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1
Dec
2021

Six Paths to Legal Immigration Status Without Staying in an Abusive Relationship

Written by: Meghan Phillips

Six Paths to Legal Immigration Status Without Staying in an Abusive Relationship

A topic that sadly affects many immigrants is abusive relationships or domestic violence. One out of four women and one out of nine men in the United States sadly suffer from this issue. Immigrant women and men are not an exception, but their non-citizen status can make it difficult to leave an abusive relationship. Sometimes an abuser might even use a non-citizen’s lack of status to threaten to deport them, make them afraid to call the authorities or medical services for help or force them to stay in the relationship. 

The purpose of this post is to tell you that no one should have to put up with violence or abuse and that there are six ways a non-citizen can become or stay a legal permanent resident, sometimes also called a green card holder without staying in an abusive relationship. 

(1) The first way is called a VAWA petition. VAWA stands for the Violence Against Women Act, but it is the law which states that immigrants, regardless of their gender, can apply for legal permanent residency if their U.S. citizen or legal permanent resident spouse or parent has abused them. It also allows non-citizen parents to apply if their U.S. citizen child has abused them. In other words, most of the time, an immigrant with a U.S. citizen or legal permanent resident spouse or parent or a U.S. citizen child must depend on that person to file a petition for them. This eliminates the dependency on the abusive spouse, parent, or child.

(2) The second path is called an I-751 waiver. This is for someone whose U.S. citizen or a legal permanent resident spouse already petitioned for their green card, but they were issued a temporary or conditional green card. Normally when that happens, after two years, you apply to have the conditions removed and to be issued the ten-year green card by showing you are still in a good-faith relationship. In cases of abuse, the I-751 waiver says you do not need the support of your abuser to have the conditions removed. Instead, you can show that you entered the relationship in good faith, but your spouse was abusive.

(3) The third way is called a U visa. U visas are for immigrant victims of violent crimes such as domestic violence or sexual abuse, but perhaps the abuser did not have any legal immigration status either. If you are able to prove that you were the victim of a violent crime in the United States and you were helpful to U.S. lawful enforcement in investigating or prosecuting the abuser, you and certain qualifying family members can be issued a U visa. After having the U visa for three years, you can then apply for a legal permanent resident.

(4) The fourth option is similar to the third and is called a T visa. T visas are for victims of human trafficking, which is a form of modern-day slavery in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex. Like with the U visa, the immigration status of the trafficker does not matter, but victims must comply with reasonable requests to assist law enforcement with investigating or prosecuting their traffickers unless they are a minor or too traumatized to assist. They must also show that it would be an extreme hardship or cause them harm to return to their country. Like the U visa, after having the T visa for three years, you can then apply to become a legal permanent resident.

(5) The fifth path to legal residency for immigrants who have suffered abuse is asylum. Asylum seekers leave their countries and are afraid to return because of persecution. Sometimes this persecution takes the form of domestic violence. In other words, this option might be the right fit if the abuse occurred outside the United States and the person fled their country to get away from his or her abuser. Under current asylum law, these cases can be difficult to win, but if you do win an asylum case, after one year you can apply to become a legal permanent resident.

(6) The sixth option is specifically for immigrant minors and is called Special Immigrant Juvenile Status (SIJS). This status is available to immigrant minors who cannot be reunified with one or both of their parents due to abuse, abandonment, or neglect. The process starts in a county’s juvenile and domestic relations court or family court, where a judge must issue an order finding that the immigrant child has been abused, abandoned, or neglected by a parent, as well as other factual findings. Often, this will be part of a custody order, and sometimes the non-abusive parent or another guardian will receive full custody. After receiving this order, the minor must apply for SIJS with immigration, and after this application is approved, he or she must wait for their visa to become available and remain unmarried. When their priority date is current, Special Immigrant Juveniles can apply for their green card.

If you or someone you know is not a U.S. citizen and is currently or has suffered from abuse, the number one thing is your or their safety. No one should put up with abuse, and your abuser should not use your immigration situation to make you stay with them or make you afraid to call for emergency medical or police help. Please contact VFN Immigrants First today to see if one of these six options can help you with your immigration case. 

