United States District Court, E.D. New York
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For Jacqueline L. Aguirre, Plaintiff, Counter Defendant: Felix Q. Vinluan, Lw Office of Felix Q. Vinkuan, New York, NY; Gabriel S. De La Merced, Law Offices of Gabriel DeLa Merced, New York, NY.
For Best Care Agency, Inc., Dorothy De Castro, Perlita Jordan, Defendants, Counter Claimants, Counter Defendants: Mario L. DeMarco, LEAD ATTORNEY, Law Office Of Mario DeMarco, Port Chester, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
Plaintiff Jacqueline Aguirre brings the above-captioned action against Defendants Best Care Agency, Inc. (" Best Care" ), Dorothy De Castro and Perlita Jordan, alleging (1) forced labor in violation of the Trafficking Victims Protection Reauthorization Act (" TVPRA" ), 18 U.S.C. § 1589 and § 1595; (2) trafficking with respect to involuntary servitude and forced labor in violation of TVPRA, 18 U.S.C. § 1590 and § 1595; (3) fraudulent inducement; and (4) negligent misrepresentation. Defendants counterclaimed for defamation. Plaintiff has moved for summary judgment on her four claims and Defendants' counterclaim. Defendants have moved for judgment on the pleadings as to De Castro and Jordan. For the reasons set forth below, Plaintiff's motion for summary judgment as to Plaintiff's claims is denied but granted as to Defendants' counterclaim. Defendants' motion for judgment on the pleadings is denied.
Plaintiff was born in the Philippines and lived there from 1964 to 2000. (Pl. Dep. 8:6-10, 22-25.) Plaintiff obtained a Bachelor of Science degree in Accounting in the Philippines. (Pl. 56.1 ¶ 2; Defs. 56.1 ¶ 2.) On March 26, 2000, Plaintiff entered the United States on a tourist visa. (Pl. 56.1 ¶ 1; Defs. 56.1 ¶ 1; Pl. Dep. 8:20-21, 16:18-24.) Plaintiff visited an employment agency and met De Castro and Jordan, who represented themselves as the owners of Best Care, a nursing employment agency. (Pl. 56.1 ¶ 3; Defs. 56.1 ¶ 3.) According to Plaintiff, De Castro and Jordan " agreed to offer Plaintiff employment and H-1B immigration sponsorship so that Plaintiff could help them in the day-to-day operations of their nursing employment agency, more specifically on the accounting side of Best Care's business operations."  (Pl. 56.1 ¶ 4; see Pl. Dep. 31:8-33:4, 39:5-11, 54:7-9, 73:14-18.) De Castro and Jordan admit that they " agreed to help" Plaintiff with her H-1B visa but claim that they hired Plaintiff to perform " secretarial [-] related matters." (Defs. 56.1 ¶ 4.)
a. H-1B Visa and Application Procedure
An H-1B visa is a temporary worker visa available to those who work in a specialty occupation. See 8 C.F.R. § 214.2(h)(1)(ii)(B). An H-1B visa grants a " nonimmigrant alien" admission to the United States for an initial period of no more than three years. 8 C.F.R. § 214.2(h)(9)(iii)(A)(1). The visa may be extended for a period of three years, but an individual may not remain in the United States on an H-1B visa for more than a total of six years, unless the alien has an approved or pending labor certification application for at least one year. 8 C.F.R. § 214.2(h)(15)(ii)(B)(1); American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, § 106(a), 114 Stat 1251, 1254-55 (2000); Adusumelli v. Steiner, 740 F.Supp.2d 582, 586 (S.D.N.Y.
2010), aff'd sub nom. Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012).
In order for an employee to obtain an H-1B visa, an employer must file a labor condition application with the United States Department of Labor (" Labor Department" ) and have it certified by the Labor Department. 20 C.F.R. § 655.700(b). After obtaining Labor Department certification of a labor condition application, the employer may submit a nonimmigrant visa petition with the labor condition certification application to the United States Department of Homeland Security (" DHS" ) and request an H-1B visa classification for the nonimmigrant worker. Id . If DHS approves the H-1B visa classification, the nonimmigrant worker may apply for an H-1B visa abroad, or, if the nonimmigrant is already in the United States, for a change of visa status. Id .
