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The answers are
only intended to give
you a better
understanding of various aspects
of the law.
New questions are posted regularly,
so
check back often.
Please Note: Nothing in these
questions is intended as nor
shall be construed as a legal advice, guidance or interpretation.
The information provided in these questions is basically
for general educational purposes only and specific questions about
any fact, law, statute or regulation should be directed to the experts
in the area or legislative houses. For
Further Information or clarification to your questions you should
contact us. All your questions will be treated with strict confidentiality.
You may also find answers to your question on our
News, Updates & Articles page.
As each case is different and requires unique treatment. Take
the time to talk to any of our staff and explore all possible options
together. Our staff are always eager and willing to help you.
Schedule a consultation today.
Click on The Below Questions
To Read
the ANSWERS
“How do I know if I have a medical malpractice
case?”
A
bad medical result doesn’t necessarily mean you have experienced
malpractice. Even with the best of care, things can go wrong.
Generally, to win a medical malpractice case, you must have
expert medical testimony that no reasonable health care provider
would have done what yours did. Reasonableness is generally
determined by looking at what is reasonable care in view of the:
Available knowledge; Geographic location where care occurred;
State of medical practices at the time of the illness or injury.
You must also prove through expert testimony that the negligence
of your health care provider was a cause of injury or death. A
doctor can be negligent, for example, and still not be liable,
if the injury or death was caused by some other factor.
 Back
to Questions
“What is a ‘wrongful death’ claim?”
A
"wrongful death" claim is a statutory cause of action that may
be brought on behalf of a surviving spouse, children, and
parents of a decedent to compensate them for the losses they
sustained as a result of the wrongful death of their family
member. The "wrongful" act that resulted in death may have been
intentional, reckless, or negligent as long as it is of the
character that would have permitted the decedent to maintain an
action for injuries had death not resulted.
Back
to Questions
"What types of damages may be recovered in a wrongful death
case?"
Recovery
by parents:
Parents may recover for the loss of companionship and
society of their child as well as for mental anguish caused
by the death of their child. If the decedent was a minor
child, the parents may recover the value of the child's
services from the time of death until the date the child
would have reached the age of majority, less the cost of the
child's support, education, and maintenance during the
period of minority, plus the value of any financial
contributions that the child in reasonable probability would
have made to the parents after the child reached the age of
18. The parents of an adult child may generally recover the
value of future financial contributions that the deceased
child in reasonable probability could have been expected to
make to the parent.
Recovery by spouse:
A surviving spouse may recover damages for loss of
companionship and mental anguish caused by the death of his
or her spouse. The surviving spouse may also recover
financial contributions that he or she would have received
in reasonable probability, as well as the financial value of
intangible services that the deceased spouse would have
rendered in reasonable probability.
Recovery by Child:
A surviving child may recover damages for the loss of
companionship and mental anguish caused by the death of his
or her parent. A minor child of a decedent may also recover
the sum that the decedent would reasonably and probably have
contributed to the maintenance of the child and the value of
the services that the decedent in reasonable probability
would have rendered in training, advising and educating the
child. Adult children may also recover the sum that the
decedent would reasonably and probably have contributed to
the child. Other Damages include: loss of inheritance as
well as punitive damages.
Back
to Questions
“What should I do in case of personal injury
sustained at work place?”
Immediately following an injury on the job, the accident should
be reported to someone in a position of authority such as the
leadsman, foreman, supervisor etc. Failure or delay in reporting
the injury may result in a denial of worker’s compensation
benefits. A late-reported claim may delay benefits until the
insurance company has had an opportunity to investigate the
matter. Within one working day of knowledge of the injury, the
employer shall provide a claim form to the employee who is then
required to file it with the employer. The form, which is known
as a “DWC-1 FORM,” must include information on administrative
assistance available and on procedures to commence proceedings.
This procedure is a change from the previous rule. Now, the
employee must fill out a specific claim form when injured.
Therefore, a verbal report of injury is no longer all that must
be done.
Note importantly too that the employee should report the
accident to his union shop steward or business agent so that he
may be advised of any further steps necessary in the protection
of his rights and benefits.
If
the accident is reported, and medical treatment requested, the
employer will either tell the injured employee which doctor to
see or advise him to see his own doctor. In either event, the
worker’s compensation insurance company is obligated to pay all
medical expenses that are reasonable, necessary and related to
the injury in question.