 

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

23
Nov
2021

Abandoned, Afghans Desperately Wait for News of Pending Humanitarian Parole Applications Amidst Unprecedented Levels of Poverty and Hunger

Written by: Mosal Hashimee

Abandoned, Afghans Desperately Wait for News of Pending Humanitarian Parole Applications Amidst Unprecedented Levels of Poverty and Hunger

Over three months ago, the world witnessed the fall of Afghanistan to the Taliban for the second time in 25 years. As the U.S. expedited its evacuation of troops and personnel, Afghans desperately sought a way out, risking their lives to avoid living under Taliban rule again. During those first few weeks in mid-August, Afghans received an outpouring of support from the international community. Nations opened their borders to temporarily welcome refugees, while individuals turned out in droves to offer housing, donate clothes, and volunteer their time to ensure Afghans safe passage.

Unfortunately, immigration attorneys knew what was soon to come: news coverage would fade, and with it, fervor for the plight of Afghans. Such is the case with crises that gain traction through media spotlight, only to be abandoned when they are no longer hot topics. Indeed, the first month or so after the U.S.’s withdrawal was critical in terms of setting the stage for how Afghans can seek refuge for themselves and their families. For those who did not work as translators or in other capacities for the U.S. military, and therefore did not qualify for a Special Immigrant Visa (SIV), Department of Homeland Security Secretary Mayorkas issued a memo recommending humanitarian parole as a pathway to obtain entry into the United States. Advanced parole only allows for an individual to stay in the U.S. for a limited period (a year, for example); while here, the person must apply for another form of immigration relief such as asylum.

Still, for millions of Afghans, any option is better than the reality of remaining in their collapsed country at the mercy of a more technologically sophisticated, and more dangerous, Taliban. Those fortunate enough to have family members who could get in touch with attorneys here, and with the financial means to pay up to thousands of dollars in government filing fees, quickly filed applications for humanitarian parole. On Friday, the Associated Press (AP) reported that according to federal officials, out of more than 28,000 of these applications, only about 100 (0.3%) have been approved. Spokespeople for U.S. Citizenship and Immigration Services cited a lack of staff sufficient to process the surge of applications, among uncertainties such as whether and how individuals can interview at third countries now that there is no embassy in Afghanistan, for the delay.

Unable to accept their fate hanging in the balance, some Afghans took up offers from ex-marines conducting clandestine rescue operations and others who paid for chartered private flights to help them leave the country. Despite these efforts, millions of Afghans remain in excruciating limbo. Translators who assisted the U.S. government in its military efforts, deemed indispensable allies, are stranded, often missing a single document needed to complete their SIV applications. They are prime targets for retribution, along with their families. Girls are sold to men and continue to be barred from school in many provinces, with women – those who are not murdered for their activism – facing severe restrictions in working. Religious and ethnic minorities remain subjected to the Taliban’s genocidal violence and displacement. All of this is happening while the country’s assets remain frozen, plunging Afghan citizens into deeper economic despair with each passing day. Indeed, the UN has reported that almost 23 million Afghans – more than half of the country’s population – will face starvation this winter, forcing migration in what is forecasted to be a humanitarian disaster of devastating proportion.

We must resist the urge to become desensitized to this ongoing tragedy. In light of its own promises, the U.S. has a responsibility to make it easier for Afghans to exercise their human right to seek safety and a life free from violent persecution through waiving cost prohibitive government filing fees, hiring more agency staff to process applications, and lifting extensive documentary requirements. The U.S. should also coordinate with the global community to unfreeze the country’s assets. In the age of social media, there is ample evidence to disprove the Taliban’s attempts to rehabilitate its image and gain legitimacy; still, everyday Afghans should not suffer further for an outcome beyond their control.

As an Afghan American, I feel great sorrow at the current situation. Ours is a diaspora that longs to return to a peaceful homeland, a dream that increasingly feels like a fantasy. Yet our identity and culture – a culture based in an ethic of hope in the face of overwhelming adversity – remain strong. To those practitioners currently assisting Afghan clients: thank you. We need your assistance and expertise now more than ever.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

18
Nov
2021

OSHA Releases Temporary Standard Requiring Receipt of the COVID-19 Vaccine or Weekly Testing for Employers with 100 or More Employees

