The Immigration Reform and Control Act of 1990 created the H-1B nonimmigrant classification, which provides a vehicle by which a qualified alien may seek admission to the United States on a temporary basis to work in his or her field of expertise. An alien may file a H-1B petition to perform (i) services in a specialty occupation, (ii) services relating to a Department of Defense cooperative research and development project or coproduction project, or (iii) services of distinguished merit and ability in the field of fashion modeling. Prior to employing an H-1B temporary worker, the U.S. employer must first file a Labor Condition Application (LCA) with the Department of Labor (DOL) and then file an H-1B petition. The LCA specifies the job, salary, length, and geographic location of employment. The employer must agree to pay the alien either the actual or prevailing wage for the position, whichever is greater.
In Palmer v. Trump Model Management, LLC, Alexia Palmer, a Jamaican fashion model, brought a putative class action against Trump Model Management, LLC (Trump Model Management), for allegedly violating the Immigration and Nationality Act (INA), a federal statute governing U.S. immigration-related matters, including employment of immigrants. Palmer claimed that, for years, Trump Model Management had engaged in a fraudulent scheme whereby the company lures foreign models to the United States with false promises of “a life of glamour in Soho clubs and on catwalks,” lies to the federal government in order to obtain H-1B visas for the models, and then cheats the models out of their pay. Trump Model Management moved to dismiss the complaint for failure to state a cause of action.
A worker who believes that her employer lied on a labor application by overstating her wages may seek redress pursuant to Section 1182(n) of the INA, which governs labor applications. Under Section 1182(n), an aggrieved worker must first file a complaint with the Wage and Hour Division of the DOL, which investigates the complaint and then issues a determination as to whether the employer has violated the labor applicant rules. Once the DOL issues a determination, if the worker is dissatisfied with the result, she may request a hearing before an administrative law judge who will issue a decision. Thereafter, either party may petition for review by the Secretary of Labor. Finally, the Secretary of Labor’s decision may then be appealed to the appropriate federal district court.
The court dismissed Ms. Palmer’s claim for failing to exhaust the above-described administrative remedies. Prior to bringing the action, Ms. Palmer did not attempt to voice her grievances against Trump Model Management by using the INA’s complaint procedures; therefore, the court found, she was prohibited from asserting an INA claim in federal court until she had pursued redress through the DOL.
This case is a good example of why putative litigants must be aware of all preconditions to bringing a lawsuit. If you believe that your employer has violated the INA, contact The Harman Firm, LLP.