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Immigration Daily April 27, 2004
Previous Issues
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Editor's Comments

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] produce 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 the discriminatory 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


ILW.COM Focus

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.

  • NIV and IV issues affecting doctors
  • Issues affecting nurses and other healthcare professionals
  • State licensing issues for the health professions
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.

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 you can pose questions regarding your cases to the distinguished practitioners on the panel.

The deadline to register is Tuesday, April 27th. For more info, including detailed curriculum, speaker bios, and registration information, see: http://www.ilw.com/seminars/april2004.shtm. (Fax version: http://www.ilw.com/seminars/april2004.pdf.)


Featured Article

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."


Attorney listings on ILW.COM are searched 200,000 times/year! Each attorney listed is searched an average of once each day! Just one new client will pay for the entire year's fee! Click here for more info: http://www.ilw.com/membership/

Classifieds

Help Wanted: Experienced Immigration Attorneys
Jackson & Hertogs, based in San Francisco, CA, seeks experienced associates to work in multifaceted roles on a wide range of both nonimmigrant and immigrant cases. Successful candidates must be highly accountable individuals who take initiative and consistently deliver exceptional client service. Ideal candidates should possess the following: JD and licensed to practice law in the US; 2-5 years experience in employment-based immigration law; strong legal research and writing skills; highly motivated and detail oriented; excellent oral and written communication skills; excellent PC skills including Word, Excel, Powerpoint, email applications and immigration database/forms software. Prefer experience with ARIA software. For consideration, submit a cover letter, resume, writing sample and references to Jennifer Wadhwa, Human Resources by mail at: Jackson & Hertogs, 170 Columbus Avenue, Fourth Floor, San Francisco, CA 94133 or email at: hr@jackson-hertogs.com.

Help Wanted: Experienced Immigration Attorney
Immigration Lawyer (midtown NYC) - 14 person fast-paced, leading immigration law firm seeks experienced immigration lawyer with minimum of 5+ yrs' exp. in varied business visa practice: H, L, E, O, labor certifications, EB1-1 etc... Must have in depth-knowledge of laws & procedures, excellent writing, communication & organizational skills. Must be detail-oriented, able to manage a large case load and to work independently. Competitive compensation package offered. Please submit cover letter & resume to Marcia N. Needleman, Esq. at mneedleman@levittandneedleman.com.

Help Wanted: Experienced Immigration Paralegal
Goel & Associates, P.C. (G&A) , a leading business immigration law firm, seeks an experienced immigration paralegal to join its fast-paced corporate immigration practice located in Greenbelt, MD. Candidates must have at least one year of business immigration experience, ideally with H-1B, L-1, Labor Certification, and I-140/Adjustment of Status cases for clients in the high tech sector. A college degree, excellent communication and organizational skills, knowledge of PC applications, and the ability to work independently are required. We offer an outstanding work environment and an excellent compensation and benefits package, including a business-casual dress policy, health and dental insurance, 401(K), free parking, and more. To apply, please send resume, cover letter, and salary requirements to careers@goellaw.com, or fax to 301-313-0445.

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.

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
For information on advertising in the classifieds please click here

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Letters to the Editor

Dear 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.

Dienga


An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Send Correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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