private right of action gutted in Pascrell bill

Date: Friday, June 15, 2007 4:29 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 1709 -- 6/15/2007 >>>>>

In the previous newsletter I explained why "private right of action" is so
important. Because this right is not explicitly defined in the H-1B
regulations US workers have very few options if they want to pursue legal
action against an employer that displaced them with an H-1B visa holder, or
who denied them employment even though they were qualified for the job.

H-1B regulations don't give American citizens a "private right of action"
so they are at a huge disadvantage if they file lawsuits. Employers can hire
the best lawyers to defend themselves and even worse the law is rigged to give
them an almost unbeatable advantage in the courts.

In order to understand why this is important let's recap the decision made by
a district court concerning Mark Watson's lawsuit against EDS, BofA, and
IBM:

The district court dismissed Mr. Watson's case because 8 U.S.C.
' 1182(n) does not create a private cause of action on behalf
of an employee allegedly terminated in favor of an H-1B
nonimmigrant employee even if that status was obtained by the
means of a fraudulent application.

The bottom line is that as long as H-1B lacks a "private right of action"
American patriots like Watson are fighting losing battles. The deck of cards
is stacked against them.

Until recently there was a bill that would go a long way towards equalizing
the odds. In 2004 Rep. Bill Pascrell (D-NJ) introduced the "Defend the
American Dream Act" (H.R. 5413) that gave this right to Americans. You can see
the excerpt of this section of the bill below, and to read the entire bill go
to this website and search the 108th Congress:

http://thomas.loc.gov/

Section 5 of Pascrell's bill was of paramount importance to Americans.
Since the ruling elite of the U.S. are almost unanimous in their support of H-
1B, and the odds of winning legislative battles seem remote, Pascrell gave
Americans new hope for fighting H-1B through the legal system.

Recently Pascrell offered his bill as an amendment to the Comprehensive
Immigration Bill (CIR). Much to my horror, I just discovered that Section 5
has been completely gutted in his most recent version of the bill -- HR 2538.
The CIR has been revived by President Bush but this time, even if the Pascrell
amendment is accepted, there will be no help to displaced American worker.

All of this begs the question why Pascrell would gut this very important part
of the bill. Rumor has it that Senator Frank Lautenberg (D-NJ) put pressure on
Pascrell to remove it. Lautenberg's role as Director of the Board of ADP Wilco
has fueled this speculation because an H-1B related lawsuit (Sona Shah vs
Wilco) was filed against ADP Wilco. Lautenberg has a definite financial
interest in thwarting the lawsuit by making sure that the "private right of
action" never sees the light of day in H-1B.

Rumors aside, Pascrell should explain to the public why this vital section of
his bill was eliminated. I don't expect he will because it's unlikely a
reporter would ever ask the question.

+++++++++++++++++++++++++++++++++++++++++++++++++++

(original bill)
108th CONGRESS

2d Session

H. R. 5413
To amend the Immigration and Nationality Act to provide greater protections to
domestic and foreign workers under the H-1B nonimmigrant worker program.

IN THE HOUSE OF REPRESENTATIVES

November 19, 2004

SEC. 5. PRIVATE RIGHT OF ACTION.

Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(2)) is amended by adding at the end the following new subparagraph:

`(I) In addition to any other remedies available under this paragraph, a
person who is harmed by a violation by an employer of a requirement of this
subsection may bring a civil action against the employer in any court of
competent jurisdiction for damages or other appropriate relief.

+++++++++++++++++++++++++++++++++++++++++++++++++++

(latest bill -- there is no Private Right of Action)

HR 2538 IH

110th CONGRESS

1st Session

H. R. 2538

May 24, 2007

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