Back
to Questions
"My mother had a surgery in one of the
hospitals in Brooklyn last month for appendectomy and was
discharged from the hospital 7 days thereafter. 2 days after her
discharge she developed some acute pain at home, which led to a
re-admission into the hospital, where another abdominal problem
was discovered, which was initially not discovered by the
doctors before her previous surgery. On the 3rd day after her
re-admission, she died and my family feels the hospital must
have been negligent by not giving my mother a proper check -
leading to her death. However we are not too sure whether or not
we can sustain a claim for a medical malpractice against the
hospital and need your opinion on what we have to establish in
order to succeed in such a claim?"
Standard of care is important in medical malpractice suits
because to be held liable, a doctor must not only cause injury,
but the injury must result from not following the "standard of
care." A standard of care holds a person of exceptional skill or
knowledge to a duty of acting as would a reasonable and prudent
person possessing the same or similar skills or knowledge under
similar circumstances. In other words, a health care provider's
actions are measured against the standard of care active in the
caregiver's location or similar community.
It
is most important that a plaintiff's medical malpractice lawyer
screen cases and accept only those that are worthwhile. (In some
states, the lawyer must certify that he has reviewed the matter
with a qualified physician who states that the case is
"meritorious.") Often the experienced lawyer can tell if the
case is worthwhile from the first contact with the client. If it
is not, the client should be informed immediately; the legal and
medical systems should not be cluttered with the prosecution of
worthless cases.
True medical malpractice consists of negligent conduct that
causes damage. There may be "malpractice" from a theoretical
point of view, but if the conduct has not caused injury it is
not a matter for the legal system. Sometimes there may be true
"malpractice" but no residual damage. These are not strong
cases. Juries are not all interested in a past history of
damage; they do become interested when a plaintiff can show
permanent injury.
Please note importantly that in any negligence case action,
personal injury is described as any harm caused to a person,
such as a broken bone, a cut, or a bruise; bodily injury. Any
invasion of a personal right, including mental suffering and
false imprisonment. For purposes of workers’ compensation, any
harm (including a worsened preexisting condition) that arises in
the scope of employment.
Personal Injury also, means any injury resulting from libel,
slander, malicious prosecution, or false arrest, any bodily
injury, sickness, disease, or death sustained by any person and
caused by an occurrence for which the state may be held liable.
Hence, if for any reason you suspect an injury has been caused
by negligence of another, you do not need to suffer financially
and or mentally anymore, contact a personal injury attorney in
your area now.
Back
to Questions
"My friend was involved in an automobile accident with the
driver of another vehicle who ran a red line. I was a
passenger in my friend's car and now have a torn shou8lder.
My doctor says that I need surgery. My friend was also hurt.
We both want to sue the other drive. How can we go about
this?"
As a passenger in your friend’s car, you may sue both your
friend and the driver of the other vehicle as well. Although
it sounds as though the other driver was negligent in
running the light, your friend may also have been negligent
in the operation of his car as well. However, this would be
for the court to decide the relative degrees of fault. As a
passenger, you are entitled to obtain a judgment from either
your friend or the other party or both.
Back
to Questions
"I was involved in an automobile accident and have been out
of work since February 2004. Who will pay for my loss wages
from work?"
In New York State, you can recover under the “no-fault” laws
for lost of wages as a result of an automobile accident.
However, to bring suit against the other driver you must
meet the threshold requirement of having sustained a
“serious injury”. Because it appears that you have been out
of work for at least ninety days or more, you would qualify
as having suffered a serious injury. You should consult with
a lawyer and how on commence an action.
Back
to Questions
"I got hurt while operating one of the
machines in my office, the machine fell on top of my leg and I
sustained a fracture on one of my toes. I reported the injury to
my boss who chastised me for being reckless and warned that I be
more careful in future or be fired. He has done nothing about
this and this is the 2nd week into my injury, which still hurt
me badly. I am an alien on a visitor’s visa and do not know if I
can pursue this case under work comp program to be compensated?"
