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Gil v. Bernard & Yam, LLP

United States District Court, E.D. New York

January 16, 2018

DR. ARMANDE GIL, Plaintiff,
v.
BERNARD & YAM, L.L.P., and PETER HELDER BERNARD, Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.

         Plaintiff Dr. Armande Gil brings this action against Defendants Bernard & Yam, L.L.P. (the "Law Firm") and Peter Helder Bernard ("Bernard, " and together with the Law Firm, "Defendants") alleging legal malpractice based on numerous claimed errors in the preparation and processing of Plaintiff s application for a Specialty Occupation Nonimmigrant ("H-1B") visa and a "green card." (Compl. (Dkt. 1).) Plaintiff claims that, because of these alleged errors, she has lost her employment, legal immigration status, and ability to obtain future forms of lawful entry into the United States. (Id. ¶¶ 84, 87, 92.)

         Before the court is Defendants' motion to dismiss the Complaint for lack of subject matter jurisdiction, improper venue, and failure to state a claim (the "Motion"). (Mot. to Dismiss. ("Mot.") (Dkt. 17).) For the reasons that follow, the Motion is DENIED.

         I. BACKGROUND

         A. Factual Background

         The following facts are drawn from Plaintiffs Complaint and are assumed to be true for the present motion.

         Plaintiff is a French citizen and, at all times relevant to the allegations, was a resident of the District of Columbia. (Compl. ¶ 1.) Plaintiff is a clinical psychologist who, until her removal, worked for the IMA Group ("IMA") in Washington, D.C.. The Law Firm is a New York limited liability partnership, operating in Queens, New York. (Id. ¶ 2.) Bernard is an attorney practicing immigration law in both Miami, Florida, and Queens, New York. (Id. ¶ 3.) Bernard is a founding partner of the Law Firm. (Id.)

         As background to her Complaint, Plaintiff describes certain aspects of H-1B visas. An H-1B visa permits the holder to work for a "sponsor" employer and remain in the United States lawfully for a period specified by the H-IB approval notice. (Id. ¶ 8.) When the visa holder ceases working for the sponsoring employer, their H-1B "status" officially ends, and they begin accruing days of "Unlawful Presence" ("ULP") at the end of the period designated in the approval notice. (Id. ¶ 17.) If, however, the visa holder files a petition to change the employer on their H-1B visa, they do not accrue any ULP during the processing period. (Id.) When United States Customs and Immigration Services ("USCIS") approves a petition to extend or alter the employer on an H-IB visa, it can either grant the extension immediately while the individual is in the United States or, alternatively, approve the individual for "Consular Processing, " requiring the individual to return to their home country for approval of the visa. (Id. ¶¶ 18-19.) Approval for "Consular Processing" conveys no immigration status to the applicant, and the individual begins accruing ULP for time spent in the United States between approval and the individual's return to their home country. (Id. ¶ 19.) Accrual of ULP has consequences for an individual's ability to obtain future visas: If the individual accrues 180 to 364 days of ULP, they are barred from reentering the United States, even with a visa, for 3 years; and if the individual accrues 365 or more days of ULP, they are barred from reentering the United States for 10 years. (Id. ¶ 19.)

         On or about the first week of October 2013, Plaintiff retained Defendants to represent her before USCIS in filing an extension of her H-1B visa and changing her sponsoring employer to the Hospital for Sick Children in Washington D.C. ("HSC"). (Id. ¶¶ 6, 8.) At that time, Plaintiff held an H-1B visa that was valid until December 1, 2014. (Id. ¶ 9.) Bernard submitted the petition on Plaintiffs behalf but, within two months, USCIS rejected the submission for failure to include all requisite filing fees. (Id. ¶ 13.) Defendants sent a corrected submission, and USCIS approved the petition for consular processing, valid for the period from February 9, 2015, to December 6, 2016. (Id. ¶¶ 15, 20.)

