Chelladurai v. Infinite Solutions, CASE NO. 2003-LCA-00004, U.S. Department of Labor Office of Administrative Law Judges

In this case, Chelladurai filed a complaint with the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor,

The question of whether an employer has an obligation to pay an employee the prevailing wage when an H-1B petition is filed even if the employee is not ultimately hired was the subject of this matter.

The case involved a company that filed a Labor Condition Application on behalf of a worker. The change of status application was approved, but the company was not able to find work for the worker and "terminated" her. In actuality, the worker never was paid by the company for any work. The LCA was approved on April 9, 2001. The employer notified the worker on May 21, 2001 that it was unable to find work for her.

The worker attempted to seek back pay dating to January 2001. She based this on the fact that she was present at the employer's office on several occasions prior to April 2001. She attended a computer class, sent and received emails soliciting potential work for herself as an employee of the petitioner and gave advice on one project with which the employer was allegedly having problems.

The worker argued that the employer intended to take advantage of the H-1B portability rules. However, the employer argued that his letter to the INS with the application specifically stated that the employer was to begin “only after approval of this petition and the issuance of an H-1B visa”. Therefore, the court found that the duty to pay the back wages dated from April 16th, the date of the H-1B approval end to the date of termination.

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In re Bassel Nabih ASSAAD, Respondent

File A72 824 993 - Houston

Decided February 12, 2003

In this case, the INS sought to have the landmark decision Matter of Lozada reexamined and overturned by the Board of Immigration Appeals. Matter of Lozada allows a respondent to assert a claim of ineffective assistance of counsel in an immigration proceeding.

The INS argued in this case that Matter of Lozada contradicts a United States Supreme Court case, Coleman v. Thompson, that states that where there is no constitutional right to the appointment of counsel at government expense, there is no constitutional basis for a claim of ineffective assistance of counsel.

In Matter of Lozada, the Board of Immigration Appeals set forth the rules for a claim of ineffective assistance of counsel. First, the alien must submit an affidavit detailing the agreement that was entered with the first lawyer with respect to the actions to be taken and the representations the first lawyer made or did not make. Second, the alien must inform the first lawyer of the allegations of ineffective assistance of counsel and give him or her the opportunity to respond. Third, the alien must file a complaint with the appropriate disciplinary authority, such as a state bar, with respect to any violation of counsel's ethical or legal responsibilities, or adequately explain why no filing was made. Finally, the alien must show why he or she was prejudiced by the actions or inactions of counsel.

The BIA rejected the INS' arguments. Though the Coleman decision was rendered by the Supreme Court more than ten years ago, the INS never raised to challenge Lozada in subsequent cases before the BIA. Furthermore, for more than a decade the circuit courts have recognized Lozada as a valid precedent setting forth procedures by which respondents can present claims of ineffective assistance of counsel. The BIA also noted that the Coleman decision involved a criminal case and not an immigration case.

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Iyengar v. Barnhart, US District Court for the District of Colombia

This case is a class action law suit where several plaintiffs argued that the Social Security Administration violated the Administrative Procedures Act when it issued an interpretation that expressly states that obtaining a drivers license is not a legitimate reason to issue a social security number. In 2002, the SSA changed its longstanding policy of recognizing obtaining a driver's license as a legitimate reason to request a Social Security Number.

The Social Security Administration argued that the change is merely an interpretive rule not requiring a notice and comment period. The court disagreed noting “When an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish without notice and comment.” That was the case here since the SSA expressly stated that obtaining a driver's license was a legitimate basis for obtaining a Social Security Number. The court has therefore declared the SSA rule to be invalid.