Workers Comp Claim - Compensation laws are designed to ensure
that employees who are injured or disabled on the job are
provided with fixed monetary awards, eliminating the need for
litigation. These laws also provide benefits for dependents of
those workers who are killed because of work-related accidents
or illnesses. Some laws also protect employers and fellow
workers by limiting the amount an injured employee can recover
from an employer and by eliminating the liability of co-workers
in most accidents. State Workers Comp statutes establish this
framework for most employment. Federal statutes are limited to
federal employees or those workers employed in some significant
aspect of interstate commerce.
However, awards are limited to "disability or death" sustained
while in the performance of the employee's duties but not caused
willfully by the employee or by intoxication. The act covers
medical expenses due to the disability and may require the
employee to undergo job retraining. A disabled employee receives
two thirds of his or her normal monthly salary during the
disability and may receive more for permanent physical injuries,
or if he or she has dependents. The act provides compensation
for survivors of employees who are killed. The act is
administered by the Office of Workers’ Compensation Programs.
Back
to Questions
"Who
can obtain a religious worker visa and what procedure should be
adopted?"
The R-1 religious worker visa is a nonimmigrant visa, which
allows foreign nationals in religious occupations to enter into
the U.S. and perform the duties of a religious worker. You must
be a foreign national who, for at least the two years
immediately preceding the time of application for admission,
have been a member of a religious denomination having a bona
fide nonprofit religious organization in the U.S.
To qualify for
R-1 visa, you must be: A Minister of religion; Working in a
professional capacity, either in a religious vocation or
occupation; Other religious worker working in a religious
occupation or in a religious vocation.
As an On R-1
visa holder, you may: Engage in full time study in the U.S.;
Travel freely in and out of the U.S.; Receive payment for
services performed; Apply for Green Card;
Apply for R-2
dependent visa for your spouse and unmarried children below 21
years; or Receive payment for services performed.
Back
to Questions
The H-1C
work visa is a nonimmigrant visa, which allows foreign nationals
to enter into the U.S. to perform temporary services as a
registered nurse in a health professional shortage area as
determined by the U.S. Department of Labor. This category of
work visa was created by the Nursing Relief for Disadvantaged
Areas Act of 1999 by the U.S. Department of Health and Human
Services. It was designed specially for registered nurses who
meet the requirements of section 212(m)(1) of the Immigration
and Nationality Act, and will perform services at a facility (as
defined in section 212(m)(6) of the Act) for which the Secretary
of Labor has determined and certified to the Attorney General.
To qualify
for H-1C nonimmigrant status, the foreign national - Registered
Nurse (RN) must meet the following requirements:
- Obtain a
full and unrestricted license to practice professional nursing
in the country where the foreign national obtained nursing
education, or he/she must have received nursing education in the
U.S.
- Must have
passed an appropriate examination (recognized in regulations
promulgated in consultation with the Secretary of Health and
Human Services) or have a full and unrestricted license under
state law to practice professional nursing in the state of
intended employment and;
- Must be
fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the
nurse to be employed) governing the place of intended employment
to engage in the practice of professional nursing as a
registered nurse immediately upon admission to the U.S. and be
authorized under such laws to be employed by the facility. The
terms and conditions under the H-1C classification are as
follows:
The work
authorization for H-1C nurses is employer-specific, i.e.
it is limited to employment with the approved
employer/petitioner; Again, a change of employer requires a new
H-1C petition; Any employment other than the originally approved
employment cannot begin until a petition for change of
employment (Form I-129, Petition for Nonimmigrant Worker) is
approved by the USCIS; Additionally, if the H-1C nonimmigrant
nurse will work for more than one employer, each employer must
file its own H-1C petition on the foreign national's behalf. And
finally, the H-1C foreign national is not precluded from
applying for Adjustment of Status to Lawful Permanent Residence
if the foreign national is otherwise eligible for Adjustment of
Status.
Back
to Questions
“Is it true that any immigrant who does not first
become a U.S. Citizen will no longer be eligible to receive
benefits like Supplemental Security Income (SSI) from the
Government?”
