Chelladurai v. Infinite Solutions, CASE NO. 2003-LCA-00004, U.S. Department of La b or 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 La b or,

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

The case involved a company that filed a La b or Condition Application on b ehalf of a worker. The change of status application was approved, b ut the company was not a b le to find work for the worker and "te rm ina ted" her. In actuality, the worker never was paid b y 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 una b le to find work for her.

The worker attempted to seek b ack pay dating to January 2001. She b ased 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 pro b lems.

The worker argued that the employer intended to take advantage of the H-1B porta b ility rules. However, the employer argued that his letter to the INS with the application specifically stated that the employer was to b egin “only after approval of this petition and the issuance of an H-1B visa”. Therefore, the court found that the duty to pay the b ack wages dated from April 16th, the date of the H-1B approval end to the date of te rm ina tion.

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In re Bassel Na b ih ASSAAD, Respondent

File A72 824 993 - Houston

Decided Fe b ruary 12, 2003

In this case, the INS sought to have the landmark decision Matter of Lozada reexamined and overturned b y 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 b asis 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 su b mit an affidavit detailing the agreement that was entered with the first lawyer with respect to the actions to b e taken and the representations the first lawyer made or did not make. Second, the alien must info rm 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 discipl ina ry authority, such as a state b ar, with respect to any violation of counsel's ethical or legal responsi b ilities, or adequately explain why no filing was made. F ina lly, the alien must show why he or she was prejudiced b y the actions or ina ctions of counsel.

The BIA rejected the INS' arguments. Though the Coleman decision was rendered b y the Supreme Court more than ten years ago, the INS never raised to challenge Lozada in su b sequent cases b efore the BIA. Furthe rm ore, for more than a decade the circuit courts have recognized Lozada as a valid precedent setting forth procedures b y which respondents can present claims of ineffective assistance of counsel. The BIA also noted that the Coleman decision involved a crim ina l 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 o b taining a drivers license is not a legitimate reason to issue a social security num b er. In 2002, the SSA changed its longstanding policy of recognizing o b taining a driver's license as a legitimate reason to request a Social Security Num b er.

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 o b taining a driver's license was a legitimate b asis for o b taining a Social Security Num b er. The court has therefore declared the SSA rule to b e invalid.