An individual may apply for a green card or " legal permanent resident" status, while working in the United States with an H-1B visa. See Adusumelli, 740 F.Supp.2d at 586-87 n.3 (explaining why individuals " may maintain their temporary status while simultaneously manifesting an intent to remain in the country permanently by applying to become" legal permanent residents). If an H-1B immigrant's maximum period of stay expires while she is waiting for a green card determination, permission to work is extended until the green card determination is made, even though the maximum term of the H-1B visa has expired. See 8 C.F.R. § 274a.12(c)(9); see also Adusumelli, 740 F.Supp.2d at 586-87.
b. Plaintiff's H-1B Employment Applications
In early February 2001, Neil A. Weinrib was retained to prepare the H-1B visa petition for Plaintiff. (Pl. 56.1 ¶ 5; Defs. 56.1 ¶ 5.) On February 5, 2001, De Castro signed a labor condition application and a nonimmigrant visa petition on behalf of Plaintiff. (Pl. 56.1 ¶ ¶ 6-7; Defs. 56.1 ¶ ¶ 6-7; see Pl. Ex. 19.) In the labor condition application, Best Care proposed to hire Plaintiff as an accounting consultant for at least $19 per hour. (Pl. 56.1 ¶ 6; Defs. 56.1 ¶ 6; Pl. Ex. 19.) In the nonimmigrant visa petition, Best Care proposed to hire Plaintiff as an accounting consultant for 18 hours each week at $18,700 each year. (Pl. 56.1 ¶ 7; Defs. 56.1 ¶ 7; Pl. Ex. 19.) According to Defendants, De Castro was told to sign the petition documents and did so after Plaintiff and Weinrib forwarded the documents to her. (Defs. 56.1 ¶ 6.) Defendants claim Best Care " signed documents calling Plaintiff an 'accounting consultant' for immigration purposes at Plaintiff's request."  (Defs. 56.1 ¶ 7.) In April 2001, Legacy INS approved Plaintiff's petition for an H-1B visa for the period of April 26, 2001 to March 15, 2004. (Pl. 56.1 ¶ 8; Def. 56.1 ¶ 8; Pl. Ex. 22.)
According to Plaintiff, after the H-1B visa approval, " De Castro and Jordan required Plaintiff to perform, not only accounting-related responsibilities, but
mostly other office-related operational responsibilities in connection with Best Care's staffing business." (Pl. 56.1 ¶ 9.) Defendants, " [k]nowing that Plaintiff would become unlawfully present in the United States if they withdrew the H1B petition," took advantage of their sponsorship of her " by paying her less than what they promised the U.S. Department of Labor and Legacy INS, and made her perform office functions not related to her [a]ccounting [c]onsultant position." (Pl. 56.1 ¶ 10.) Plaintiff felt that if she did not operate " the way [Defendants] want[ed her] to function, they [would] withdraw [her] sponsorship," and she would lose her status and be deported. (Pl. Dep. 66:3-6; 71:12-16.)
Plaintiff was initially paid $8 per hour and required to work 40 hours each week. (Pl. 56.1 ¶ 10.) She was not happy with her initial wages, but accepted the position with Best Care because they offered to sponsor her to obtain her H-1B visa. (Pl. Mem. 3; Pl. Dep. 44:24-45:18.) Plaintiff did not initially object to her rate of pay, but after the H-1B visa was approved, she objected to both De Castro and Jordan. (Pl. Dep. 45:19-46:21.) In addition to objecting to her inadequate pay, Plaintiff also objected to her supplemental office duties. (Pl. 56.1 ¶ 11.) De Castro and Jordan responded by offering to sponsor Plaintiff for her green card, and told her that she would receive the wage set forth in her immigration documents as soon as she received her green card. (Pl. Mem. 3; Pl. 56.1 ¶ 12; Pl. Decl. ¶ 14.) De Castro and Jordan " told her that if she did not like the work-pay arrangement, they could simply discontinue or withdraw their H1B sponsorship." (Pl. 56.1 ¶ 12.) Fearing the withdrawal by Defendants of the nonimmigrant visa petition, Plaintiff " felt compelled to agree to Defendants' proposals, and continued to work for them at a much lesser compensation rate than required by law." (Pl. 56.1 ¶ 13.)