In 1996 Congress passed a Decision to eliminate Supplemental
Security Income, (S.S.I.,) for most immigrants who entered the
U.S. after August 22 of 1996, and to set a seven year time limit
for others – mainly refugees – receiving the Welfare payment
until they become united states citizens and, although, a
minimum income level necessary for people who are elderly and
disabled to live on was been established by the government, New
York State now, denies that level of assistance to some people
because they are immigrants. The state echoed those restrictions
in a 1998 Law - denying state Aid to anyone ineligible for
Federal Benefits because of immigration status. These
impoverished and disabled immigrants are now reduced to public
assistance grants of $352 a month which are not even enough to
pay for their rent. So far, the ages of the immigrants affected
by this restrictive decision ranges form 67 - 92 years and many
more people will still be affected. Congress reasoned that seven
years is long enough for them to process and obtain U. S.
Citizenship before they can be entitled to any further benefits
from the government. It is therefore advised that all immigrants
in this category should consult with their attorneys for legal
direction on the appropriate steps to take in this regard.
Back
to Questions
“Who are the first preference immigrants and how can I be
qualified for a first preference immigrant’s visa?”
The immigrants who qualify for first preferences employment
based visas are those immigrants who have the highest priority
among all employment based visas and are automatically eligible
to receive their visas first. They do not need to obtain a Labor
certification. They are categorized as:
(a) Immigrants with extraordinary abilities in Science, Arts,
Business and sports. The intending immigrants in this category
are considered to have extraordinary skills if they are
nationally or internationally famous and their fame and
achievement can be documented. Evidence which shows
extraordinary ability includes nationally or internationally
recognized prizes or awards for excellence, membership in
associations, which require fame in a given field and articles
published in scholarly journals. This category of immigrants can
apply to obtain their green card without any letter from
prospective employer or job offer provided they have
documentation of their extraordinary abilities.
(b) Outstanding Professors, Researchers, and Scholars. This
category of immigrants also qualifies for a first preference
visas if the intending immigrant have a documented credential as
an outstanding professor or researcher or a scholar. The
outstanding skill here, can be proved by showing that such
individual is internationally recognized in his or her field and
have a minimum of three years of experience teaching or
researching in the field or will be entering the U. S. on a
tenure or tenure track as teacher or researcher at a University
or institute of education. Labor certification is not required. (c) Multinational Executives and managers. This
category is similar to the L-1 temporary visa for intra company
transferees. To qualify in this category, the intending
immigrant should have been employed outside the U. S. for at
least one of the preceding 3 years in a managerial or executive
capacity or if the person is already working in the U. S., he or
she must have been employed on such a position for one of the
three years preceding entry to the U. S. A letter from a
prospective employer and other documentation is necessary, but a
labor certification is not required.
Back
to Questions
“How will successful entrants for the 2007 Diversity Visa
Lottery be selected?”
At
the Kentucky Consular Center, all entries received from each
region will be individually numbered. After the end of the
registration period, a computer will randomly select entries
from among all the entries received for each geographic region.
Within each region, the first entry randomly selected will be
the first case registered; the second entry selected the second
registration, etc. All entries received during the registration
period will have an equal chance of being selected within each
region. When an entry has been selected, the applicant will be
sent a notification letter by the Kentucky Consular Center,
which will provide visa application instructions. The Kentucky
Consular Center will continue to process the case until those
who are selected are instructed to appear for visa interviews at
a U.S. consular office, or until those able to do so apply at a
USCIS office in the United States for change of status.
Back
to Questions
“If my Visa expires while I am in the United
States, what does this mean to my status and how can I find out
how long I am authorized to stay in the U.S.?”
A
visa must be valid at the time a traveler seeks admission to the
U.S., but the expiration date of the visa (validity
period/length of time the visa can be used) has no relation to
the length of time a temporary visitor may be authorized by the
Department of Homeland Security to remain in the United States.
Persons holding visas valid for multiple entries may make
repeated trips to the U.S., for travel for the same purpose, as
long as the visa has not expired, and the traveler has done
nothing to become ineligible to enter the U.S., at port of
entry. At the port of entry, and upon entering the U.S., the
Department of Homeland Security, US immigration inspector,
provides you a small white card, Form I-94, Arrival-Departure
Record in your passport.
Visa Waiver Program travelers receive Form 1-94W. On this form,
the U.S. immigration inspector records either a date or "D/S"
(duration of status). If your I-94 contains a specific date that
is the date by which you must leave the United States. Your Form
I-94 or I-94W is a very important document to keep in your
passport, since it shows your permission to be in the U.S.
