can get expensive. You spend time developing your idea and saving money for your new business, but there can be many expenses that eat away at the money you planned to invest in your new business.

One way to save on starting your new business is to handle your property purchase remotely. It can be challenging, but with the right team in place, you can avoid expensive trips back and forth before you are ready to launch your business.

A Mandatory Gratuity or Service Charge is Not a Tip and Need Not be Shared with Employees

As many people know, under the Fair Labor Standards Act, persons who work for tips are called tipped employees and the employer may pay such employees less than the required minimum wage. For a the employer, this is called the "tip credit."  This applies to most restaurant employees, such as waiters, bussers, etc. However, the law also states that such employees must be able to keep all of the tips received and the employer cannot keep any portion of those tips.

However, nowadays, many restaurant establishments are implementing what is called a "mandatory gratuity" or a mandatory "service charge" (such as 18%) and the question is how is that treated? Under the law, a mandatory gratuity that is imposed by the restaurant establishment is not considered a tip and, as such, the employer may keep all of the mandatory gratuity and not share any portion of it with the employee. The question then becomes whether the "mandatory gratuity" is really mandatory. That seems like a circular question, but if the customer has the ability to pay less than the mandatory gratuity (because, for example, the customer complains), then all of a sudden, that mandatory gratuity becomes a bona fide tip that only the employee can keep.

Investing in an American franchise

For some, the entrepreneurial spirit means developing an idea for a product or service and striking out on your own. For those who do not have a new idea (or a twist on an old one), investing in a franchise offers a unique opportunity.

An American franchise offers people who want to be their own boss the opportunity to have the independence of owning a business with the support of remaining an employee. Depending on the amount you have to invest, there may be nearly limitless opportunities.

Getting to America to start a business

It seems no matter how the political and economic climate changes in the United States, it is still a land of opportunity for those seeking a new path. Unfortunately, the process of becoming a U.S. permanant resident and/or U.S. citizen can seem complicated and cumbersome.

If you are interested in starting a new business in the U.S., there are a few special options for getting a work visa. As you make your plans, consider how long you want to stay and what you plan to do.