According to Defendants, Plaintiff was hired to perform secretarial related tasks, which she performed throughout her employment, for a standard 40-hour workweek. (Defs. 56.1 ¶ ¶ 4, 9, 10.) At Plaintiff's request, they signed immigration documents referring to her as an " accounting consultant" for immigration purposes. (Defs. 56.1 ¶ 7.) In addition, Plaintiff " insisted" that they not pay her the wage set forth in the immigration documents. (Defs. 56.1 ¶ 11.) Moreover, Defendants never threatened to discontinue Plaintiff's immigration sponsorship. (Defs. 56.1 ¶ ¶ 11-12, 69.) " No one from Best Care Agency, Inc. had ever threatened to call the authorities on Plaintiff, and it was Plaintiff, herself, who wanted to say that she was being [paid] the proffered wage when she clearly never expected to be." (Defs. 56.1 ¶ 13.) In their signed declarations, De Castro and Jordan stated that they " never threatened to stop Best Care's petition on behalf of Plaintiff if she did not continue to work at her current salary" and " [t]here was no scheme to have Plaintiff continue working for Best Care at a lower salary [than] what she believed she was entitled to." (De Castrro Decl. ¶ 19; Jordan Decl. ¶ 21.)
In March 2004, De Castro signed the necessary documents prepared by Weinrib on Plaintiff's behalf to obtain an extension of the H-1B visa. (Pl. 56.1 ¶ 15; Defs. 56.1 ¶ 15.) The documents were submitted to United States Citizenship and Immigration Services (" USCIS" ), and the H-1B visa was extended for the period of April 2004 to March 15, 2007. (Pl. 56.1 ¶ ¶ 14-15, 17; Defs. 56.1 ¶ ¶ 14-15, 17.) Plaintiff claims that by signing these documents, Best Care, through De Castro, " certified to the USCIS that it was extending Plaintiff's nonimmigrant working status as it
needed her services as an [a]ccounting [c]onsultant," and proposed to pay Plaintiff a salary of $400 for a 20-hour workweek, or $20 for each hour worked. (Pl. 56.1 ¶ 16.) Defendants assert that Best Care " continued to allow Plaintiff to indicate that she was an [a]ccounting [c]onsultant, and was being paid accordingly, at Plaintiff's own request." (Defs. 56.1 ¶ 16.) De Castro admitted that she signed Plaintiff's immigration documents under penalty of perjury that the information was true and correct, and that the immigration documents listed higher rates of pay than Plaintiff's actual rates of pay and stated that Plaintiff was offered the position of " accounting consultant." (De Castro Dep. 145:10-154:23.) De Castro claims that Plaintiff specifically told her that the hourly wage listed on the visa application " was merely a number to put on the form and that she did not expect this amount to be paid to her." (De Castro Decl. ¶ 13.) " Best Care continued the sponsorship at Plaintiff's request because they felt bad for Plaintiff and her current immigration situation." (De Castro Decl. ¶ 14.)
On February 27, 2007, De Castro signed the necessary immigration documents to request a second extension of Plaintiff's H-1B visa, indicating that Best Care was paying Plaintiff the standard wage for an accounting consultant. (Pl. 56.1 ¶ 25; Defs. 56.1 ¶ 25.) In April 2007, USCIS approved the extension of Plaintiff's H-1B visa for the period of March 2007 to April 25, 2008. (Pl. 56 ¶ 26; Defs. 56.1 ¶ 26.)
c. Plaintiff's Green Card Application Process
On August 22, 2001, Defendants submitted an application to the Labor Department for an alien employment certification on behalf of Plaintiff. (Pl. 56.1 ¶ 14; Defs. 56.1 ¶ 14.) This was the first step in Plaintiff's green card application process. (Pl. 56.1 ¶ 14.) Plaintiff continued working for Best Care under her H-1B visa, which was valid until March 2004, and subsequently extended for the period of April 2004 to March 15, 2007, and then for one additional year from March 2007 to April 25, 2008. (Pl. 56.1 ¶ ¶ 14-17, 26; Defs. 56.1 ¶ ¶ 14-17, 26; Pl. Ex. 22.)
