Update on H-1B Number Usage

According to the United States Citizenship and Immigration Services’ (“USCIS”) most recent count of H-1B Petitions received that are subject to the FY 2013 regular cap, as of May 11, 2012, USCIS had received approximately 36,700 petitions subject to the 65,000 annual cap (6,800 quotas are reserved for Chile and Singapore pursuant to Free Trade Agreements with those countries making the effective annual regular cap 58,200.) Additionally, USCIS has received approximately 14,800 petitions for foreign workers with advanced degrees, (Master’s degrees or higher) from U.S. institutions, that are subject to a separate 20,000 annual cap. Unless otherwise exempt from the cap, petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will now be counted against the regular cap since USCIS has received sufficient petitions to reach the advanced degree cap. USCIS will continue to accept both regular and advanced degree H-1B petitions until the annual regular quota is reached. Employers who still have a need for new H-1B workers to commence work before October 1, 2013 (when the new fiscal year H-1B cycle will begin) should consult with immigration counsel as soon as possible in order to take advantage of the H-1B numbers while they are still available and to carefully analyze those circumstances in which cap exemptions might be claimed.

Exemptions from the annual quota cap may apply in instances of: requests for extensions of stay for current H-1B workers; amendments to H-1B petitions requesting a change in the terms of employment for current H-1B workers; and change of employer petitions for individuals already in H-1B status. In addition, petitions for new H-1B employment are not subject to the annual cap if the foreign professional will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

The H-1B visa classification is for temporary employment of foreign professionals in specialty occupations, including but not limited to, information technology professionals, business analysts, financial managers, engineers, architects, and allied health professionals such as physical therapists, as well as fashion models.

USCIS will continue to provide updates as the processing of H-1B petitions continues.

For more information, please on the following link:

H-1B Cap

Update: Employment visa petitions received to date that count toward H-1B quota is a post from: Gunster Law Firm

Confidential Submission Process

The SEC has implemented a secure e-mail system that allows a registrant that qualifies as an Emerging Growth Company (as defined in the JOBS Act) to confidentially file draft registration statements with the SEC.  Commencing this past Monday, May 14th, the secure e-mail system will replace the procedures announced on April 5, 2012.  Instructions on how to use the secure e-mail system are fairly easy to follow.

The change to allowing confidential submissions is a fairly radical, and welcome, change to companies filing their initial public offering.  Whether the confidential submission process becomes widely used is still up for debate.  While there are large advantages for keeping initial submissions private (keeping information secret from competitors until you decide to go forward with the IPO, shortening the “in registration” period to better time the markets, and avoiding embarrassing registration statement withdrawals), there are also some potential disadvantages.  For example, often companies filing initial registration statements are simultaneously reviewing other strategic options such as selling the company.  Filing the registration statement publicly effectively alerts the markets that your company is “in play.”  In addition, the initial filing of a registration statement usually prompts potential plaintiffs with claims to file their lawsuits, which gives management time to amend the registration statement to disclose the risks of the lawsuit.  By not filing a publicly available registration statement until 21 days before the road show, plaintiffs may not have an opportunity to file the lawsuit before marketing commences.

Emerging Growth Companies

Title I of the JOBS Act relating to Emerging Growth Companies has been in effect since the JOBS Act was enacted.  Consequently, the SEC has issued a set of 41 FAQs, which they periodically update.  Here are some of the more important questions and answers: 

• An Emerging Growth Company needs to identify itself as such on the cover page of its prospectus.
• Other than accounting standards (which must either be fully adopted or delayed), Emerging Growth Companies may elect the new scaled disclosure on an á la carte basis.  This gives a company going public extra flexibility in its disclosures. 
• The SEC confirmed that an Emerging Growth Company’s selected financial data needs to cover only two years. 
• If an Emerging Growth Company elects to take advantage of the extended transition period for complying with new or revised accounting standards, the company should make this election at the time the initial submission is made.  Once an Emerging Growth Company elects to “opt out” of the transition period, the decision is irrevocable.  Companies should refer to Staff Accounting Bulletin Topic 11M for guidance on providing disclosure on adoption dates of the delayed accounting standards.  The extended transition period applies only to standards that also apply to nonpublic companies. 
• Even if a company exceeded $1 billion in revenue in a previous year, it may still qualify as an Emerging Growth Company if revenue was less than $1 billion in the most recently completed fiscal year. 
• Comment letters and issuer responses (even those submitted confidentially) will be released publicly 20 business days following the effective time of the registration statement. 
• Emerging Growth Companies must comply with XBRL.  No relief will be provided.
• If a company restates financial statements after submitting a draft registration statement (even confidentially), the company must include the restatement disclosures in its financial statements. 