         When Defendants' employee, Pascal Despradel, informed Plaintiff of the approval, he did not inform Plaintiff that (1) she needed to return to Paris to obtain a new visa; (2) the approval did not confer on her any legal immigration status; and (3) she would begin accruing ULP as of the date of approval, February 13, 2015. (Id. ¶¶ 21-25.) In fact, Despradel incorrectly informed Plaintiff that the approval had extended her H-1B "status" and that she could remain in the country and work for HSC until December 6, 2016. (Id.¶26.) (Id.¶22.) Following that advice, Plaintiff states that she thus began accruing ULP on February 13, 2015, without her knowledge, [1]and did not return to Paris to obtain the H-IB visa extension. (Id. ¶¶ 21, 30-34.)

         Plaintiffs employment with HSC ceased in March 2015 and, in May 2015, she began working for IMA. (Id. ¶¶ 30-31.) While negotiating her employment with IMA in or about the beginning of May 2015, IMA informed Plaintiff that she should file a petition with U.S. CIS to change the employer on her H-1B visa. (Id. ¶ 35.) When Plaintiff relayed this recommendation to Bernard, he "emphatically" and erroneously advised both Plaintiff and IMA that no petition was necessary due to the "portability law." (Id. ¶ 35.)

         IMA also agreed to sponsor Plaintiff for a "green card, "[2] and Plaintiff retained Bernard to assist with that process in June 2015. (Id. ¶¶ 43.) In connection with that application, Bernard filed a "PERM application."[3] (Id. ¶ 43.) Plaintiff alleges that Defendants made several mistakes in filing the PERM application, including using an outdated form and failing to follow certain procedural steps required by the Department of Labor.[4] (Id. ¶¶ 44-47.) Because of the errors in the filing, the Department of Labor notified Defendants of its intention to deny Plaintiffs PERM application and requested further documentation. (Id. ¶ 48.) On Bernard's advice, Plaintiff withdrew the first application and submitted a second PERM application. (Id. ¶¶ 54.) Defendants received a request for further information in connection with this second application and, after they both failed to respond or to notify Plaintiff of the request, the application was terminated. (Id. ¶¶ 64-74.)

         On November 25, 2016, Plaintiff terminated Bernard as her counsel and retained new counsel. (Id. ¶¶ 27, 90.) Plaintiffs newly retained attorney informed her that she had been out of status and unlawfully present in the United States since February 13, 2015, accruing more than 365 days of ULP during that time. (Id. ¶¶ 85-86.) Plaintiff claims that, by remaining in the United States for more than 365 days, she had become ineligible to obtain a green card. (Id. ¶ 86.) In December 2016, Plaintiffs new attorney filed a petition with USCIS to change her sponsoring employer to IMA and to extend her H-1B status beyond December 6, 2016. (Id. ¶ 84.) While USCIS approved the change of employer petition, it denied her request to extend Plaintiffs H-1B visa on the grounds that she had accrued more than 365 days of ULP. (Id. ¶ 84.) Shortly thereafter, IMA terminated Plaintiffs employment on the basis that she was unlawfully present in the United States. (Id. ¶ 92.)

         B. Procedural History

         Plaintiff commenced the present diversity action on February 17, 2017. (See generally id.) Plaintiff brings a single claim for legal malpractice, and seeks damages in the amount of $1.5 million. (Id. at p.21.) In lieu of filing an answer, Defendants moved to dismiss the claim on May 25, 2017. (Mot)

         II. DISCUSSION

         Defendants now move to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), and failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).[5] (See generally Mot.)

         A court facing challenges as to both its jurisdiction over a party and the sufficiency of any claims raised must first address the jurisdictional question. See Arrowsmith v. United Press Int'l 320 F.2d 219, 221 (2d Cir. 1963). Accordingly, the court turns first to Defendants' argument that subject matter jurisdiction is lacking in this court, and then addresses Defendants' arguments that Plaintiff has failed to state a claim and that this district is not the proper venue for this action.

         A. Subject ...


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