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Ladybug & Friends Preschool, LLC v. Napolitano

United States District Court, N.D. Illinois, Eastern Division

April 10, 2014

JANET NAPOLITANO, Secretary of the Department of Homeland Security, et al., Defendants

For Ladybug and Friends Preschool, LLC, Iulia Salajan, Plaintiffs: Robert A. Perkins, Robert A. Perkins & Associates, Chicago, IL.

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Milton I. Shadur, Senior United States District Judge.

This Court has just received (belatedly [1]) a copy of the Complaint filed by Ladybug and Friends Preschool, LLC (" Ladybug" ) and Iulia Salajan (" Salajan" ) against Department of Homeland Security Secretary Janet Napolitano and Christina Poulos, Director of the USCIS (United States Citizenship and Immigration Service, referred to here for convenience simply as the " Service" ) California Service Center. This Court has conducted the threshold review that it always applies to newly-assigned complaints, and this memorandum opinion and order (" Opinion" ) addresses two troubling aspects revealed by that review.

To begin with, the filing of this action in this judicial district is problematic -- Complaint ¶ 7 speaks of venue only in these amorphous terms:

Venue is proper pursuant to 28 U.S.C. 1391 because Plaintiffs and Defendants operate in this District.

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But in fact, even though Complaint ¶ 2 describes Ladybug as " an Illinois based organization," the petition whose rejection forms the gravamen of this lawsuit was prepared by attorney Robert Perkins (who offices at Culver City, California and who has also prepared and filed this lawsuit), and that petition was transmitted from attorney Perkins' Culver City office to defendant Poulos at her office in Laguna Niguel, California -- here are Complaint ¶ 5 and the first two sentences of Complaint ¶ 17, with a copy of the first page of Complaint Ex. 2 (referred to in the second of those paragraphs) being attached to this Opinion:

5. Defendant Christina Poulos is the Director, USCIS California Service Center. As such, she is in charge of adjudicating H-1 visa applications including those filed by Plaintiffs herein.
17. On April 5, 2013 Plaintiff Ladybug and Friends Preschool filed an H-1B petition (the " Petition" ) with the USCIS Service Center to obtain an H-1B visa for Plaintiff Iulia Salajan. (See Exhibit 2, a copy of the petition as well as a receipt from the messenger service Petitioner used to deliver the petition)

So it appears highly questionable for the Northern District of Illinois to have been selected as the place for this action to be brought. Moreover, if one thinks ahead to a resolution of the merits of the case, it would seem that the key witness or witnesses on the fundamental question whether the petition at issue was rejected in violation of the Service's own requirements (as plaintiffs allege) would be defendant Poulos and possibly other members of her staff at the California location.

That point leads into the other troublesome matter that has emerged from this Court's preliminary review of the Complaint -- a substantive rather than procedural issue. What the Complaint charges is that the Service's refusal to process Ladybug's petition for H-1B visa status for Salajan violated its own relevant instructions and regulations, so that plaintiffs were victims of a violation of due process of law. On that score attorney Perkins' April 2, 2013 letter to the Service's Laguna Niguel Service Center (part of the bulky Complaint Ex. 2) specifically listed this as one of the enclosures:

Form ETA 9035, Labor Condition Application, which has been duly filed with and approved by the Department of Labor.

It was the lack of signature on that form (referred to in administrative-speak as " LCA" ) what led to the Service's refusal to consider the petition at issue, even though the petition had survived the lottery that the Service had to conduct because the glut of petitions overwhelmed the number of available slots.

In that respect Complaint Ex. 2 also includes a copy of the LCA, which is also attached to this Opinion. On that score particular note should be taken of Paragraph A) on its first page and Paragraph N on its last page, the relevant portions of which are reproduced here:[2]

A) I understand and agree that, upon my receipt of ETA's certification of the LCA by electronic response to my submission, I must take the following actions at the specified times and circumstances:

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o print and sign a hardcopy of the electronically filed and certified LCA
o maintain a signed hardcopy of this LCA in my public access files;
o submit a signed hardcopy of the LCA to the United States Citizenship and Immigration Services (USCIS) in support of the I-129, on the date of submission of the I-129;
o provide a signed copy of the LCA to each H-1B nonimmigrant who is employed pursuant to the LCA.
* * *

N. Signature Notification and Complaints

The signatures and dates signed on this form will not be filled out when electronically submitting to the Department of Labor for processing, but MUST be complete when submitting non-electronically. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from the Department of Labor before it can be submitted to USCIS for further processing.

It would thus seem that to go forward with this lawsuit here, plaintiffs must not only address the procedural venue question raised at the outset but must also provide a better explanation of how a rejection of their petition for the lack of signature on the LCA violated their rights. Attorney Perkins is ordered to provide a response in both those areas on or before April 25, 2014.

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