In June 2006, the Labor Department required Best Care to confirm whether it was still interested in processing Plaintiff's alien employment certification. (Pl. 56.1 ¶ 18; Defs. 56.1 ¶ 18.) According to Plaintiff, during that same month, De Castro and Jordan discussed with Plaintiff possibly withdrawing her alien certification application, as well as their sponsorships of her H-1B visa, if they did not " receive Plaintiff's assurance that she would continue working for them until two years after she receives her green card approval." (Pl. 56.1 ¶ 19.) During this discussion, Plaintiff inquired of De Castro and Jordan whether Best Care had the financial capability to pay her the wage represented in her immigration documents until the approval of her green card application, and " reminded them that they were not paying her the prevailing wage pursuant to the attestations and promises they submitted to the Labor Department and to Legacy INS [and/or] USCIS." (Pl. 56.1 ¶ 20.) Jordan assured Plaintiff that they were financially capable of sponsoring her. She told Plaintiff " our company earned around one million last year. And we have been earning more than a million for several years now. Of course, Best Care has the financial capability to sponsor your green card application." (Pl. 56.1 ¶ 21.) Plaintiff claims that De Castro told her:
There is no reason for you to worry. We have sponsored you for your [H-1B] status, and we will extend your status again next year. You will eventually be paid the offered wage when you get your green card approved. And that will definitely
happen because we have the financial capability to pay your wages. We just want you to assure us that you would continue working for us for two more years after you get your green card approved. Otherwise, if you cannot assure us, we will just withdraw your green card application. And perhaps even your [H-1B] status.
(Pl. 56.1 ¶ 22.) Plaintiff asserts that as a result of these representations, among others, she " was forced by the circumstances to assure De Castro and Jordan that she would work for them until two years after she receives her green card approval." (Pl. 56.1 ¶ 23.) De Castro then notified the Labor Department that Best Care was interested in continuing the alien certification application on Plaintiff's behalf. (Pl. 56.1 ¶ 24.)
According to Defendants, neither De Castro nor Jordan ever threatened to withdraw Plaintiff's application unless she promised to remain working at Best Care for two years after receiving her green card. (Defs. 56.1 ¶ 19.) Nor did they ever tell Plaintiff she would be paid the wage represented in the immigration documents upon receipt of her green card. (Defs. 56.1 ¶ 23.) De Castro and Jordan believed Best Care had the financial capacity to sponsor Plaintiff and did notify the Labor Department that they would continue to sponsor Plaintiff. (Defs. 56.1 ¶ ¶ 23-24; Pl. Ex. 24.)
On July 19, 2007, the Labor Department approved Best Care's alien employment certification on behalf of Plaintiff for the position of accounting consultant at $29.26 per hour. (Pl. 56.1 ¶ 27; Defs. 56.1 ¶ 27; Pl. Ex. 23.) In August 2007, De Castro advised Plaintiff that her alien employment certification was approved and that the next step in the green card process was to file an immigrant work petition with USCIS. (Pl. 56.1 ¶ 28; Defs. 56.1 ¶ 28.) Plaintiff claims that at this meeting, she complained about her salary and told Defendants that she needed to be paid at least the prevailing wage rate in accordance with the information in her immigration documents. (Pl. 56.1 ¶ 29; Pl. Dep. 90:14-16; Aguirre Decl. ¶ 31.) Plaintiff suggested to De Castro and Jordan that she was contemplating seeking other employers who would be willing to sponsor her for further extensions of her H-1B visa, and who would likely pay her the prevailing wage. (Pl. 56.1 ¶ 30; Pl. Decl. ¶ 32.) According to Plaintiff, De Castro told her that even if she could find another employer to sponsor her to further extend her H-1B visa, any application would be denied, as Plaintiff had already been on H-1B status for more than six years. (Pl. 56.1 ¶ 30; Aguirre Decl. ¶ 33.) Plaintiff asserts that De Castro and Jordan knew that if she was to leave their employment, she would lose her H-1B visa and have to leave the United States or risk staying illegally. (Pl. 56.1 ¶ 32; Aguirre Decl. ¶ 34.) De Castro and Jordan told her she would be paid the wage offered in her immigration documents once she received her green card, and that she would certainly get her green card application approved as Best Care had the financial capacity to pay the wage set forth in her immigration documents. (Pl. 56.1 ¶ 33; Aguirre Decl. ¶ 35.) Plaintiff claims that, relying on these representations and fearing deportation, she notified Weinrib to proceed in preparing the immigrant work petition and " acquiesced begrudgingly to receive actual wages that were far below the prevailing wage rates for her offered position." (Pl. 56.1 ¶ ¶ 34-35; see also Pl. Decl. ¶ 36-37.)
