Can I hold my employer responsible for negligence and carelessness?

[lostlamb]

am a foreign national that has worked in the United States. My US employer(who's subsidiary in another Country I am still working with) filed for my work permit extension- however, did not provide for additional evidence when asked by the USCIS. This resulted in my staying outside the US for more than one calendar year, away from my spouse. While I was in the US, my employer made me work(have paystubs, have filed tax returns) for over a year when an extension on my workpermit was initially pending, and then in limbo due to multiple back-and-forth correspondence. I am now outside the US. Several immigration attorneys say that depending upon the interpretation of facts, I could be subject to the 3 year or 10 year bar from entering the US. I am unable to join my spouse in the US and we are considering legal marital separation. Can I hold my employer responsible for negligence, and carelessness, and withholding of information( I was told regarding my possible unlawful status in the US around 10 months after I departed the US). I have several pieces of information which can be used as evidence to back up my case.

The reason I am saying the employer was careless and negligent is because when the USCIS requested for more information, they could have simply furnished the requested information(proof in the form of training certificates that I had undergone the pertinent training) instead of arguing that they(petitioner's counsel) had provided all information as per law, and no additional information was really required, and USCIS was overstepping its authority in asking for unnecessary additional information. Can you please let me know if this constitutes grounds for employment harrassment due as I have undergone anxiety, anguish and trauma due to the stress and separation from my spouse?

 

[NYClex]

I am sorry to hear this. This is a really interesting but tricky question. It depends on a lot of details, so that we cannot make an evaluation of your case here. You would have to consult with an attorney about this.

That said, I think this scenario raises some interesting questions. Let us open three categories in which you might have a claim:

1) Contract

One would have to evaluate what your employment contract says. If it could be argued that the contract expressively stated or at least implied that your employer would seek approval of the immigration petitions and it can be proven that the employer or his agent did not act diligently this could be a breach of contract. Not only the wording of any contract, but also the employer's conduct might be enough implication here.

Of course this assumes that there was no fault on your own side that the immigration petitions were denied. This goes for all the scenarios.

2) Legal Malpractice

From what I read your employer had an immigration attorney working for them to file the petitions in your regard. There might be some malpractice liability here if the immigration attorney made unreasonable mistakes. It is a little tricky since the attorney only worked for your employer and not for you, but there might be ways to assert liability, either on a third party beneficiary theory under contract law or under a malpractice theory.

3) Negligence

To assert a case based on negligence one has to show several elements:

-a duty
-a breach of that duty
-causation of the damage
-damage

The first hurdle would be to assert that the employer actually had a duty towards you not to be negligent. Duty can be based on contractual relationship or be asserted because the employer voluntarily undertook some action and you justifiably relied upon it. So this is a pretty important point, you would have to be able to argue that the employer had the duty to protect you from the harm that his actions or omissions have caused. If you cannot establish this, there is no case for negligence.

The next step would be to assert that the employer acted unreasonably and therefore breached that duty. This would be another hurdle. If you cannot show that the employer acted unreasonably, there is no case. The details of the case might show that.

The third step then is to establish that the damage occurred because of that unreasonable conduct. This might not be so easy either, you would basically need to show that but for the employer's mistake your petitions would have been approved.

Last but not least then is the question of damage. From what I read I conclude that this has caused you a lot of emotional distress. Now the problem is, that unless the conduct is intentional, it is very hard to claim a case for emotional distress alone, especially if it did not cause such severe symptoms that one had to seek medical help. Also future economic losses usually are not compensable in negligence cases. In other words: The fact that you are separated from your wife against your will and that causes emotional distress might not be enough to assert a claim. The fact that you lost future income because of being denied the authorization to work in the US might also not be enough to assert a claim (at least not under a negligence theory). This all heavily depends on the details of the case and even on where you would file suit, because different jurisdictions treat things differently.

So, I think it might be possible to make a case, depending on the details, but it might not be easy.