, happy 4th of July

The July 2023 Newsletter

Greetings!

Enjoy the July 4th holiday, and stay safe. The offices of BridgehouseLaw here in Charlotte will be closed for the holiday. We'll be back on Wednesday.

Thank you to everyone who voted in our "20th-anniversary logo" poll. Logo Two was the winner. The winners of the three Amazon gift cards will be notified via email.

Our July newsletter focuses on the following topics:

L-visa and counting time
Waiver of liability
Good news for Commerzbank

Read more in the newsletter below!

Best wishes.

Reinhard von Hennigs &

Your Team at BridgehouseLaw LLP

image by https://www.wheniscalendars.com/when-is-the-first-day-of-summer/

Morning Musings

As you may know, Reinhard von Hennigs has been musing about current events and topics for over three years. The second book has been published and is now available on amazon.com. You can go ahead and order the book here.

In the meantime, do check out the Morning Musing library on YouTube.

L-1 and H-1 Visas Beneficiaries

Can Recapture Time Spent Outside of the US

Certain L-1 and H-1 Visa holders and their dependents may be able to recapture time they spent outside of the United States for work or vacation. Immigration laws stipulate that only the time spent inside the United States counts towards your maximum L-1 or H-1 visa stay. This means that when it’s time to request a visa extension, the beneficiary can also ask full days (full 24-hour periods) spent outside of the U.S. be added back to their total maximum period of stay. If the beneficiary’s recapture request is approved, the beneficiary’s dependents’ maximum period of stay is credited with the recaptured time.

This is not an automatic process when submitting for a visa extension, nor is it guaranteed that USCIS will extend the maximum period of stay with all time the beneficiary has claimed to be outside of the U.S. The beneficiary has the burden of proving any time outside of the U.S. during the valid visa period through independent documentation such as plane tickets, passport stamps, I-94 travel history, communications from travel agents and airlines, etc.

If USCIS determines that the burden of proof regarding the beneficiary’s time outside of the U.S. has not been met, then the recapture request will be denied. USCIS does not request additional evidence for recapture of time requests.

It is likely that many L-1 and H-1 visa holders were outside of the U.S. for substantial lengths of time due to COVID travel restrictions. Suppose you currently hold a valid L-1 or H-1 visa and submit a visa extension application. In that case, you should speak with a BridgehouseLaw immigration attorney regarding the possibility of recapturing time outside the U.S.

Crystal McBride, Law Clerk, BridgehouseLaw Charlotte

The Waiver of Liability

In recent news are the deeply troubling implosion of OceanGate’s Titan submersible and the subsequent death of its five passengers at some point during its 12,500-foot descent to the site of the infamous wreckage of the Titanic.

It is believed that each of the five passengers signed waivers of liability, which begs the question of whether OceanGate can still be held liable for the death of these passengers in spite of the waiver.

Waivers of liability are incredibly common and often are obligatory prior to participating in inherently risky activities. For example, if you were to go skiing, you would likely need to sign a waiver of liability that prohibited you from bringing suit against the ski company for risks inherent in skiing. As such, if you were to fall and break your arm as you descended a ski slope, the liability waiver would likely shield the ski company from liability. If, however, you were skiing down a hill, your rental skis both snapped in half, and you fell and broke your arm, the waiver of liability would unlikely be effective. This is because when you signed the waiver of liability, you were not waiving the right to sue for injuries suffered due to faulty ski equipment, as that is not an inherent risk in the activity in the same way that falling is. Though this example is fairly simple, it illustrates the types of liabilities that a participant in an inherently risky activity can effectively waive.

OceanGate’s waiver of liability mentions that “[a] portion of the operation will be conducted inside an experimental submersible vessel. The experimental submersible vessel has not been approved or certified by any regulatory body and may be constructed of materials not widely used in human-occupied submersibles.”

For a waiver to be effective at shielding a company from liability as a result of an injury, that injury must fall within the inherent risks of the activity, the release form must specify the exact risk the participant assumes, and the damage must not result from an intentional or grossly negligent act of the company. Courts will often reject liability waivers if there is evidence of gross negligence or an undisclosed hazard arises during the activity. Additionally, courts will consider various other factors, such as the nature of the risk, the knowledge and understanding of the injured party, any unequal bargaining power, and public policy considerations when determining the applicability and extent of the waiver of liability.

Whether OceanGate’s waiver of liability is effective hinges on several factors. First, it is critical to determine whether the accident occurred as a result of the gross negligence of OceanGate. A defendant is grossly negligent if they undertake conduct with reckless neglect as to its impact on the life or property of another. Critical to this determination could be a 2018 case between OceanGate and a former employee who raised safety concerns about the company’s submersibles and who was subsequently ignored and fired. Additionally, if OceanGate made statements guaranteeing the safety of the expedition and the submersible before the trip with reckless disregard for the falsity of those statements, it could render the waiver of liability ineffective in shielding the corporation from liability. On the other hand, OceanGate could argue the waiver of liability will effectively protect them because they were not grossly negligent and fully described the risk of the trip – that is, they described the submersible vessel as experimental and said any regulatory body did not approve it.

Tristan Erickson-Cales, Law Clerk, BridgehouseLaw Charlotte

Enforcement Actions against Commerzbank have been terminated

On June 23, 2023, a decade of legal and regulatory scrutiny ended as the U.S. Federal Reserve terminated all three of its enforcement actions against Commerzbank AG, a leading German lender. Commerzbank is a global financial institution with its headquarters in Frankfurt and offices in several different countries including a New York branch in the United States.

Dating as far back as 2012, Commerzbank’s New York branch has been under the close watch of U.S. authorities for sanction and money laundering violations. The United States imposes strict requirements on local branches of foreign banks to operate in compliance with all applicable federal and state laws, rules, and regulations. Nonetheless, several U.S. agencies, including the Department of Justice and the Treasury Department’s Office of Foreign Asset Control, discovered that Commerzbank was facilitating transactions that violated U.S. sanctions against Iran, Cuba, Sudan, Burma, and several targeted individuals. Commerzbank eventually admitted to using wire stripping, a technique in which interbank payment instructions are altered to remove identifying information that might trigger U.S. sanctions filters. This allowed them to conceal millions of dollars in transactions over the years. In 2015, Commerzbank agreed to relinquish $563 million, pay a $79 million fine and enter into a deferred prosecution agreement with the Justice Department for violations of the International Emergency Economic Powers Act and the Bank Secrecy Act.

Ultimately, Commerzbank’s long history of transgressions highlights the importance of powerful financial institutions maintaining effective anti-money laundering compliance programs and preventing other unlawful transactions. Moving forward, the bank will likely implement a more robust compliance program that abides by U.S. standards and flags suspicious activity in its early stages. Commerzbank has already experienced significant growth over the past year due to a combination of strong customer business and higher interest rates. In fact, the bank more than tripled its net profit in the 2022 financial year. Now, free from three substantial U.S. enforcement actions, Commerzbank can continue to build upon this momentum and increase its influence as a leading German lender.

Madison Cone, Law Clerk, BridgehouseLaw Charlotte