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January 18, 2019 by Rebecca Esmi

Fiduciary — does this apply to you?

Many of us mistakenly believe the term “fiduciary” only pertains to certain financial advisors, but this misconception could lead to grave legal consequences because the term describes a number of important roles in which an individual (or corporation) has powers and duties pertaining to the property — and even the person — of another.

A definition of “fiduciary” includes those who administer another’s property such as trustees, personal representatives of an estate (executors and administrators), guardians, conservators, partners, agents and attorneys-in-fact, corporate officers, or “any other person, trust or estate” serving in a fiduciary capacity. See Uniform Fiduciaries Act (N.J.S.A. 3B:14-53(b). A fiduciary is held to a high legal standard in that he or she must put the interests of the “other” before his or her own. Breaching these duties subjects a fiduciary to civil and even criminal claims, depending upon the severity of the acts and/or omissions.

A prudent course of action prior to accepting a fiduciary position may be to seek legal counsel, with the watch-word being “prior”. However, prudence also suggests seeking legal counsel is advisable even after accepting such an appointment, so that you can be sure you are meeting your duties and obligations.

April 2, 2014 by Rebecca Esmi

Two year rule waiver option: Hardship

Foreign national physicians in the United States who hold a J-1 visa are required to leave for two years prior to returning. This can be a wrenching prospect for those who have married and put down roots in the United States. There is relief offered by “waiver” by which this requirement can be waived. One such waiver option is based upon the hardship the 2-year return would cause to the physician’s U.S. citizen or lawful permanent resident family members.

The facts of each physician’s case are unique to him or her, and must be examined carefully to include:

The physician’s home country

The physician’s family members and their status (citizen or lawful permanent resident)

Country conditions that will prompt the hardship

The type of hardship(s) that will be caused, such as medical, safety, social, educational, professional, and/or other

Evidence and proofs of the hardship(s)

For physicians with U.S. citizen or lawful permanent resident family members, this option should be carefully considered as a valuable means to apply for a waiver of the two-year rule.

August 16, 2013 by Rebecca Esmi

OFAC General License D: EARs, ECCNs, and other data-designations.

To be exportable under OFAC General License D, software, hardware, and services must bear a specific categorization based upon the type of device, technology, and purpose. Specifically, the designation must be either: (1) EAR99 pursuant to Export Administration Regulation or export control classification number (“ECCN”) 5D992.c by the U.S. Department of Commerce pursuant to its Commerce Control List detailed on supplement No. 1. Additionally, the Annex to General License D details EAR and ECCN designations by eleven categories.

For the uninitiated, EAR and ECCN nomenclature may be quite perplexing, but they are simply ways to categorize exportable items according to degree of risk. For example, items related to ballistics would be high-risk, so must be exported with great care to ensure the items do not fall into the hands of the wrong parties. Alternately, items may be so ubiquitous and “mass market” that it makes little sense to regulate their export since they are found all over the world readily. EAR99, for example, indicates that the items are “NLR” – or no license required. But be forewarned: this doesn’t mean the exporter needs no license! It simply means there is one final check required. This last remaining check is to verify the receiving country is not on the “bad boy” list of countries that give rise to an export or other license requirement.

Iran previously was on this “bad boy” list. But recently, effective with General License D, exports to Iran of software, hardware, and services related to “personal communications” for personal use is NLR — so long as each item is designated EAR99 or ECCN 5D922.c or as designated on the Annex to the General License D. To illustrate, information on Apple’s public website provides ECCNs for its iPhone 5 as 5A992.c. Since Mobile Phones are authorized for export on the Annex to General License D and specifically those categorized as 5A992.c, then an iPhone 5 may be exported to Iran for persona use under General License D.