According to De Castro and Jordan, they never threatened to stop processing Plaintiff's green card petition. (Defs. 56.1 ¶ 19.) Best Care, " [b]eing somewhat ignorant
to the process, . . . believed that it had the financial capability to sponsor Plaintiff after she requested that they do so." (De Castro Decl. ¶ ¶ 19, 21; Jordan Decl. ¶ ¶ 21, 23.) " Best Care agreed to assist Plaintiff in her visa process to the best of their ability" and assisted her " out of kindness and sincerity in an effort for Plaintiff to obtain permanent lawful status in the United States." (De Castro Decl. ¶ 20; Jordan Decl. ¶ 22.) Defendants insist that Plaintiff accepted the secretarial position at Best Care for the purposes of gaining immigration benefits and that Plaintiff was the one to suggest that Defendants submit immigration documents that stated she was earning a different wage than she was. (Defs. 56.1 ¶ 35.)
On August 15, 2007, Defendants submitted the immigrant work petition on Plaintiff's behalf to USCIS. (Pl. 56.1 ¶ 36; Defs. 56.1 ¶ 36.) Plaintiff then filed her application for adjustment of status to permanent residence with USCIS. (Pl. 56.1 ¶ 37; Defs. 56.1 ¶ 37.) On or about February 25, 2009, USCIS requested additional information from Best Care regarding its ability to pay Plaintiff the wage represented in the immigration documents. (Pl. 56.1 ¶ 38; Defs. 56.1 ¶ 38.) Defendants submitted several financial documents to USCIS, including Defendant Best Care's federal tax returns and corporate bank statements. (Pl. 56.1 ¶ 39; Defs. 56.1 ¶ 39.)
On April 14, 2009, USCIS denied Plaintiff's immigrant work petition. (Pl. 56.1 ¶ 40; Defs. 56.1 ¶ 40.) USCIS determined that Best Care did not have the financial capacity to pay the wage represented in the immigration and labor documents. (Pl. 56.1 ¶ 40; Defs. 56.1 ¶ 40; see also Pl. Ex. 27.) USCIS noted that Best Care incurred net losses of $155,306 in 2006 and $527 in 2007. (Pl. 56.1 ¶ 41; see also Pl. Ex. 27.)
After USCIS denied Plaintiff's immigrant work petition, De Castro and Jordan notified Weinrib that they were not appealing the decision. (Pl. 56.1 ¶ 42; Defs. 56.1 ¶ 42.) Weinrib sent a draft letter to be signed by Best Care's accountant about the financial ability of Best Care. (Defs. 56.1 ¶ 42; Defs. Ex. 9.) Best Care and its accountant determined that the draft letter contained misinformation regarding Best Care's finances, and Best Care's accountant declined to sign the draft letter. (Defs. 56.1 ¶ 42.) Best Care decided it could no longer assist Plaintiff in pursuing her green card. ( Id .) Weinrib asked Defendants to reconsider, but Defendants chose not to appeal the USCIS decision. (Pl. 56.1 ¶ 43). Defendants claim " they did not want to submit factual misstatements about Best Care's financial ability to the U.S. government." (Defs. 56.1 ¶ 43.)
