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Date: Sat, 12 Jul 1997 02:54:30 -0500
Reply-To: Multiple recipients of VirginiaAttorneys-L List

Re: Seeking Representation

Patrick M. Pickett wrote:

  While I do not profess to be an expert in immigration law, if we accept as true the premise that the employment was illegal, and, if you can get beyond at-will-employment, you would be hard pressed to find a court willing to award damages for breach of an illegal contract.
--
Cordially,

Patrick M. Pickett
McCandlish & Lillard
11350 Random Hills Road
Suite 500
Fairfax, Virginia 22030
ph.: (703) 934-1140
fax: (703) 352-4300

Employment of foreigners (aka aliens) may not be deemed employment-at-will if one reads the Immigration Nationality Act (INA), and in particular, Title 8, amended section 1182(n) in view of old section 1182(a)(14); sections 1184(c)(1), 1184(c)(5)(A), 1324(a)(2)(B)(ii), 1324a(a)(1)(B), 1324a(a)(4), and 1324b(a)(1)(A), etc. If you wish I can email you the exact wording of these statutes, which I have retrieved via internet (and verified later in a local library).

The liability of a foreigner worker (aka alien) concerns legalility of admittance, and work authorization by the Dept. of State (visa given by an embassy). The Immigration Service (INS) is responsible for a prior Notice of Action (Form I-797), and later an I-94 card at a designated port entry. This should done in accordance with any part of the INA as a whole. It means that the INS may neither issue an I-797 Form nor an I-94 Card if there is no prior Alien Labor Certification filed with the Dept. of Labor (DOL).

This has been a loophole in the law, which the Congress had likely ignored before IMMACT 1990. Moreover the DOL has failed to regulate and enforce the law because the INS should have been be responsible. There are precedent cases barring the DOL to act. Yet, Title 8, older section 1182(a)(14) as of 1952 and before Nov 29, 1990, had excluded the following classes of aliens from admission into the United States.

It means that to protect US workers from unfair competition by alien (slaves), no alien may be granted working visa (whether temporary or Green Card) without prior certification of the DOL. Yet, INS would not deal with labor issues which according to the INS are under the ultimate jurisdiction of the DOL. ;-)

What would you say about possible remedies of an abused alien worker, if an employer had conspired to organize a working visa by fraud, and suceeded to put such an alien in a "never never land"?

May the provisions of RICO, 18 USC 1964(c), be invoked?

Doron


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