Crowdfunding

The SEC has reminded issuers that until the SEC adopts rules to implement the new crowdfunding exemption under the JOBS Act, offers or sales of securities attempting to rely on the crowdfunding exemption would be unlawful.

Under the crowdfunding provisions of the JOBS Act, an issuer must use a “funding portal” to take advantage of the new crowdfunding exemption from registration.  A funding portal is merely an intermediary between the investor and the issuer.  The Division of Trading and Markets has issued a set of FAQs related to the crowdfunding intermediary provisions.  Generally, these FAQs remind potential intermediaries that they will need to register with the SEC and FINRA, but such registration cannot occur until the SEC has issued rules on the registration process. 

Deregistration Process

The SEC issued a set of FAQs in April specifically addressing the deregistration process.  Some of the most pertinent questions and answers related to the process of deregistration, including how to terminate Sections 12(g) and 15(d) registration obligations.  This process known as “going dark”, while not as prone to litigation risk as a “going private” transaction, is a fairly complicated process.  One of the stumbling blocks we have found is that while a company may be eager to suspend its reporting obligations, if it has an outstanding registration statement on Form S-3 or Form S-8 and it has filed its Form 10-K already, then the company will likely be compelled to continue filing its periodic reports through its next Form 10-K because of its Section 15(d) obligations.  For further information, you can listen to our recent podcast at the thecorporatecounsel.net. 

For more information about how the JOBS Act may apply to your business, contact David C. Scileppi.

Find out more about Gunster’s Emerging Growth Companies Task Force.

JOBS Act update: Keeping current with the SEC’s interpretations is a post from: Gunster Law Firm

On the show, Scileppi discusses the process of deregistration under the JOBS Act and provides tips by answering questions such as: How does the JOBS Act facilitate the ability of banks to deregister? What is the SEC guidance on this so far? What is the process for banks to follow if they determine they are eligible to deregister? Any surprises when doing one of these deregistrations?

For more information, visit Gunster’s Emerging Growth Companies Task Force.

‘Inside Trac’ podcast features Gunster attorney, bank tips on JOBS Act deregistration is a post from: Gunster Law Firm

For more information about how the JOBS Act may apply to your business, contact David C. Scileppi.

Find out more about Gunster’s Emerging Growth Companies Task Force.

SEC continues to issue FAQs on the JOBS Act is a post from: Gunster Law Firm

On December 31, 2012, American taxpayers will be facing one of the largest tax increases in U.S. history, due to the expiration of existing tax cuts. These increases will have a profound impact on the value of businesses.

In an uncertain political environment, you need to understand these threats and your options, including how you might capitalize on potential opportunities.

Join us for a breakfast forum that highlights the critical components of this impending tax storm.

Introduction by U.S. Senator George S. LeMieux, Chairman of the Board, Gunster

Gain insight from Washington insiders:

Jeffrey D. McMillen, former staff director of the Ways and Means Committee’s Subcommittee on Select Revenue Measures
Arshi Siddiqui, former policy advisor and counsel to House Speaker Nancy Pelosi

Regardless of whether the tax cuts are allowed to expire, a forward-looking approach to planning for the future of your business is critically important. Don’t wait to plan!

Attendees will include business owners, strategic investors, private equity and venture capital firms, investment bankers and high-net-worth individuals.

May 30 in Palm Beach
Four Seasons
2800 S. Ocean Blvd.
Palm Beach, FL 33480
Royal Poinciana Room

– or –

June 1 in Fort Lauderdale
B Ocean
999 N. Fort Lauderdale Beach Blvd.
Fort Lauderdale, FL 33304
Infinity Ballroom

7:30 a.m. – 9:30 a.m.
Breakfast starts at 7:30 a.m.;
program begins at 7:40 a.m.