However, if by any reason you know you may be overstaying the
duration of your status, you must consult with your attorney for
a legal advise on the procedure to adopt in commencing an
application for adjustment of status for you – and note that it
is most advisable to do this before the expiration of the
duration of your status except when disallowed by some special
circumstances which must have to be proved.
Back
to Questions
“What family members should I include on my DV 2007 Entry Form?”
On
your entry you must list your spouse, which is husband or wife,
and all unmarried children under 21 years of age, with the
exception of children who are already U.S. citizens or Legal
Permanent Residents. You must list your spouse even if you are
currently separated from him/her, unless you are legally
separated (i.e. there is a written agreement recognized by a
court or a court order.) If you are legally separated or
divorced, you do not need to list your former spouse. You must
list ALL your children who are unmarried and under 21 years of
age, whether they are your natural children, your spouse's
children, or children you have formally adopted in accordance
with the laws of your country, unless such child is already a
U.S. citizen or Legal Permanent Resident. List all children
under 21 years of age even if they no longer reside with you or
you do not intend for them to immigrate under the DV program.
The fact that you have listed family members on your entry does
not mean that they later must travel with you. They may choose
to remain behind. However, if you include an eligible dependent
on your visa application forms that you failed to include on
your original entry, your case will be disqualified. (This only
applies to persons who were dependents at the time the original
application was submitted, not those acquired at a later date.)
Back
to Questions
ADJUSTMENT OF STATUS CASES
"I came to the United States in 1999 and I am presently out
of status because I failed to file for relevant immigration
applications on time. I am afraid of returning to my country
due to the present political and economic problems facing my
country as a result of the new change in government. What is
my right in the United States with my present immigration
status? Can I file for asylum or are there other alternative
immigration applications favorable to me to enable me to
stay in the United States?"
The general Rule is that you must file for Political Asylum
within one (1) year from the time you entered the United
States unless you can demonstrate “extraordinary
circumstances” which prohibited you from filling on time:
such as illness etc. A change in Government may also be
considered an “extraordinary circumstance” which would allow
you to file your application for asylum outside the one (1)
year period. However, you should consult an immigration
Attorney to determine whether changed conditions in your
home country, short of a civil war, qualifies as a changed
circumstance. If not, you can always make an Application for
Withholding of Removal to your home country. This is a more
limited Relief than Asylum and consequently an immigration
attorney should be consulted for instructions.
Back
to Questions
"I was
married under the native law and custom in Africa with two
children from the native marriage. But, I came alone to the
United States in 1992 where I got married again and equally
have two children from the present marriage. Can I file for
Green Card and am I qualified to bring my children in Africa
over here to stay with me in the U.S.?"
The answer would depend on whether your current wife is a
Lawful permanent resident or a United States Citizen. Only a
spouse who is a U.S. Citizen or who has a Green Card can
file what is known as immediate relative petition to accord
you permanent residence status. Generally, the Bureau of
Citizenship and Immigration Services (BCIS) will acknowledge
the validity of a marriage if it is legally valid in the
country where that marriage is performed. Therefore, it
would depend on what country in Africa your first marriage
took place. If the marriage is performed as result of tribal
ritual but not recognized by the registrar of that country
(not registered in court), the first marriage is not valid
for immigration purposes. Your
children, however, would be considered legitimate if your
marriage appears on the birth certificate. Again, because
you may be required to present evidence from your home
country regarding the tribal rituals involved in the
traditional marriage in your country, it is strongly
suggested you consult an immigration Attorney.
Back
to Questions
"I came
to the United States with a visitor's visa. I am presently
out of status as I have overstayed my visa. How can I
legalize my status and which immigration applications can I
file to get a Green Card or permanent residents?"
The Process of obtaining a Green Card in the United States
is called “Adjustment of Status. Whether you can adjust in
the United States and the Forms which are necessary will
depend on whether you are seeking to adjust your immigration
status based on a Bona Fide marriage to a United States
Citizen, immediate relative or other family member or
through an offer of employment called ‘Labor Certification’.
In addition, whether you can adjust in the United States
will also depend on when and how you entered the country.
You also need to have an immigrant visa immediately
available.
