Damages Awarded For Pain And Suffering In LCA Matter
The Matter of Rungvichit Yongmahapakorn (Rung), No. 2004-LCA-6 (OALJ, Mar.
23, 2004) is a fascinating 41-page LCA decision involving several
out-of-the-ordinary issues. Much more importantly, this decision raises a
number of points for every attorney in H-1B practice to ponder. Some
highlights from this case, with our brief comments in parantheses:
from page 20-21 "[Employee] said that the company documents regarding the
transactions were not available to
her. On September 23, she provided [SWA representative] with lists of
witnesses who could
verify her assertions. The [employee] did not request that the [Employer]
these documents, but the burden to maintain these records is on the
[Employer] and the allegations create an inference that has not been challenged, since the [Employer] did not
provide testimony or documentary evidence to controvert these allegations."
(Employers should bear this in mind for future LCA disputes - they may be
responsible to provide evidence in futherance of Employee's case.)
from page 24 "If the ti[t]le can be "slapped on just about anybody," a
company stands responsible for
the title it places on an employee." (This may raise some serious issues
concerning prevailing wage analysis at titles provided to Employees for PR
purposes - employers often "inflate" titles to please various
constituencies, and the prevailing wage has been hitherto been understood
to be largely independent of the title. This case raises serious questions
about this practice.)
from page 30 "However, I recognize that many employees are in a fragile and
tenuous position, in that if
they complain; they place themselves at risk. Congress took that into
account when it wrote
several variations on the whistleblower theme. And INA § 212(n) is a
statute that intends to
protect workers who do not have limited bargaining power."
from page 36 "Compensatory damages may be awarded under the environmental
statutes for pain and
suffering, mental anguish, embarrassment and humiliation caused by
treatment. ... The same should apply under the INA. Where appropriate,
[an employee] may recover an award for emotional distress when his
or her mental anguish is the proximate result of respondent's unlawful
discriminatory conduct. ... The [Employee] bears the burden of proving the
existence and magnitude of any such
injuries; although, as a caveat, it should be noted that medical or
psychiatric expert testimony on
this point is not required." (To our knowledge, this is the first instance where damages for pain and suffering were awarded within the context of the INA in an LCA matter.)
from page 38 "Based on the fact that the reinstatement is impractical, and
that there was no bona fide
termination of employment, I find that the [Employee] should receive front
pay for the
remainder of the term of the LCAs in question. (Back pay has been ordered
in numerous LCA disputes, however this is a rare instance of a "front-pay"
award where the Employer has to pay for the unexpired portion of the LCA
term even after the Employee was terminated.)
from page 38 "Because I find that the [Employer] did not render a bona fide
termination, and that the
documents [employee] wishes to be expunged relate to that incident,
I find that this is a reasonable
request. Therefore, the [Employer] shall notify, by certified mail, all
employees of [Employer]
who were employed during the period that the termination and eviction were
posted, notice that
the [Employee's] position as vice president of [Employer] was not properly
terminated and that
she should not have been evicted from [Employer's] premises."
We commend this decision to the attention of all those involved in H-1B
matters. For the decision, see here: http://www.ilw.com/immigrationdaily/cases/2004,0427-rung.pdf
Deadline For Healthcare Seminar Is Tuesday, April 27th!
Healthcare immigration is probably the hottest area of immigration law
practice today. Immigration attorneys confront three distinct sets of
issues when advising healthcare industry clients.
Special Note On Session Three: In order to receive an immigration benefit based on an offer of employment in a health care profession, a foreign national must be sure to comply with all requirements in the state of intended employment in order to be eligible for a license to practice their profession. Because licensing issues can cause problems and delays in obtaining immigration benefits, immigration attorneys counseling foreign nationals in the health care professions need to be aware not only of the requirements for licensing of various occupations in each state, but also of the concerns that licensing authorities have with foreign-educated health care workers. We expect this session to involve speakers from state licensing boards, who will review issues in licensing of foreign-educated health care workers and help practitioners avoid common pitfalls in licensing of foreign nationals that turn into major issues in immigration cases.
- NIV and IV issues affecting doctors
- Issues affecting nurses and other healthcare professionals
- State licensing issues for the health professions
Our new seminar "Doctors, Nurses And Other Health Professionals: Current
Immigration Issues" features distinguished practitioners Sylvia Boecker,
Matthew S. Dunn, Elahe Najfabadi, Suzanne Seltzer, Greg Siskind as speakers
with William A. Stock leading the discussion (other speakers to be
announced, experts in state licensing matters will join the final session).
