Friday, August 12, 2005

Fourth Circuit finds no implied cause of action in immigration statute

In Venkatraman v. REI Sys. , No. 03-1679 (4th Cir. July 29, 2005) (PDF), the Fourth Circuit affirmed dismissal of an employment discrimination complaint for failure to state a claim.

Among the causes of action pleaded was "violation of U.S. immigration laws." The plaintiff alleged that he was a United States citizen and was discharged by REI, which had hired numerous H1-B non-immigrants by falsely representing to the INS that there was a shortage of qualified U.S. workers. He alleges that such actions are in violation of 8 U.S.C. § 1182(n) and that a private right of action for a violation of § 1182(n) must be implied because the statute does not authorize such a cause of action.

In a case of apparent first impression, the Fourth Circuit ruled that no implied private cause of action should be created under § 1182(n) because an administrative remedy already exists:
Subsection (n)(5) covers complaints regarding an employer’s misrepresentation or failure to state that it has offered the job in question to any U.S. worker who is equally or better qualified. It directs the Attorney General to establish a process for the receipt, review, and disposition of such complaints. § 1182(n)(5)(B). If the Attorney General finds that reasonable cause exists, he or she must initiate binding arbitration. The arbitrator’s decision as to any failure or misrepresentation may be appealed to the Attorney General, with review of that decision in a United States Court of Appeals. See § 1182(n)(5)(D). Administrative remedies, including monetary penalties, are again authorized. § 1182(n)(E). Thus, Venkatraman’s complaints are subject to administrative remedy.

The court also affirmed dismissal of the plaintiff's other claims of wrongful discharge.

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