Written by: Monica Munin

OSHA published its highly anticipated Emergency Temporary Standard (“ETS” or “the standard”) on November 5, 2021, mandating those private employers with 100 or more employees implement a policy that requires all employees to either receive one of the COVID-19 vaccines or submit to weekly COVID tests and wear a face covering while onsite at the workplace. The standard, which is not to be confused with the Healthcare ETS or the requirements for federal contractors, answers a myriad of employer questions regarding the logistics of implementing the vaccine or testing mandate. This blog post will summarize its salient points. The standard, which states that it preempts states from adopting and enforcing workplace requirements relating to the occupational health and safety issues of vaccination, face coverings, and testing unless authorized by an OSHA-approved state plan, is expected to be challenged in court. At the time of this writing, the standard currently stays pending a decision by the United States Court of Appeals for the Fifth Circuit. OSHA has suspended implementation efforts, and the case has been referred to the 6th circuit for further proceedings.

The standard applies to employers who have 100 or more employees at any time during which the standard is in effect. Employers are required to comply with all requirements by December 6, 2021, the sole exception being the COVID-19 testing of unvaccinated or partially vaccinated employees, which must begin January 4, 2022. At this time, the standard (as written and assuming the stay is reversed) will remain in effect for six months or until OSHA finds a grave danger from the virus no longer exists. Temporary, part-time, and seasonal employees must be included when counting the number of employees an employer has. Independent contractors and employees of a staffing agency placed in an employer’s workplace are not considered employees for the purposes of determining whether the ETS applies. Employees that work remotely full time, work exclusively outdoors, or who do not report to a workplace whether other individuals (including co-workers or customers) are present do not need to be vaccinated or submit to the weekly testing requirement; however, they must be counted toward the 100-employee threshold to determine whether a given employer must implement the requirements of the ETS.

As a preliminary matter, covered employers are required to determine and document the vaccination status of each employee. Employers must maintain a record of each employee’s vaccination status, require proof of that status, and maintain an updated list that indicates whether each employee is fully vaccinated, partially vaccinated, not fully vaccinated pursuant to a valid medical or religious accommodation, or not fully vaccinated because they have been unable to provide sufficient proof of their vaccination status. The ETS defines acceptable proof of vaccination status as either: a record of immunization from a health care provider or pharmacy; a copy of the COVID-19 vaccination record card; a copy of medical records documenting the vaccination, a copy of immunization records from a public health, state, or tribal immunization information system; a copy of any other official documentation that contains the type of vaccine administered, the dates the vaccine was administered, and the name of the healthcare professional or clinic site that administered the vaccine. Suppose an employee cannot produce any of the above-listed forms of proof of vaccination. In that case, the standard allows employers to accept a signed and dated statement by the employee indicating that they have lost or are otherwise unable to provide one of the previous forms of proof listed and attesting to the best of the employee’s ability, their vaccination status, their best recollection of the type of vaccine they received and the vaccination dates of administration. If an employer wants to accept an employee statement, they must ensure the statement requires employees to certify the truth of their statement subject to criminal penalties. Employers who collected information about their employee’s vaccination status prior to the release of the ETS are exempt from requiring the types of acceptable proof listed above for those employees for whom the employer already ascertained vaccination status. These records must be maintained in accordance with OSHA’s medical documentation requirements for as long as the standard remains in effect. Further, employers must make an employee’s own individual COVID-19 vaccine or test result documentation available within one business day. Employers are also required to disclose the total number of vaccinated employees along with the total number of employees at the workplace within one business day of such a request by an employee. To the extent OSHA requests a copy of an employer’s written COVID-19 policy, the aggregate number of fully vaccinated employees, the total number of employees, or any other documentation an employer must maintain under the standard, an employer is expected to comply within four business hours.

