Volume 1 Issue 2

October 2013

Immigration Insiders Print Edition

Weve Created More Time For You
Special points of interest:
Weve Created More Time For You Can I Renew My Green Card? Estate Planning for Noncitizen Spouses Spooky No Bake Cheesecake

ur clients have told us that it can be stressful

building was closed on weekends and we didnt offer early morning or evening hours. We heard the feedback and weve responded by moving to offices that permit flexible office hours. As always, both Skype and in-person appointments are available during the traditional 9 to 5. Plus, we are thrilled to announce that early morning and weekend office hours are also available at the new offices. Thank you to everyone who provided feedback. We appreciate it. If you have other suggestions as to how The Whitt Firm team can serve you or youd like to receive personalized immigration legal advice, please feel free to contact us. Call 214-431-5237 or email info@whittfirm.com.

to take time off work or hire a babysitter to meet with an attorney. Many of our international clients are scattered throughout the globe, in a myriad of different time zones. Its normal to need to communicate during nontraditional business hours. A 9 to 5 offering sometimes just doesnt fit comfortably and our old offices didnt allow for flexible scheduling. In fact, the

The new offices are located on the Tollway (like our Frisco offices). Well be closer to clients in both Plano and Dallas. Both Skype and in-person office visits are available at your convenience, including normal offices hours, early mornings and weekends. To schedule an appointment, call 214-431-5237 or email info@whittfirm.com

To make it convenient for you, well put all of our contact information in one place:

This is the new address: 5601 Democracy Dr., Suite 200, Plano, TX 75024 Heres our phone number: 214-431-5237 (Its the same.) Heres our email address: info@whittfirm.com (Its the same.) Heres our website: www.WhittFirm.com (Its the same.)

2013 Whitt Law Firm, PC - All rights reserved

Immigration Insiders Print Edition

Can I Renew My Green Card?

A valid green card is necessary to ensure your ability to live, work and travel in the U.S. You should renew your green card if it is either expired or will expire in the next six months. However, you should be aware that the Department of Homeland Security uses the renewal process as an opportunity to review your record for anything that might jeopardize your lawful permanent resident (LPR) status.

Are you maintaining your residence in the U.S.?

If youve abandoned your LPR status, you cannot renew your green card. Your LPR status may be considered abandoned if:

Youve been outside the U.S. for more than 180 days You failed to file U.S. tax returns You took a job outside the U.S. for a foreign employer Youve had frequent, extended absences from the U.S.

There is a rumor that you can maintain your LPR status just by visiting the U.S. for one week every six months. Thats not the law.

Are you a conditional resident?

Conditional green cards are only valid for two years. If you have a conditional green card that you received through marriage or an investment, you must file a case to remove the conditional and receive a standard 10-year green card.

Are you deportable?

If youve committed certain criminal offenses, you may put yourself at risk of being removed from the U.S. by renewing your green card. DHS will review your criminal record during the renewal process. If any of these five grounds of removability are present, you could wind up in immigration court:

Crimes of moral turpitude (committed within 5 years of your admission) Multiple criminal convictions Aggravated felonies High speed flight Failure to register as a sex offender Drug-related offenses

If you are placed into removal proceedings, you will have the opportunity to present a defense to the Immigration Judge. Depending on the seriousness of the crime and the number of years youve lived in the U.S., you might be able to retain your LPR status. If any of the above situations apply to you, consult with an immigration attorney before you apply to renew your green card.

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2013 Whitt Law Firm, PC - All rights reserved

Volume 1 Issue 2

October 2013

Estate Planning for Noncitizen Spouses

by Christian S. Kelso, Esq.
'Estate planning' is a legal term which describes the mechanism by which a person sets out, during life, what they want to happen to their property once they die. Taxes play a major factor in estate planning. The US implements an exceptionally complex transfer tax system, which is composed of three separate federal taxes. These include (i) the estate tax, which applies to transfers at or by reason of a person's death, (ii) the gift tax, which applies to transfers made during life, and (iii) the generation-skipping transfer tax, which applies to transfers made between persons assigned to different generational levels under applicable rules. Not only are resident aliens generally subject to these taxes, but they are also subject to special rules which make the transfer tax system particularly difficult for them to navigate. Transfer taxes can be a particularly hard pill to swallow because their rates are so high. The estate tax, for example, is a forty percent tax on the value of a decedent's gross estate, less certain deductions and after certain credits. Surviving family members can face tough choices as they decide how to pay the tax. This is particularly problematic in situations where a family's assets are primarily illiquid assets, such as real estate and small businesses. All too often, after spending a lifetime building a family business, the surviving spouse must sell the business simply to pay for the estate tax. Fortunately, this tragic consequence can be significantly mitigated, if not avoided entirely through proper tax and estate planning. One key tool employed by estate planners on a regular basis is the marital deduction granted under 2056 of the Internal Revenue Code. The general rule of this section provides a deduction from estate tax for bequests from one spouse to another. In other words, if a wife inherits all of her husband's estate, generally, no tax would be due on the husband's estate because of the deduction. Thus, in the small business scenario, a surviving spouse would not need to sell the business because no tax would be due until his or her subsequent death. Unfortunately for noncitizens, however, 2056(d) provides that the marital deduction is not allowed in the case of a noncitizen spouse unless additional, and very strict, requirements are met. Thus, in the example above, if the surviving spouse were not a US citizen, estate tax would apply to the predeceasing spouse's estate, thereby requiring the sale of the business to pay the tax. Fortunately, an exception to the exception provides some relief because deduction is allowed there a noncitizen spouse inherits through a "Qualified Domestic Trust," also known as a QDOT. QDOT planning is the primary way that noncitizen spouses meet the additional requirements mentioned above with regard to the marital deduction. The purpose of a Christian S. Kelso, Esq. QDOT is to defer tax on the estate of the predeceasing spouse until the death of the second spouse. As such, QDOT's can be a very effective tool in reducing the impact of estate taxes. But they are not without their restrictions. Stringent requirements must be met before a trust will qualify as a QDOT. Generally, these requirements are designed to prevent a noncitizen spouse from returning to his or her home country with all the predeceasing spouse's assets and thereby avoiding the estate tax entirely. In order to qualify as a QDOT, the trust must require that at least one trustee be an individual who is a U.S. citizen or a domestic corporation. Also, the trust must require that no distribution from a QDOT be made without the approval of the U.S. trustee. In addition, the trust must provide that no distribution (other than income) may be made from the trust unless a U.S. trustee has the right to withhold from such distribution the related QDOT tax. Continued on page 4. . .