In either case however, for you to obtain a Green Card in the
U.S., you will need to file an application for adjustment of
Status or I-485 Application. Let’s say for example that you
entered the U. S. with inspection, using a visitor’s visa,
but you have overstayed and that you are now married to a
United States Citizen. The Form that you would file is
called an I-130 – ‘Immediate Relative Petition’ accompanied
by an I-485 Application. It is employment based; your
prospective employer would have to file a Form I-140
Petition. Because the circumstances under which you can file
the I-140 Application varies, you should consult an
immigration Attorney to find out whether you qualify for
adjustment of Status and which procedure is best for your
situation.
You may be qualified to obtain Residence in the United States
through an Immigration Judge if you are willing to place
yourself in removal or deportation proceedings. An
immigration judge can cancel your deportation if you
establish that you have lived in the United States for Ten
(10) years consecutive years; and is a person of good moral
character and if your deportation would result in an
exceptional and extremely unusual hardship to a spouse or
child who is a United States citizen, you will definitely
not be deported. Here, the fact that both your children are
in the United States would support an application for
cancellation of any removal order, but you will need to
document the children’s asthma with doctor’s letters and
other medical records.
Back
to Questions
"I came to the United States and got married. I am divorced
but have a Green Card. How can I file for citizenship and
how long do I have to wait for this?"
The general rule was that you had to wait for five (5) years
from the time that you acquired your Green Card or Permanent
Residence before becoming eligible to apply for U.S.
citizenship if you are divorced from your spouse. Recently
however, the BCIS allowed applicants to file three months or
ninety (90) days before the five (5) years eligibility in
view of the current backlogs confronting the agency. Had you
still been married to a United States citizen spouse, the
requirement is three (3) years less ninety days from the
time that you obtained your Permanent Residence.
Back
to Questions
"I came into the U.S. with false identity (somebody's
passport). Presently I have my own passport which has no
visa or documentation of my arrival. Unfortunately, I became
sick here, as a result of which I was treated in the
hospital where an unsuccessful surgery was conducted on me
at the end of which I became paralyzed due to the negligence
of the doctor who treated me at the hospital. Do I have any
legal rights to take legal actions against the hospital or
the doctor--and be compensated considering my illegal status
in the U.S."
Yes, but your illegal status has nothing to do with the
Doctor’s negligence. The same is also true for the Hospital.
However, you need to show damages, e.g. showing how you were
hurt as a result of the negligent act of the Doctor. Once
sufficient evidence of the negligence is established, you
have a good cause of action and can make a claim
irrespective of your illegal status.
Back
to Questions
"My
visa expired and I have been in the United States illegally
now for the past five years.
I am due
to return home but I am afraid because my country is being
rampaged by civil war in the past two years. What can I do?"
You may be entitled to temporary protected status (“TPS”) in
the Unites States. If your country is not included in the
“TPS” program, your only alternative would be to file for
political asylum. The general Rule is that you need to file
for political asylum within one year from the date you last
entered the United States if you fear persecution in your
home country on account of race, religion, nationality,
membership in a particular Social group or political
opinion. You can also qualify for asylum if you were
persecuted on one of these five grounds in the past. The
exception to the one-year rule is that you were unable to
file timely because of “extraordinary circumstances”. If,
for example the civil war in your home country is a recent
event, you may qualify for the exception under “changed
circumstances”. In any event, you might qualify for a relief
called withholding of removal. Similar to TPS, withholding
allows you to remain in the United States in one (1) year
increments if the war in your home country persists.
Back
to Questions
"I have been in the U.S. since 2003 with a visitor's visa
which is going to expire next month. Is it possible for me
to file and obtain a work permit, driver's license and
Social Security Number?"
No, as a visitor you do not have a right to work in the
United states and may be deported. The Social Security
Administration like the Department of Motor Vehicle in most
States will request verification of your immigration status
before issuing you a social Security number. If you are
working illegally, off the books without your employer
deducting taxes, you can obtain a Tax Identification Number
or “ITIN” by which to pay taxes as a self-employed. You will
also need to file a Schedule C as someone who is
self-employed.
Back
to Questions
Our client-base is as diverse as their legal
needs. We represent large corporations, banking institutes,
small businesses and individuals. Our attention to detail and
passion for the law has separated us from the pack and has made
our firm a force to be reckoned with in the legal world.
Looking to the future, we strive to continue our tradition of
aggressive, competent legal representation. We view it as our
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