Covid 19Employers subject to the ETS must establish, implement, and enforce either a written mandatory vaccination policy for all employees, which include language requiring new employees to be vaccinated as soon as practicable, or establish, implement, and enforce a written policy that allows employees to choose to provide evidence they are fully vaccinated or submit to weekly COVID-19 testing and wear a face covering while in the workplace. For those employers who choose to implement a mandatory vaccination policy, exceptions must be made for employees who are medically contraindicated for a COVID-19 vaccine, employees for whom medical necessity requires a delay in vaccination, and employees legally entitled to an accommodation for sincerely held religious beliefs or a disability. The standard requires employers to provide employees with a reasonable amount of time to acquire their vaccination doses (up to 4 hours of which must be paid time if the vaccine dose is administered during work hours) as well as paid time off to recover from the side effects from the vaccine (the ETS indicates that if an employer makes up to 2 days of paid time off available, they are likely in compliance with this requirement). Employers may require employees to use accrued sick leave, but they may not require employees to use another type of leave if their policy differentiates between sick and vacation leave, for instance. Suppose an employee qualifies for an exception to the vaccine mandate. In that case, they must submit to the regular COVID-19 testing and comply with face-covering requirements (unless the employee cannot comply with these requirements due to a medical necessity/disability or a conflict with a sincerely held religious belief. For those employers that elect to provide their employees with the option to receive weekly testing instead of the COVID-19 vaccine, employers must require unvaccinated employees to provide the employer with weekly COVID-19 test results (not to exceed 7 days between tests). Employees returning to work after a period of 7 days prior to returning to the workplace must be tested within 7 days of returning to the workplace. Employees that receive a positive COVID-19 test result or who are otherwise diagnosed with COVID-19 by a licensed healthcare provider must not be required to submit to weekly COVID-19 testing for a period of 90 days following the date of either the positive test result or the COVID-19 diagnosis. The ETS does not explicitly require employers to cover the costs associated with weekly testing but does contain language acknowledging that this may be required by other laws, regulations, or collective bargaining agreements.

Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes. The only exceptions to this requirement are situations when an employee is alone in a room with floor to ceiling walls and closed door, for a limited time while an employee is eating or drinking at the workplace, for a limited time for safety or security identification purposes, when an employee is wearing a respirator or facemask as defined in the standard, and where an employer can show that the use of a face covering is either infeasible or would create a greater hazard that would exclude compliance. Employees must be allowed to wear face coverings or face masks unless the employer can demonstrate this would create a hazard of serious injury or death. 

Regardless of employee vaccination status, all covered employers must require employees to notify the employer when they receive either a positive COVID-19 test or are diagnosed with COVID-19. Employees diagnosed or otherwise testing positive for COVID-19 must be immediately removed from the workplace and kept away from the workplace until they are either cleared to return to work by a licensed medical professional, receive a negative “nucleic acid amplification test” following a positive antigen test, or until the employee meets the CDC’s return to work criteria included in its “isolation guidance” (available at: https://www.osha.gov/sites/default/files/CDC’s_Isolation_Guidance.pdf). Employees removed from the workplace are not required to be provided paid time off (however, this could be required by other laws, regulations, or collective bargaining agreements). 

Finally, the ETS requires covered employers to inform employees (in a language and at a literacy level they understand) about the requirements of the ETS, provide each employee a copy of the CDC’s “Key Things to Know About COVID-19 Vaccines,” and information regarding the prohibition against employers from discharging or discriminating against employees for reporting work-related injuries or illness, filing a workplace safety complaint, or otherwise exercising their rights under the OSHA Act.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. To the extent you have any further questions about the ETS or other workplace issues, you are encouraged to contact Monica Munin at mmunin@vfnlaw.com

6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C. 

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

29
Sep
2021

Part 4: The Production and Sales of Cannabis in Virginia

 

The Production and Sales of Cannabis in Virginia

This article provides a high-level overview of the new legal landscape in Virginia related to the production and sale of cannabis and the opportunities out there for entrepreneurs.

For perspective, the Virginia General Assembly has only approved four (4) companies to legally process pharmaceutical cannabis for medical use, with one additional permit authorized, but unissued. The cultivation of hemp is currently allowed under a regulated process. And as of July 1, 2021, personal consumption and home cultivation of marijuana have been decriminalized to a large extent on the state level here in Virginia. Notably, the use, sale, and possession of cannabis over 0.3% THC in the United States remain illegal under federal law, despite laws in many states permitting it under various circumstances.

Cannabis PlantWhile all of this represents progress, in the overall push for legalization, we are still years away from state legalization of the production and sale of retail cannabis. For those interested in participating in this budding industry, keep in mind that you will need a license issued by the Cannabis Control Authority, which many anticipate will be much more challenging to obtain than an alcohol license.

The specific requirements for those license applications will not be disclosed publicly until July 1, 2022, with the first applications expected to be accepted July 2023 and retail sales expected to finally become legal in 2024. So while two years may seem like a long way away, if you are interested in being competitive in the license application process, you need to start positioning yourself now.

