Research Information: Federal Immigration Cases and Agency Decisions H-1B Note: H-1B case ISHAI BIRAN, Plaintiff, -against- JP MORGAN CHASE & CO., Defendant. 02 Civ. 5506 (SHS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK    2002 U.S. Dist. September 11, 2002, Decided September 12, 2002, Filed DISPOSITION: [*1] Defendant's motion to dismiss complaint for lack of subject matter jurisdiction granted. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff United States citizen brought an action pursuant to 8 U.S.C.S. §§ 1182(n) and 1324(b), alleging that consulting firms used by defendant prospective employer abused the H-1B visa program, and that the employer and the consulting firms disproportionately hired H-1B visa holders, thereby discriminating against United States citizens in violation of 8 U.S.C.S. § 1324(b). The action was removed to the court. The employer moved to dismiss. OVERVIEW: The Immigration and Nationality Act contained comprehensive administrative remedies to redress alleged violations of 8 U.S.C.S. §§ 1182(n) and 1324(b). The court found that there was no evidence that the citizen exhausted the administrative remedies set forth in those sections. The question for determination was whether a private right of action existed to challenge violations of 8 U.S.C.S. §§ 1182(n) and 1324(b) prior to the exhaustion of the established administrative remedies. The administrative complaint procedures set forth in 8 U.S.C.S. §§ 1182(n) and 1324(b) indicated Congress' clear intent to limit enforcement of alleged violations to administrative mechanisms before resort could have been had to a court action. Not only did comprehensive administrative mechanisms exist, but also the legislative history of the Immigration and Nationality Act yielded no support for the proposition that Congress intended to create a private right of action. The conclusion that 8 U.S.C.S. §§ 1182(n) and 1324(b) did not create private rights of action mandated a finding that the court lacked subject matter jurisdiction over the citizen's claim. OUTCOME: The employer's motion to dismiss the complaint for lack of subject matter jurisdiction was granted. CORE TERMS: right of action, subject matter jurisdiction, administrative remedies, visa, Nationality Act, administrative law, aggrieved party, legislative history, motion to dismiss, required to file, federal statute, consulting, sets forth [text snipped] COUNSEL: Ishai Biran, PLAINTIFF, Pro se, Valley Stream, NY USA. For JP Morgan Chase & Co, DEFENDANT: Stephanie E Sowell, The Chase Manhattan Bank, New York, NY USA. JUDGES: SIDNEY H. STEIN, U.S. District Judge. OPINIONBY: SIDNEY H. STEIN OPINION:    MEMORANDUM SIDNEY H. STEIN, U.S. District Judge.    Ishai Biran brings this action pro se pursuant to 8 U.S.C. §§ 1182(n) and 1324(b), provisions of the Immigration and Nationality Act. Biran is a United States citizen with more than 18 years of software development experience. He alleges that since November 2001, when his prior employment ended, he has had difficulty obtaining interviews with prospective employers, including defendant JP Morgan Chase & Co. ("Chase"). Biran alleges that consulting firms used by Chase abuse the H-1B visa program, which is the visa program pursuant to which foreign technology workers may receive authorization to work in the United States. Biran also alleges that Chase and the consulting firms disproportionately hire H-1B visa holders rather than United States citizens, thereby discriminating against United [*2] States citizens of comparable skill and experience, in violation of 8 U.S.C. § 1324(b). This action was commenced in the Supreme Court of the State of New York, County of New York, and was removed by Chase to this Court pursuant to 28 U.S.C. §§ 1441, et seq.    Chase now moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Because Biran has failed to exhaust the administrative remedies set forth in 8 U.S.C. §§ 1182(n) and 1324(b) and because no private right of action exists to enforce those statutory provisions, this Court does not have subject matter jurisdiction over this action. The motion to dismiss the complaint is therefore granted pursuant to Fed. R. Civ. P. 12(b)(1).    [HN1] An action must be dismissed for lack of subject matter jurisdiction pursuant to Fed R. Civ. P. 12(b)(1) when the trial court lacks the power to adjudicate the case. A plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).    [HN2] The Immigration and Nationality Act contains comprehensive [*3] administrative remedies to redress alleged violations of sections 1182(n) and 1324(b). [HN3] Section 1182(n) sets forth the requirements of the H-1B visa program. [HN4] Section 1324(b) prohibits discrimination in employment hiring or discharge on the basis of citizenship. There is no evidence that Biran has exhausted the administrative remedies set forth in those sections.    