Choose your date and location now:

–Agenda–

Welcome Remarks

U.S. Senator George S. LeMieux, Chairman of the Board, Gunster

The Tax Increases – an Overview

Adi Rappoport, Shareholder, Gunster

Learn the details of the anticipated increases including personal income tax rates, “stealth” taxes, dividend tax rates, capital gains, estate and gift tax changes, and the new 3.8 percent Medicare contribution tax on the investment income of higher-income individuals under the Health Care reform legislation of 2010.

View from the Hill

Arshi Siddiqui, Partner, Akin Gump
Palm Beach event speaker (May 30)

Jeffrey D. McMillen, Partner, Akin Gump
Fort Lauderdale event speaker (June 1)

Both speakers will use inside knowledge to discuss the considerable political dynamics in forecasting what tax policy will prevail after the November election, how the election could impact tax policy, and the current state of discussions among senior staff in Congress and the Administration.

About Arshi Siddiqui:

Ms. Siddiqui came to Akin Gump after serving as senior policy advisor and counsel to House Speaker Nancy Pelosi (D-CA). She joined Speaker Pelosi’s leadership staff in 2003 and provided counsel on numerous legislative initiatives. Her primary duties consisted of advising the Speaker and Democratic members on issues related to the Ways and Means Committee including tax, trade, energy, pensions and health care. In that capacity, Ms. Siddiqui helped develop the House’s legislative strategy on priority bills, working with the Administration, relevant committees in both chambers and Senate leadership to forge consensus.

About Jeffrey McMillen:

Before joining Akin Gump, Mr. McMillen was the staff director of the House Ways and Means Committee’s Subcommittee on Select Revenue Measures, where he served under Committee Chairman Bill Thomas (R-CA) and Subcommittee Chairman Jim McCrery (R-LA). During the course of his tenure, he assisted in drafting notable legislation including the Energy Tax Policy Act of 2003 and in developing the Jobs and Growth Tax Relief and Reconciliation Act.

Corporate Legal Perspective: The Sell Side

David G. Bates, Shareholder, Gunster
Palm Beach event speaker (May 30)

Robert C. White, Shareholder, Gunster
Fort Lauderdale event speaker (June 1)

Business owners still have a unique opportunity to take advantage of the 2012 tax laws avoiding unfavorable effects of what could be dramatically higher tax rates. David Bates and Bob White will discuss what business owners should consider now to ensure that they are well positioned to sell their business or to take advantage of alternatives such as a potential sale, financing transaction, recapitalization, dividend distribution or transfer of appreciated assets.

Investment Perspective: The Buy Side

John Caple, Managing Director, The Comvest Group
Palm Beach event speaker (May 30)

Craig L. Farlie, Managing Director, Farlie Turner & Co.
Fort Lauderdale event speaker (June 1)

Gain an understanding of how the current climate and this fast approaching deadline might impact the investment market. Both speakers will discuss the appetite for debt and equity markets as well as valuation strategies and what industries are most attractive. In addition, as selling pressure increases, how will this impact the likelihood of consummating transactions and pricing?

The Clock is Ticking: Use It or Lose It! Wealth Preservation Techniques

Lisa A. Schneider, Shareholder, Gunster

What actions should you consider before year end to take advantage of the expiring multimillion dollar gift and generation-skipping tax exemptions? Lisa Schneider will discuss significant transfer tax opportunities that are set to expire on December 31, 2012.

Closing Remarks and Q&A

U.S. Senator George S. LeMieux, Chairman of the Board, Gunster

Why it’s important:

The panel will address issues affecting businesses due to the 2013 tax increases, including:

• What is the likelihood of these tax increases taking effect?
• What actions can business owners take before the end of the year to lessen the impact of the anticipated tax increases?
• What estate planning actions should high net worth individuals consider before year end?
• How will the anticipated tax increases create opportunities for acquisitive companies, private investors and private equity firms?
• What is the appetite for the debt and equity markets to transact before year end?
• What industries are currently most attractive and how should companies be valued today?
• What are effective buyer and investor strategies to utilize to consummate transactions?
• What personal planning should sellers and other high net worth individuals be considering to take advantage of current tax rates before year end?