The state is likely to issue less than 1,000 licenses, which will be split between certain levels of the cannabis industry. It is anticipated that there will be 450 licenses available for cultivators, 60 for product manufacturers, 25 for wholesalers, and 400 for retailers. The application process is expected to favor applicants who demonstrate social equity, public health, and public safety priorities.

While this certainly provides some reason for optimism for those hoping to play a part in the industry, it’s important to remember that the regulatory framework and path towards legalization does not become effective until the future General Assembly and Governor approve the legislation in 2022. That said, if you are serious about getting a permit and being on the front end of the marijuana industry boom in Virginia, it’s important to surround yourself with professionals that can make your vision a reality. One of the old rules of thumb for aspiring entrepreneurs is to surround yourself with a decent lawyer and a good accountant.

VFN is one of the most highly regarded law firms here in Northern Virginia, with seasoned and well-connected attorneys who can help you establish your position in this state’s cannabis industry. Our services will be invaluable to clients, who will need to

  1. Establish a legal entity and presence here in the Commonwealth to become a qualified applicant;
  2. Obtain financing through investor relationships and/or financial institutions to secure required capital to be considered for licensure;
  3. Purchase the real estate and secure proper zoning and approvals required for your business
  4. Create solid commercial sale/purchase contracts to ensure payment and minimize risk exposure; and
  5. Establish employment procedures to ensure your business runs smoothly.

I have already been advising clients on how to prepare themselves for the permit application process for the past few years, which has been an exciting and engaging experience for me. I am excited to see what the future holds in this new industry and to be working with clients on the front lines. If you need me or want more information, please feel free to give me a call at 703.479.3181, reach out to me by email at TBlaser@VFNLaw.com, or visit my attorney page at https://www.vfnlaw.com/portfolio/tyler-j-blaser/.

24
Sep
2021

Threat to Broadband Expansion

 

Threat to Broadband Expansion

In Grano v. Rappahannock Electric Cooperative, Judge Moon of the Federal District Court made preliminary rulings about a new Virginia law that allows electric utilities to put broadband cables in existing electrical easements.

The facts are these: A new state law in 2020 granted electric utilities like Rappahannock Electric Cooperative the power to install broadband cables in existing electric line easements, regardless of what the easement deed says. The same law limited the kind of compensation that property owners can receive if that happened. Rappahannock proposed to buy the right to install broadband on the property of John and Cynthia Grano, but couldn’t agree on terms with them. Rappahannock never installed any broadband on the Granos’ property but asserted that it could if it wished.

Judge Moon’s opinion found that the Granos’ claims said many of the right things to move forward in Federal court. For example, Judge Moon decided that the Granos had properly alleged they suffered actual harm when the new law took effect in 2020 and that the new law did not provide an adequate remedy for any harm that they suffered. There is little analysis in the opinion about why the new law – which allows property owners to file a claim for trespass – is inadequate, but the opinion points to the fact that the new law limits the amount of money that property owners can get if they win their case. (Lots of other laws limit the amount of money courts can award for different kinds of cases; Virginia has caps on medical malpractice claims and punitive damages, for instance).

Ultimately, Judge Moon ruled that two of the Granos’ three claims had to be dismissed because Rappahannock did not take any action to exercise its rights under the new law. One peculiar feature of Judge Moon’s ruling is that it says that the third claim should have been dismissed as well, but Judge Moon did not dismiss that claim. The third claim was for unconstitutional impairment of contracts, and footnote 8 points out that such a claim cannot be brought under the federal statute that the Granos used as a basis for their suit. Rappahannock asked the court to dismiss the third claim, but for a different reason.

The case continues to move forward. The Virginia Attorney General has filed notice of his intent to intervene as a party in order to defend the law.

Please contact Martin Crim, mcrim@vfnlaw.com or 703-618-3205 should you have any questions or need assistance. 

22
Sep
2021

Part 2: What Constitutes Relief for the use of Cannabis Oil!

 

What constitutes relief for the legal or lawful use of cannabis oil?

The new law statute talks explicitly about what happens when somebody needs to have medical cannabis oil. One thing they must do, is they have to possess an unexpired written certification from a practitioner (which could be a doctor or a nurse practitioner.) Someone who’s usually allowed to write prescriptions. They must be registered with the board of pharmacy, and it’s not just any doctor. Anybody who is writing certifications for cannabis oil must be registered with the board of pharmacy.

