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Dear Editor:
Imbedded in Cyrus Mehta's article, ably summarizing the ALJ's lengthy opinion in Administrator v. Kutty, I find a troubling statement that compels a response from me, the attorney who initiated the complaint that resulted in the opinion:

"Employers must also be aware that when the wages on the LCA are not complied with, an H-1B worker, who is already very savvy about immigration issues, is likely to complain to DOL through a handful of attorneys who are now increasingly taking on such matters to compensate for reduced business in the filing of actual H-1B petitions."

I am sure Mr. Mehta, an able and honorable attorney, meant no harm by the remark, but I cannot let it pass. The remark tends to suggest that attorneys who represent an alien in enforcing his or her rights under the DOL-based labor condition rules in connection with H-1B cases are only doing so because they lack business representing employers. For the record, I lead the Immigration Team in a full service law firm of 250 lawyers and public policy advisors in 9 cities including a Washington, D.C. office that is one of the top 10 lobbying firms in the nation. The Immigration Team is part of a Labor and Employment Group of about 30 lawyers that chooses, for business reasons, to represent almost exclusively management, as opposed to workers with claims against management. Our Health Law Department, consisting of about 40 lawyers, represents sophisticated health providers throughout the U.S. Our Immigration Team, however, has always handled all kinds of immigration matters, from investors to medical to IT to family to removal proceedings. We represent some of the largest employers and medical providers in the United States. We have not had any slacking of our business, and our Immigration Team was growing steadily larger as I took on their cases against Dr. Kutty (and still is).

When a number of doctors approached me about their complex immigration and other issues, and I confirmed we had no conflict with a representation adverse to their employer who had eggregiously violated their rights, I took on their cases, and my job was to pursue all of their remedies, only some of which were addressed by notifying the Department of Labor Wage and Hour Division about their LCA-based complaint. We also brought lawsuits against Dr. Kutty's various employer entities to invalidate noncompetition and early termination penalty clauses (litigated in state and federal court), worked with their new employers to arrange ongoing immigration status, and worked with INS headquarters to assure their "immigration" protection as whistleblowers. My firm was perhaps uniquely qualified to handle the range of actions necessary. If the business orientation of our practice had posed an impediment to pursuing all their remedies, then I should not have taken on their representation at all. Surely Mr. Mehta would not have done any less had he been contacted by the doctors instead of me. The point is that taking a rarely used position on behalf of a client does not reflect that a lawyer doing so is desperately trying to fill a practice void-- it means only that the lawyer is representing the client zealously, as we are all ethically required to do. Surely Mr. Mehta does not mean to suggest otherwise. Thank you for serving as a meaningful forum for immigration developments. And I thank Mr. Mehta for an excellent article about the ALJ's decision.

Robert Divine, Esq.
Baker, Donelson, Bearman & Caldwell, P.C.
Chattanooga, TN

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