The impending tax storm … do you have a plan for your business? is a post from: Gunster Law Firm

The Division focused on the following areas:

• Allowance for Loan Losses
• Charge-off and Nonaccrual Policies
• Commercial Real Estate
• Loans Measured for Impairment Based on Collateral Value
• Credit Risk Concentrations
• Troubled Debt Restructurings and Modifications
• Other Real Estate Owned
• Deferred Taxes
• Federal Deposit Insurance Corporation Assisted Transactions

The Division made it clear that the guidance is not one-size-fits-all so registrants will need to carefully analyze the guidance and how it may apply to them. While the guidance is too lengthy to summarize here, the Division appears to be focused on making the disclosures in the areas above more transparent and meaningful. For example, the Division wants more disclosure on how a registrant calculates the allowance for loan losses and the components of the allowance. Given the financial difficulties facing financial institutions over the past several years, this guidance is not surprising.

The guidance essentially provides a list of issues for each category above that needs to be addressed in a registrant’s Management’s Discussion and Analysis and accounting policy disclosures. This roadmap will be a useful tool for small financial institutions with their future SEC filings. Make sure to consider it when drafting your next registration statement or periodic report to help avoid comments from the SEC.

For more information, please contact Greg Bader at Gunster.

New MD&A guidance for smaller financial institutions is a post from: Gunster Law Firm

Rappoport joined the firm in 2001 and focuses his practice on tax law, corporate law and private wealth services. He earned his L.L.M., J.D. with honors, and a B.S. in accounting with highest honors from the University of Florida.

About Gunster

Established in 1925, Gunster is a full-service Florida law firm with nine offices around the state providing counsel to leading businesses and individuals. Our statewide presence and culture reflect the firm’s status as Florida’s law firm for business. Gunster serves clients from its offices in Fort Lauderdale, Jacksonville, Miami, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach and its headquarters in West Palm Beach, with more than 165 attorneys and 200 committed support staff. Gunster is ranked among the National Law Journal’s list of the 250 largest law firms.

Gunster’s Adi Rappoport joins Board of Directors of the JCC of the Greater Palm Beaches is a post from: Gunster Law Firm

Yesterday, President Barack Obama issued an Executive Order (the “Order”) prohibiting certain transactions with and suspending entry into the U.S. of Foreign Sanctions Evaders (“FSEs”) with respect to Iran and Syria.

The Order provides the U.S. Treasury Department (“Treasury”) with a new authority to further tighten the U.S. sanctions on Iran and Syria and targets foreign individuals and entities that have violated, attempted to violate, conspired to violate, or caused a violation of U.S. sanctions against Iran or Syria, or that have facilitated deceptive transactions for persons subject to U.S. sanctions concerning Syria or Iran.

With this new authority, Treasury now has the capability to publicly identify foreign individuals and entities that have engaged in these evasive and deceptive activities, and generally bar access to the U.S. financial and commercial systems.

The Order is the latest in a broad-based and escalating series of steps taken by the U.S. and its international partners targeting the governments of Iran and Syria with respect to their abuse of human rights, support for terrorism, and proliferation and development of weapons of mass destruction.

As a result of the Order, financial institutions may need to enhance their current BSA/AML/OFAC programs to ensure compliance with the Order.

Read a complete copy of the Order.

President’s order prohibits certain sanction-evasive acts with respect to Iran and Syria is a post from: Gunster Law Firm

Luna Phillips is Florida Board Certified in State and Federal Government and Administrative practice. She focuses her practice at Gunster on governmental, administrative and environmental law. She earned her J.D. from Mercer University School of Law and a B.S. from the University of Florida.

About Gunster

Established in 1925, Gunster is a full-service Florida law firm with nine offices around the state providing counsel to leading businesses and individuals. Our statewide presence and culture reflect the firm’s status as Florida’s law firm for business. Gunster serves clients from its offices in Fort Lauderdale, Jacksonville, Miami, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach and its headquarters in West Palm Beach, with more than 165 attorneys and 200 committed support staff. Gunster is ranked among the National Law Journal’s list of the 250 largest law firms.