In addition, once they have their written certification, the patient must register with the board of pharmacy. What they do now with their written certification is they go to a registered medical cannabis pharmaceutical processor, distributor, or dispensary. In the Commonwealth of Virginia, there are only five that have the authorization, and they’ve been spread out throughout the Commonwealth to have it around all the various parts of the state. Prince William County has one dispensary that has been approved, and that is located here in Manassas. It’s called Beyond Hello.

What if you’re an employer and believe the lawful use of cannabis oil impairs the employee’s work?

The new law talks about: What if the employee who needs the medical cannabis oil brings that oil with them to work; what are the employer’s rights under that circumstance? The law is very clear that employers with employees who are lawfully using cannabis oil still retain the ability to take adverse employment actions. That means you can discipline them, fire them, talk with them about the issues for any work impairment caused by using the cannabis oil.

Suppose the employee comes to work and is not performing their work and believes it’s associated with the use of cannabis oil. In that case, the employer can, in fact, discipline them or take adverse action, up to and including termination, based on the facts and the evidence you have at the time. Employers can also prohibit the possession of cannabis oil during work hours.

Even if the employee has a written certification, the employer can say that we do not want cannabis oil on our work premises, even though you have it lawfully.

What if you are a federal contractor or depend on federal funding? How does that impact you now with the new Virginia law and lawful use of cannabis oil?

Again, Virginia law has addressed this. It specifically says that for those who are federal contractors or subcontractors with employees who are using cannabis oil lawfully, they are not required to commit any act that would cause the employer to be in violation of any federal law or result in the loss of federal contract or federal funding. So, again, you do not have to do anything that would jeopardize your status as a federal contractor or subcontractor.

What if you are an employer in the defense industrial-based sector, which talks about the military department of defense, or you’re dealing with them as a federal contractor or subcontractor?

What can you do regarding this new Virginia law? The statute specifically says that defense industrial-based sector employers or prospective employers (meaning that you’re looking at hiring somebody, but you’re still in that sector) are not required to hire or retain any applicant or employee who tests positive for THC in excess of 50 milligrams for the urine test, 10 milligrams for the hair test. So, you do have some rights to limit your exposure. The reason for this is that you don’t want someone who may be impaired while on the job.

An employer to make sure they still have a safe work environment. If you have concerned somebody who may be under the influence of lawful cannabis oil, you probably should seek counsel to address how to handle this matter lawfully. You’ve got to balance the competing laws.

What can employers do in the application process?

As an aside, I will say that the EEOC says if you are an employer with 15 or more employees, you are covered by the federal law Title VII of the civil rights act of 1964. There are provisions that talk about the protection of employees and make sure that if you’re going to do a background check, it doesn’t violate or create an implicit bias. There is guidance, and if you want to look upon the EEOC, it talks about criminal history checks. There is a perception, and I think supported by evidence, that those who are Hispanic or African American, particularly males, were disproportionately impacted by the laws. Suppose you are doing background checks and don’t have a reasonable basis for saying there’s a reason to exclude someone with that criminal background. In that case, it may result in potential exposure to liability for that.

Where we are right now is the issue of doing background checks related to the new law in Virginia?

It specifically says employers and educational institutions are prohibited from requiring an applicant to disclose information related to any arrest, criminal charge, or conviction for any decriminalized possession of marijuana. So, what this is doing is it is resulting in an employer saying, listen, I’m just not going to even ask for background if there’s any marijuana charges or charges related to marijuana? I think people are wrestling with that right now. What do they want to do as part of their process going forward?

Some employers are saying, listen; I don’t know that I really care whether they used marijuana when they were in college or whether they used marijuana ten years ago. Do they care maybe if they used marijuana last week? Well, maybe some do, maybe some don’t. There are businesses that you know have a philosophy that says I don’t care what you do on your personal time. In Virginia right now, no law addresses that. Some states do have laws that address limitations on employer’s rights to limit people’s personal time. What they do on their personal time, in Virginia, there is no law on it, but what they’re suggesting here is that you can’t require an applicant to disclose that information if it’s an arrest, criminal charge, or conviction for any decriminalized possession of marijuana.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance