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9191 Broadway
Merrillville, IN, 46410
United States

219-769-1313

Burke Costanza & Carberry LLP your smart choice for lawyers in Northwest Indiana. Our full-service law firm has offices in Merrillville and Valparaiso Indiana as well as one in Chicago Illinois. At BCC, our lawyers pride themselves on being able to provide a wide range of legal services to our clients, who benefit from the depth and experience we provide from top to bottom.

The main practice groups at Burke Costanza & Carberry LLP are: Alternative Dispute Resolution, Commercial Services, Civil Litigation, and Business and Personal Services.

Our attorneys represent businesses and government entities in the following areas: Business Planning, Commercial Law, Construction, Labor & Employment, Governmental Entities, Healthcare, Labor, Pension Profit-sharing & Employee Benefits, Real Estate, Taxation, and Worker's Compensation.

Our lawyers also represent individuals in matters such as Estate Planning, Wills and Trusts, Immigration, Family Law, Probate Administration, Real Estate, and Taxation.

Burke Costanza & Carberry LLP is a well-rounded firm with strong roots in Northwest Indiana that is focused primarily on our lawyers providing clients with the highest quality legal service in a broad range of practice areas.

Business & Personal Services Blog

Minor Children Do Not Decide When To Exercise Parenting Time

Courtney C. Smith

Quasi-Emancipation Overruled by Indiana Court of Appeals

Summary

It is common in family law for parents to see their child in his or her senior year of high school is as an adult.  It is also common for these children to have very active lives in which it is difficult to exercise parenting time with the non-custodial parent, but it is the role of the parents to ensure that the child continues with the visits.  Parents cannot allow children to dictate their parenting time.  The Courts will not allow it either.

Details

The Indiana Court of Appeals recently found that the Lake County trial court overstepped its authority when it allowed a minor child to determine what was in his best interests regarding parenting time and participation in school, extracurricular, and religious activities.   The trial court does not have the authority to allow unemancipated minors to make their “own decisions regarding parenting time and related issues.” Moell at § 19. 

While true that the trial “court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child,” here the Court of Appeals found that the trial court “removed [the minor child] from the care and control of his parents.” Moell at § 15.  The Court of Appeals was troubled by the trial court essentially giving a minor child carte blanche in his decision making regardless of his age or maturity while the parents were still obligated to financially support the minor child.  Moell at § 15. The minor child did not live on his own, nor did he have employment to support himself.

Indiana Code § 31-16-6-6(a) finds that a child is emancipated upon his nineteenth birthday by operation of statute.  However, a child can become emancipated when he is at least eighteen years old and has not attended a secondary school or postsecondary school for the last four months and has the capability to support himself financially through employment.  Alternatively, a child may become emancipated before age nineteen if the child “(1) is on active duty in the United States Armed Forces; (2) has married; or (3) is not under the care or control of: (A) either parent; or (B) an individual agency approved by the court.

Therefore, the trial court order allowed the minor child to circumvent the Indiana Parenting Time Guidelines (IPG).  The IPG specifically address in section I(E)(3) that if a “child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time.  In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.”[1]  Further, by reasoning that the minor child would be an adult at eighteen years old, the trial court failed to show how he would qualify for emancipation.  Moell at ¶ 18.

[1] Italicized for emphasis.  Comment 1 under Indiana Parenting Time Guideline Section II(E) states: The rearing of a teenager requires parents to make decisions about what their teen should be allowed to do, when, and with whom….  If parents are not able to agree, the teenager, who very much wants freedom from adult authority, should never be used as the “tie breaker.” 

Estrada Successfully Obtains Approval of an I-601A Waiver for Undocumented Client

Alfredo Estrada

Alfredo Estrada was successful in obtaining approval from USCIS regarding an I-601A Provisional Waiver Application on behalf of his undocumented client. The I-601A Waiver (Perdon) allows individuals to seek a waiver for the 3 and 10 year inadmissibility bars which attach upon departure of the U.S. because of the immigrants entering without inspection or overstaying their visa. Within his brief in support of the I-601A Application, Estrada was able to demonstrate that the denial of his client’s I-601A Application and subsequent removal would result in extreme hardship to a U.S. Citizen relative. Estrada focused his brief in support of the I-601A Application on the factors detailed in the December 2016 USCIS policy guidance memorandum which clarifies the adjudication of I-601A Applications.

