Employer to Pay $2.9 Million for Failing to Obtain Worker's Green Card

A California appeals court upheld a jury award of almost $2.9 million to an employee and his wife in their lawsuit against the husband's former employer. The jury had found the employer negligent in failing in complete the employee's green card application in time. As a result, he and his wife were forced to return to their home county.

The employee, a British citizen, moved to Los Angeles in 2005 to attend business school at the University of Southern California. In 2007, after obtaining an MBA degree, he accepted a job and started working for the employer. The employer arranged and sponsored a series of temporary work visas for the employee, allowing him to remain in Los Angeles.

In 2015, the employee married his wife, also a British citizen, and she subsequently moved to Los Angeles. They had two children.

Knowing that his work visa was set to expire in a few years, the employee asked his employer, toward the end of 2013, to sponsor him for a green card. The company agreed to sponsor him.

Employment-Based Green Card Process

The employment-based green card process has three primary stages:

• Applying for a permanent labor certification (PERM) from the Department of Labor (DOL).
• Filing an immigrant petition (I-140) and supporting documents with the U.S. Custom and Immigration Service (USCIS).
• Filing an adjustment of status form (I-485) with the USCIS to become a legal permanent resident—that is, obtain a green card.

Several steps are required before the initial PERM application can be filed. The employer must draft a description of the job that it seeks to fill with the foreign worker; set the minimum requirements for the position; apply for a prevailing wage determination from the DOL; and conduct advertising and recruitment to establish that there is no interested U.S. citizen or permanent resident who meets the minimum requirements for the position. If a minimally qualified U.S. worker applies for the position, the PERM application cannot be filed.

Once filed, 86 to 87 percent of PERM applications are approved by the DOL without an audit.

Two employees, a mobility manager and a human resources representative, were the primary company employees involved in the sponsorship of the employee's green card.

The mobility manager spent most of her time working on temporary work authorizations and green cards for foreign employees. She worked directly with outside immigration counsel, coordinating matters between the lawyers, the company and the employee. The HR rep assisted the mobility manager.

Both company employees knew that the green card application was time sensitive. The goal was to complete the process in time to allow the employee to remain in the United States beyond the expiration of his temporary work visa.

However, they failed to meet the deadlines, and the employee did not receive a green card before his visa expired in May 2016. He could therefore not keep his job with the company and lost his income and his health care. He returned to England with his wife and children. His extensive efforts to obtain work in England were unsuccessful, as his business contacts were in Los Angeles.

The employee claimed that he suffered from depression because he could not support his family. His wife also sought counseling for depression and anxiety.

The employee and his wife sued the company, alleging that if it had not been negligent, the employee would have obtained a green card and would not have been forced to move back to England.

The case was tried to a jury in March 2018. The jury found that the employer had been negligent and awarded the couple $2,887,758.

The company appealed, and the appellate court affirmed the verdict, finding that it was supported by substantial evidence. That evidence showed that the delay prevented the employee from obtaining a green card, and the employee and his wife were adversely affected by their resulting inability to remain in the United States.  

Reynaud v. Technicolor Creative Services USA Inc., Calif. Ct. App., No. B290836 (March 24, 2020).

Professional Pointer: California law defines "negligence" as the failure to use reasonable care to prevent harm to oneself or to others. A person is negligent if he or she does something that a reasonably careful person would NOT do in the same situation or fails to do something that a reasonably careful person WOULD do in the same situation.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.