United States District Court, E.D. New York
DR. ARMANDE GIL, Plaintiff,
BERNARD & YAM, L.L.P., and PETER HELDER BERNARD, Defendants.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
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.)
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.
following facts are drawn from Plaintiffs Complaint and are
assumed to be true for the present motion.
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.)
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.)
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,
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, and did not return to Paris to obtain
the H-IB visa extension. (Id. ¶¶ 21,
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.)
also agreed to sponsor Plaintiff for a "green card,
" and Plaintiff retained Bernard to assist
with that process in June 2015. (Id. ¶¶
43.) In connection with that application, Bernard filed a
"PERM application." (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. (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. ¶¶
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.)
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,
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). (See generally Mot.)
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.