Employment Law Daily H-1B worker’s claim that company depressed wages by threatening visas survives dismissal
Friday, March 11, 2016

H-1B worker’s claim that company depressed wages by threatening visas survives dismissal

By Dave Strausfeld, J.D. A worker on an H-1B visa who alleged that his electronics dealer employer forced him to accept unlawful wages by threatening to withdraw his USCIS application if he refused to comply could proceed with his claim under the Trafficking Victims Protection Reauthorization Act (TVPRA), held a federal district court in New York, denying a motion to dismiss his putative class action suit (Saiyed v. Archon, Inc., March 7, 2016, Seybert, J.). After moving from India in 2009 to begin a position with the electronics distributor, the foreign worker alleged, the company used his USCIS application as leverage to force him to work for unlawful wages and without vacation days and sick leave, among other things. The company moved to dismiss, represented by its owner proceeding pro se. Trafficking Victims Protection Reauthorization Act. As relevant here, the TVPRA makes it unlawful for any person to knowingly obtain the labor or services of a person through “the abuse or threatened abuse of law or legal process.” The foreign worker’s TVPRA claim survived a motion to dismiss, the court concluded without extensive analysis. As to whether a sales and purchasing manager could be held individually liable under the statute, it did not matter that he was not an owner or officer of the company. Under the TVPRA’s express language, an individual does not have to be an owner or officer to be individually liable for a TVPRA violation. Relocation to India. The company argued that the foreign worker should be barred from pursuing his lawsuit because he left the U.S. after his H-1B visa expired in July 2015. But his absence from the U.S. was not grounds for dismissing his suit, the court explained, where he had filed it before he left the country and had hired a New York law firm to handle the dispute. The foreign worker’s TVPRA claims survived the motion, as did his other claims including unpaid wage claims under the FLSA and state law.

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