Page 3

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The Whitt Law Firm, P.C.

Estate Planning for Noncitizen Spouses Cont.

Finally, the predeceasing spouse's executor must make an election to treat the trust as a QDOT. The election must be made on the federal estate tax return, in the form and manner as set forth on the return, including applicable instructions. Once made, the election is irrevocable. With some narrow exceptions, the election to treat a trust as a QDOT must be made on the last federal estate tax return filed before the due date (including extensions of time to file actually granted) of the return, and in no case may the election be made on any return filed more than one year after the time prescribed by law (including extensions) for filing such return. These are just a few of the regulations applicable to QDOT's. Many more govern their establishment, administration and termination. In the case of 'Large QDOT's' (generally those holding more than $2mm in value at the time of the predeceasing spouse's death), still further regulation is imposed. Rules governing the taxation applicable to noncitizen spouses and their families are highly technical and complex. They cause minute differences in

seemingly innocuous details to bring about vastly divergent consequences. In addition to the statutory and regulatory provisions, treaties can also have a significant impact on the tax effect of a given scenario. Persons seeking advice in this specialized area of law are well-advised to seek the counsel of professionals who are experienced in the area and have access to the proper guidance. Although no two cases are alike, many of the issues surrounding transfer taxes and noncitizen spouses can be addressed with proper planning. Congress and the various regulators have provided

powerful tools, but it is the taxpayers' responsibility to use them.

About the Author

Christian S. Kelso, Esq. is of counsel at Malouf, Lynch, Jackson & Swinson, P.C. He practices primarily in the areas of estate and tax planning. His practice also includes general, corporate transactional matters, elder law, probate and guardianship. If you have a comment or questions regarding this article, please contact Christian at ckelso@mljs.net.

Just for fun Spooky No Bake Cheesecake

Its scary how good this dessert is. The combination of creamy filling and crunchy, ganache covered crust is addictive.
Ingredients: For the crust Vegetable oil, cooking spray or coconut oil 18 ounces chocolate wafers, finely ground (4 1/2 cups) (I use chocolate Teddy Grahams) 1/4 cup plus 2 tablespoons sugar 6 ounces (1 1/2 sticks) unsalted butter, melted 1 teaspoon coarse salt For the ganache 4 ounces bittersweet chocolate (preferably 61 percent), coarsely chopped (I recommend Ghirardelli 60% Cacao Bittersweet Chocolate Baking Bars) 1/2 cup heavy cream For the filling 32 ounces cream cheese, softened 1 1/2 cups sugar (I use Truvia) 1/4 teaspoon coarse salt Juice of three fresh lemons

1 1/2 cups heavy cream, cold

Were on the web! www.whittfirm.com

5601 Democracy Dr. Suite 200, Plano, TX 75024 Phone: 214-431-5237 Fax: 555-555-5555 E-mail: info@whittfirm.com.

Start by making the crustUse a food processor to grind your wafers, then place the pieces in a mixing bowl. Stir in sugar, melted butter and salt. Spread a thin coating of vegetable oil, cooking spray or coconut oil in a springform pan. Using your hands, press the crust mixture into the bottom of the pan and flatten. Place in the freezer. Prepare the ganache Use a serrated knife to coarsely chop the chocolate bars and place them in a mixing bowl. Place the cream in a small saucepan and bring it just to a simmer. Pour over the chocolate and lit it stand for about five minutes. Whisk

the cream into the chocolate until smooth. Save four tablespoons of the ganache for decorating, and pour the rest into the springform pan. Use a spatula to spread it into a smooth layer. Return pan to the freezer. Make the filling Beat the cream cheese with a hand or stand mixer for about three minutes on medium speed. Reduce the speed to low and slowly add the sugar, salt and lemon juice. Fold rest of the cream into the mixture, then pour the filling into the crust. Decorate Drizzle remaining ganache over the cheesecake in spiral pattern. Starting at center of the cheesecake, pull a toothpick through lines from center of cheesecake to outside edge to resemble a spider's web. Freeze four hours or overnight.

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