Gunster’s Luna Phillips elected Secretary of Florida Earth Foundation is a post from: Gunster Law Firm

Trusted Traveler Programs by U.S. Customs and Border Protection

International Business Travelers are frequently inconvenienced by long lines at U.S. Immigration when entering the U.S. By taking advantage of one of the U.S. Customs and Border Protection (“CBP”) Trusted Travel Programs, much time can be saved at the time of entry. CBP’s Trusted Traveler Programs (GLOBAL ENTRY, NEXUS, SENTRI, FLUX and FAST) have been created to expedite the entry process into the U.S. for low-risk travelers when arriving at U.S. Ports of Entry through the use of a machine-readable passport or U.S. Permanent Resident Card at Global Entry kiosks located at most major airports. Though intended for frequent international travelers, there is no minimum number of trips necessary to qualify for the programs. To qualify for one of the Trusted Traveler Programs all applicants must voluntarily undergo a thorough background check against criminal, law enforcement, customs, immigration, agriculture and terrorist indices to include biometric fingerprint checks and a personal interview with a CBP officer. Additionally, in October 2011, the Transportation Security Administration launched an expedited screening pilot program called TSA Pre✓™ for U.S. citizens who are members of CBP’s Trusted Traveler Programs.

CBP provides information regarding the Trusted Traveler Programs on the below links that are all found on their website, www.cbp.gov. The following is a brief summary of each program.

GLOBAL ENTRY is a voluntary pilot program that streamlines the international arrival process for pre-approved travelers through use of self-service kiosks located at 20 major U.S. airports. The pilot program is an alternative to regular passport processing lines and currently reduces average wait times by 70 percent. Holders of most of the U.S. visa categories are eligible to participate.

NEXUS is a joint CBP-Canada Border Services Agency program that provides expedited processing for pre-approved, low-risk travelers by U.S. and Canadian officials at dedicated processing lanes at designated northern ports of entry, at NEXUS kiosks at Canadian airports where preclearance is available, and at marine reporting locations. Individuals may qualify if they are a citizen of the U.S. or Canada, permanent residents of the U.S. or Canada, or if they are a citizen of a country other than the U.S. or Canada who plan to temporarily reside lawfully in the U.S. or Canada for the term of their NEXUS membership. NEXUS applicants must go through background checks in both Canada and the United States. A NEXUS radio frequency membership card also fulfills the travel document requirements of the Western Hemisphere Travel Initiative (WHTI) that has required a passport or other secure travel document by all U.S. and Canadian citizens seeking entry or re-entry.

SENTRI, Secure Electronic Network for Travelers Rapid Inspection, provides expedited CBP processing for pre-approved, low-risk travelers entering the U.S. at land ports of entry from Mexico. The SENTRI program was first implemented at Otay Mesa, Calif., in 1995, and has grown to include 16 lanes at the nine largest ports of entry along the U.S.-Mexico border including San Ysidro, Calif., Calexico, Calif., Nogales, Ariz., two crossings in El Paso, Texas, and the Texas ports of Laredo, Hidalgo and Brownsville.

FLUX, the Fast Low Risk Universal Crossing, is a pilot program only for U.S. citizens with a valid U.S. machine-readable passport for participation through the U.S. GLOBAL ENTRY and Dutch Privium programs.

FAST, Free and Secure Trade, offers dedicated lanes and expedited border clearance for importers, carriers and drivers who have passed rigorous risk assessments that include fingerprinting. The program is available on both the northern and southern borders. There are about 80,000 members enrolled. FAST members report saving an average 27 minutes when transporting goods into the U.S., and an average of 18 minutes when entering Canada.

CBP’s Global Online Enrollment System (“GOES”) allows registered users to enter their own applications for Trusted Traveler Programs and approved members to edit their information. For additional information regarding CBP’s Trusted Traveler Programs see: Trusted Traveler Programs – U.S. Customs and Border Protection

The TSA Pre✓™ Pilot Program is currently limited to American and Delta Airlines in a limited number of airports. According to the website information, some passengers could qualify for expedited screening through U.S. airport security checkpoints via designated screening lanes. Additional potential benefits may include: Keeping shoes on; Keeping 3-1-1 compliant bag in carry-on; Leaving laptop in bag; Leaving on light outerwear/jacket; and leaving belt on. For additional information see: TSA PreCheck – Transportation Security Administration

How to avoid airport immigration, TSA screening lines is a post from: Gunster Law Firm