The seminar is offered by phone, so law
offices around the country can participate. It is also a great training
tool for the entire law firm staff (one registration covers everyone
sharing a speakerphone). The seminar includes an in-depth Q&A period where
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The deadline to register is Tuesday, April
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registration information, see: http://www.ilw.com/seminars/april2004.shtm. (Fax version: http://www.ilw.com/seminars/april2004.pdf.)
In Oregon, For Immigrant Defendants, The Time For Post-Conviction Relief Is Now
Brian Conry, Esq. writes "The time to proceed with a PCR (Post Conviction Relief Petition) is now in Oregon because the Vega-Gonzalez v. State case has opened the door to substantive and procedural justice."
Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here: http://www.ilw.com/seminars/
Immigration Law News
OALJ Orders "Front Pay", Says Damages For Pain And Suffering Can Be Awarded Under INA
In the Matter of Rungvichit Yongmahapakorn (Rung), No. 2004-LCA-6 (OALJ, Mar. 23, 2004), the Office of Administrative Law Judges, in a 41-page decision and order on a multi-faceted and convoluted LCA dispute, said that a company was responsible for the title it placed on its employee and said that compensatory damages for pain and suffering, mental anguish, embarrassment and humiliation caused by discriminatory treatment could be awarded under the INA, and ordered that the employee receive front pay for the LCAs involved.
OIL Immigration Litigation Bulletin: November 2003
The Office of Litigation of the Department of Justice released the November 2003 issue of its publication, Immigration Litigation Bulletin.
Florida Governor Bush's Support Is Not Enough To Pass Licenses For Undocumented Legislation
The Miami Herald reports "The proposal to let illegal immigrants get Florida driver licenses is dead."
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Help Wanted: Experienced Immigration Attorneys
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Help Wanted: Experienced Immigration Attorney
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Help Wanted: Experienced Immigration Paralegal
The University of Southern California (USC) seeks to hire a FT experienced immigration paralegal to assist academic, research and service units with the hiring of nonimmigrants for both temporary and career appointments. Minimum Qualifications: Candidates should possess 2+ years experience in a private immigration practice or in an academic setting with immigration related experience. Applicants should have experience in: labor certification applications, immigrant visa petitions including adjustment of status applications and consular processing, and nonimmigrant visa processing (O-1, H-1B, TN). Will manage large caseloads with high degree of independence, interact with USC departments and personnel on a regular basis, and serve as a resource for university faculty and staff. Candidates should also possess excellent writing and communication skills. Working knowledge of Microsoft Office (Word, Excel, PowerPoint) and Immigrant Pro or related immigration software is required. Bachelor's degree preferred. Apply online at www.usc.edu/jobs (submit reference Req. #15453 under Search/Apply). AA/EOE.
Immigration Law Books
Reserve your 2004 copies now. No immigration attorney should be without a complete, up-to-date reference library for all his/her primary resource needs. The 2004 edition of The Whole Act – INA, provides annotations, footnotes, editorial notes, updated Topical Index with a separate Index of Appendices, and 49 Appendices, to help both novice and experienced practitioners alike efficiently navigate the complex labryinth of immigration statutes. The 2004 edition of regulations in 2 volumes (both immigration regulations – 8 CFR – and all immigration-related regulations of the DOL, DOS, and DOJ) includes the latest changes in the regulations + handy and most detailed Topical Indices for each. The 2004 edition of Patel's Citations, covering the history and treatment of all reported administrative precedent decisions under immigration and nationality law, keeps you abreast of the status and standing of all such immigration citations (e.g., reversed, affirmed, modified, followed or not followed, criticized, distinguished, etc.). This entire reference library consisting of the Act, Regulations, and Citations, is an indispensable reference tool that you will reach for day after day. Reserve your 2004 editions now. We offer a 30-day money-back guarantee. If you're not satisfied with your purchase within 30 days of receipt, you can request a full refund - no questions asked. For more information or to reserve your pre-publication advance copies see here.
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Letters to the Editor
What will be the fate of thousand Sierra Leoneans who have been in the US for 5-6 years with TPS, and the the TPS is
expiring on the 3 May some with families and children born in the US? Please send a message
out to the people of the US that Sierra Leoneans suffer 12 years of civil war some don't have family there at this time.
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