d. The Denial of Plaintiff's Adjustment of Status Application and DHS's Actions
As a result of the denial of her immigrant work petition, Plaintiff's adjustment of status application was denied. (Pl. 56.1 ¶ 44; Defs. 56.1 ¶ 44; Pl. Ex. 29.) On or about July 6, 2009, following the denial of her adjustment of status application, Plaintiff left her employment at Best Care. (Pl. 56.1 ¶ 45; Defs. 56.1 ¶ 45.) DHS thereafter served Plaintiff with a Notice to Appear in Immigration Court, effectively
commencing removal proceedings against Plaintiff. (Pl. 56.1 ¶ 46; Defs. 56.1 ¶ 46.)
According to Plaintiff, during the entire time that she worked for Defendants, she was forced to work for them and to receive compensation that was significantly less than the prevailing wage rates. (Pl. 56.1 ¶ 47.) Plaintiff claims that, to her detriment, De Castro and Jordan concealed material facts regarding the true financial health of Best Care. (Pl. 56.1 ¶ 48.) Even though she was Defendants' accounting consultant, she never got to see Best Care's true financial heath, as she was not privy to Best Care's bank records and did not participate in the preparation of its budget, financial statements or income tax returns. ( Id .) Plaintiff was tasked with preparing certain billing invoices and maintaining the employees' time sheets and schedules, but Defendants used an external accountant/auditor to take care of their financial statements and income tax documents. ( Id .) Plaintiff argues that Defendants' concealment of Best Care's financial health prevented Plaintiff from discovering that Best Care had been operating at net losses for years 2003, 2006 and 2007, and did not have sufficient net income to cover Plaintiff's wage for years 2002, 2004 and 2005, as they promised to do in the immigration documents. (Pl. 56.1 ¶ 49.) This misrepresentation caused Plaintiff to believe that Best Care had the financial capability to sponsor her as an immigrant worker through the immigration process, and in reliance on this misrepresentation, she continued to work for Best Care at less than the prevailing wage rate for her position. (Pl. 56.1 ¶ ¶ 49-50.) Had she known about the misrepresentations and omissions, she never would have allowed Best Care to sponsor her and would have ceased working for them. (Pl. 56.1 ¶ 51.)
According to Defendants, Plaintiff was never forced to work for Best Care, but did so in order to further her own desire to become a legal resident. (Defs. 56.1 ¶ 47.) De Castro and Jordan never concealed material facts as to Best Care's financial ability to sponsor Plaintiff, but were simply unaware that their financials would pose a problem for Plaintiff's application. (Defs. 56.1 ¶ 48.) They did not know what income was required in order to sponsor Plaintiff to obtain her green card. (Defs. 56.1 ¶ ¶ 52-57.) Plaintiff was hired to perform secretarial work at Best Care. ( Id .) She was never hired to be an accounting consultant because Best Care employed an accountant to handle its financial matters. ( Id .) Plaintiff knew she would be working as, and receiving the salary of, a secretary, while stating on her immigration documents that she was working as, and receiving the salary of, an accounting consultant. (Defs. 56.1 ¶ ¶ 49-51.) Plaintiff continued to work for Best Care because she wanted Best Care to sponsor her to obtain her green card. (Defs. 56.1 ¶ ¶ 49-50.)
e. Plaintiff's Interview by the Filipino Reporter
In September 2009, after Plaintiff left Best Care and received the Notice to Appear from DHS, Plaintiff approached the Filipino Reporter, a newspaper in Manhattan, and informed them of her immigration situation. (Pl. 56.1 ¶ 59; Defs. 56.1 ¶ 59.) After contacting De Castro for a response, the Filipino Reporter published an article about Plaintiff's immigration situation
(" September 2009 Filipino Reporter Article" ). (Pl. 56.1 ¶ 60; Defs. 56.1 ¶ 60; Pl. Ex. 5.) In the article, Plaintiff blamed Best Care for her predicament, and stated that De Castro told her that " they did not comply with the USCIS request for fear that the Internal Revenue Service would go after them." (Pl. Ex. 5.) Plaintiff also alleged that, under a labor condition agreement ...