Case Conclusion Date: July 28, 1997
Practice Area: Immigration
Outcome: Prelimanry Injunction against US Dept of Labor
Description: The lead plain tiff was Ms. Lauretta, a health care worker, caring for the mentally disabled. Two other clients, a car wash supervisor and a bi-lingual dental assistant, joined the suit. In 1995 we had filed a labor certification on behalf of each with the U.S. Dept of Labor (DOL) as the first step to immigrating. The process required that we prove that there were no willing, able and qualified US workers to fill the positions. We had completed that process and began waiting for the DOL to make a decision. While we were waiting for a decision on the application, DOL changed the eligibility rules in 1997 by implementing General Administrative Letter 1-97 (GAL 1-97) and made it retroactive to our case. Specifically, all employers now had to prove that the job being offered previously existed. This, we argued in court was a violation of law because DOL did not publish this new rule and failed to solicit public comment, as required by the Administrative Procedures Act. Further complicating the plight of my clients was that the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) became law on Sept 30, 1996, with its punitive provisions ripening into enforcement on April 1, 1997. The new law penalized those in the U.S. for 180 days or 1 year with different. The counting of the unlawful presence began on April 1. Under either circumstances, unlawful presence would prevent the client from adjusting their status (completing the green card process in the U.S.). The more serious penalty was that if they could not qualify to a resolution in the U.S., each would have to apply for the immigrant visa in their home country. However, the minute they leave the country, another penalty of unlawful penalty was there to greet them: If they remained in the US for 180 days after April 1, the would be ineligible to immigrate to the U.S. for three (3) years; if they remained for one year or longer, they would be intelligible to return for ten (10) years. Because of these severe consequences, all of which entered the picture after our 1995 filing with the DOL, we sued for mandamus in U.S. District Court, Central District of California, asking for an order enjoining the DOL from further delays in deciding the pending labor certifications. It was important to obtain a decision from DOL so that we may move to the second step, filing the visa petition with the immigration service. If we could do it in less than 180 days from April 1, the clients would not have to leave the US and expose themselves to 3 or 10 years of bars to immigration. The District Court agreed that the clients would suffer irreparable injury if DOL did not act, and issued a preliminary injunction in our favor. Ultimately, the rest of the case was settled before the Ninth Circuit Court of Appeals when DOL retracted its position of applying the rule retroactively. We also were awarded attorney fees under the Equal Access to Justice Act (EAJA).