Estrada attended the American Immigration Lawyers Association (AILA) 2017 Spring Conference in Washington D.C. The AILA 2017 Spring Conference focused on the practice of immigration law under the newly elected administration, a legislative update, and speakers from the Department of Homeland Security (DHS), ICE, U.S. Customs and Border Patrol (CBP) and EOIR. One topic of particular concern is OCC’s memo detailing OCC’s non-cooperation in administratively closing removal proceedings despite a potential I-601A Provisional Waiver Application. This will result in the petitioner having to motion the court to administratively close proceedings without the support of OCC. Estrada was the sole Indiana attorney to attend the AILA 2017 Spring Conference in Washington D.C.

Alfredo Estrada is admitted in to the United States Immigration Court. He is a former steelworker, a life-long resident of Northwest Indiana and a Magna Cum Laude graduate of Valparaiso University School of Law.  His practice focuses on immigration, municipal defense, civil litigation, and business law.

 

Timing is Crucial When Hiring Foreign Talent: The Time is Now

Dana Rifai

The H-1B cap season is upon us.  USCIS will begin accepting H-1B petitions for temporary work status on April 1, 2017 for the 2018 fiscal year.  This visa category is available for workers wishing to perform services in a specialty occupation on a temporary basis.  A specialty occupation most often requires a bachelor’s or higher degree.  The H-1B petition must be filed by the employer.  Employers wishing to apply for foreign employee candidates this fiscal year should start the process now.

The H-1B cap allots for an annual numerical limit of 65,000 visas for each fiscal year.  An additional 20,000 visas are available for petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher.  H-1B petitions for beneficiaries who shall be employed at an institution of higher education, or its affiliated nonprofit entities, a nonprofit research organization, or a governmental research organization are not subject to the numerical cap. The spouse and unmarried children under 21 years of an H-1B beneficiary may obtain H-4 nonimmigrant status and are not subject to the cap. The cap further does not include H-1B workers already counted against the cap, workers requesting extensions of stay or a change of the sponsoring employer. Due to the extremely high demand of the H-1B visa classification, the cap will likely be consumed within the first week of the USCIS open filing date.

As part of the process, the employer must make certain attestations related to the foreign national’s employment.  Such attestations provide that the employer will pay the beneficiary a prevailing wage, which is no less than the wage paid to similarly qualified workers in the geographic area of employment. Employer attestations are made on a certification of a labor condition application with the Department of Labor. The certified labor condition application must be enclosed with the H-1B petition.

This popular classification is used commonly by U.S. employers seeking foreign professionals in various fields of discipline. For further information related to the H-1B process, please contact Dana Rifai.

A Pathway to Legal Status Through A Demonstration of Extreme Hardship

Alfredo Estrada

On December 5, 2016 a USCIS policy guidance went into effect which clarifies the adjudication of certain waiver requests that require USCIS to determine claims of extreme hardship to qualifying relatives. This particularly affects the I-601A, Application for Provisional Unlawful Presence Waiver. The I-601A Waiver (Perdon) allows some individuals to seek a waiver for the 3 and 10 year inadmissibility bars which attach upon departure of the U.S. because of the immigrants entering without inspection or overstaying their visa.

Admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. Several statutory provisions authorize discretionary waivers of particular inadmissibility grounds in cases where the applicant demonstrates that refusal of admission “would result in extreme hardship” to one or more designated relatives, such as a specified U.S. citizen or lawful permanent resident family members.

The predominant theme of the December 5, 2016 policy guidance is that adjudicators are reminded that the hardship factors must be considered in the aggregate and that no single hardship, taken in isolation, needs to rise to level of extreme. This principle is already set forth in administrative appeal decisions and codified. However, emphasizing it in the guidance may reassure applicants to set forth all possible factors, if taken together, they add to extreme hardship. One observation of note is the five (5) significant factors likely to support finding of extreme hardship, in the policy guidance. One, which will apply to many households, is a separation would result in the qualifying relative undertaking a due-role primary caretaker and possibly income-earner for the couple’s children or otherwise taking on significant parental or other caregiving responsibilities.

For more information on obtaining legal status, please don’t hesitate to contact Alfredo Estrada of Burke Costanza & Carberry LLP.

Alfredo Estrada is a former steelworker and a life-long resident of Northwest Indiana. He is a Magna Cum Laude graduate of Valparaiso University School of Law.  His practice focuses on immigration, municipal law & defense, and civil litigation.