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LCA Violation Claims Must be Pursued Through Administrative Enforcement Mechanisms
by Shea Lukacsko

The United States District Court for the Southern District of New York recently issued a significant decision for immigration law practitioners in Shah v. Wilco Systems, Inc., 126 F. Supp. 2d 641 (S.D.N.Y. 2000). The case establishes that claims for violation of the H-1B labor condition application provisions of the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. (the “INA”) may not be prosecuted in court, but instead must be brought pursuant to the applicable administrative enforcement mechanisms.

The plaintiffs are former employees of the defendant company, one a naturalized U.S. citizen and the other a British citizen on an H-1B visa. They sued the employer and the federal government in federal court (the Southern District of New York), alleging a comprehensive scheme by the employer to violate the INA by importing a cheaper foreign workforce in order to displace more expensive domestic workers.

The specific allegations included several violations of section 1182(n) of the INA (governing labor condition applications) and violations of section 1324b (the INA's unfair employment practices provision). Plaintiffs also alleged that the Attorney General and Secretary of Labor had breached their respective duties to police employers “seeking the admission of foreign workers.” Plaintiffs sought damages from and an injunction against the employer and an injunction against and a writ of mandamus directed to the government.

In response to the defendants' motions to dismiss under Rule 12(b), the court dismissed with prejudice all of the claims alleging violation of the INA. The court's primary basis for rejecting plaintiffs' claims for violation of the INA was the lack of a private right of action to enforce sections 1182(n) and 1324b. It examined the comprehensive regulatory enforcement provisions applicable to sections 1182(n) and 1324b (detailed in the Code of Federal Regulations at 20 C.F.R. § 655.700, et seq., and 28 C.F.R. § 44.100, et seq., respectively) and concluded that their existence indicated Congressional intent to preclude a private right of action in federal court until after the administrative procedures have been exhausted.

The court also rejected plaintiffs' arguments that (1) they had a common law right of action based on the violations, (2) filing a discrimination charge with the EEOC was equivalent to administrative exhaustion under the INA, and (3) the defendants were estopped from raising the defense of plaintiffs' failure to exhaust their administrative remedies. Finally, the court held that the plaintiffs had failed to plead the elements necessary to obtain a common law writ of mandamus against the government, namely, the existence of the government's duty to take action and the lack of an adequate available remedy.

Although a few cases have addressed the issue of a private right of action under other provisions of the INA (section 1324b in particular), this is the first published decision to address the issue with respect to the H-1B labor condition application provisions. The legacy of this case, therefore, is that claims for violation of section 1182(n) of the INA, like those under section 1324b, must be pursued through the applicable administrative enforcement mechanisms, not by way of court litigation in the first instance.

Moreover, because the statutes of limitations are relatively short (one year for section 1182(n) violations and 180 days for section 1324b violations), aggrieved H-1B employees or applicants should not delay in seeking relief from the proper administrative agency. On the flip side, an employer faced with a court action for violation of sections 1182(n), 1324b, or similar provisions of the INA should move to dismiss the claims on the ground that there is no private right of action in court.

This comment provides general information only about the topics discussed. It is not legal advice and should not be used as a substitute for careful review of your specific situation.

About The Author

Grotta, Glassman, & Hoffman, P.A., represented the employer in this case. The firm has 55 attorneys and offices in New Jersey and New York. It represents management exclusively in labor and employment matters, including business immigration matters. Questions regarding this case may be directed to Shea Lukacsko, who briefed the successful motion to dismiss, or >David Nachman, Chair of the firm's immigration practice.

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