The question for determination is whether a private right of action exists to challenge violations of 8 U.S.C. §§ 1182(n) and 1324(b) prior to the exhaustion of the established administrative remedies. [HN5] In determining whether a private right of action exists, "the ultimate issue is whether Congress intended to create a private cause of action." California v. Sierra Club, 451 U.S. 287, 293, 68 L. Ed. 2d 101, 101 S. Ct. 1775 (1981) (citations omitted). The court may infer a private right of action from a federal statute that does not expressly create one only if the statute's language, structure, and legislative history reveal Congress' intent to create a private right of action. See Thompson v. Thompson, 484 U.S. 174, 179, 98 L. Ed. 2d 512, 108 S. Ct. 513 (1988).    This issue [*4] was directly addressed by Judge Allen G. Schwartz who concluded that [HN6] "nothing in either statutory provision indicates that Congress intended to provide a private right of action in federal court to enforce violations of sections 1182(n) or 1324(b) in the first instance." Shah v. Wilco Systems, Inc., 126 F. Supp. 2d 641, 648 (S.D.N.Y. 2000); see also United States v. Richard Dattner Architects, 972 F. Supp. 738, 747 (S.D.N.Y. 1997) (stating that [HN7] Section 1324(b) "seems to provide for a purely administrative review of those claims"); Murtaza v. N.Y. City Health and Hospitals Corp., 1998 U.S. Dist. LEXIS 6231, No. 97 Civ. 4554, 1998 WL 229253, at *4 (E.D.N.Y. Mar. 31, 1998) (finding that [HN8] plaintiff had no private right of action to assert discrimination under Section 1324(b)). [HN9] The administrative complaint procedures set forth in those sections of the Act indicate Congress' clear intent to limit enforcement of alleged violations to administrative mechanisms before resort can be had to a court action.    [HN10] Section 1182(n) contains a comprehensive regulatory enforcement scheme that entrusts the investigation of complaints to the Secretary of Labor and the Attorney General. [*5] See 8 U.S.C. § 1182(n)(2)(A)-(n)(5)(A). Pursuant to Section 1182(n)(2), the aggrieved party is required to file a complaint with the Wage and Hour Division of the U.S. Department of Labor, which then makes a determination regarding the validity of the complaint. 8 U.S.C. § 1182(n)(2); 20 C.F.R. §§ 655.805, 655.815. The complainant may then request a hearing before an administrative law judge; following that individual's decision, the complainant may petition for review by the Secretary of Labor, and her decision in turn may be appealed to the appropriate United States District Court. 20 C.F.R. §§ 655.815, 655.820, 655.840, 655.845, 655.850. [HN11] A separate subdivision of section 1182(n) -- subsection 5 -- sets forth the complaint procedure for a domestic worker who has been rejected for a job that is the subject of a labor condition application. Under that subdivision, the aggrieved party first must file a complaint with the Attorney General who, upon a finding of reasonable cause in the complaint, initiates binding arbitration proceedings. 8 U.S.C. § 1182(n)(5)(C). [*6] The arbitrator's opinion is subject to judicial review in the appropriate United States Court of Appeals. 8 U.S.C. § 1182 (n)(5)(D).    [HN12] Section 1324(b) contains a detailed administrative enforcement mechanism that explicitly requires exhaustion of administrative remedies before a claim may be filed in federal court. See 8 U.S.C. § 1324b(b)-(j); see also Shah, 126 F. Supp. 2d at 648-51. Specifically, an aggrieved party is required to file a complaint with the Special Counsel for Immigration-Related Unfair Employment Practices, which then makes a determination regarding the validity of the complaint. 8 U.S.C. § 1324b(b)-(d). The complainant may then request a hearing before an administrative law judge. 8 U.S.C. § 1324b(e)-(h). The complainant may appeal the administrative law judge's final order to the appropriate United States Court of Appeals. 8 U.S.C. § 1324(b)(i).    Not only do comprehensive administrative mechanisms exist, but also the legislative history of the Immigration and Nationality Act yields no support for the proposition that Congress [*7] intended to create a private right of action in sections 1182(n) or 1324(b).    [HN13] A federal statute that does not create or imply a private right of action does not present a federal question pursuant to 28 U.S.C. § 1331 on behalf of private individuals. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986). The conclusion that 8 U.S.C. §§ 1182(n) and 1324(b) do not create private rights of action mandates a finding that this Court lacks subject matter jurisdiction over plaintiff's claim.    Accordingly, Chase's motion to dismiss the complaint for lack of subject matter jurisdiction is granted. Dated: New York, New York September 11, 2002    SO ORDERED:    Sidney H. Stein, U.S.D.J.