Salcedo v. RN Staff Inc.

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MA. PATROCINIO F. SALCEDO, Plaintiff, v. RN STAFF INC., MANUEL GARCIA, RAMON VILLEGAS, ANTONINA HASKINS, ARVIN AMATORIO, Defendants.

No. 1:21-cv-01161-SEB-DLP

United States District Court, S.D. Indiana, Indianapolis Division

March 8, 2023

ORDER DENYING DEFENDANT'S SECOND MOTION TO DISMISS

SARAH EVANS BARKER, JUDGE

Plaintiff Patrocinio Salcedo filed a Second Amended Complaint against her former employer, RN Staff Inc., three of its corporate officers, and the company's immigration attorney, Arvin Amatorio. Thereafter, Mr. Amatorio, who is proceeding pro se, moved to dismiss the Second Amended Complaint insofar as it implicates him. We now consider Mr Amatorio's motion and his three arguments for dismissal-lack of personal jurisdiction, failure to state a claim, and lack of subject matter jurisdiction.

I. FACTUAL BACKGROUND

The following facts are taken from Ms. Salcedo's Second Amended Complaint and are accepted as true for purposes of this motion to dismiss.

A. THE PARTIES

Ms. Salcedo is a citizen of the Philippines, and at all relevant times, she has lived in Connecticut. Ms. Salcedo is a licensed physical therapist in Connecticut and New York. RN Staff is an Indiana company that provides physical therapy services to healthcare facilities across the country. Defendant Manuel Garcia is the President of RN Staff, Defendant Ramon Villegas is the Vice President for Human Resources for the company, and Defendant Antonina Haskins is the company's Immigration Liaison Officer. These three Defendants work at RN Staff's office in Indianapolis, Indiana. Mr. Amatorio is an attorney licensed to practice in New York and conducts business out of his office in New York City. Mr. Amatorio serves as outside counsel on immigration matters for RN Staff. In this role, Mr. Amatorio regularly provides immigration advice to RN Staff and its corporate officers, and routinely prepares immigration sponsorship documents for and on behalf of RN Staff and its beneficiary-employees. Mr. Amatorio sends these prepared documents to RN Staff and Mr. Garcia in Indiana via either email or the postal service, and he regularly communicates with the other Defendants in Indiana through emails, text messages, phone calls, and mail services. In payment for this work, Ms. Salcedo contends, Mr. Amatorio sends regular invoices to RN Staff in Indiana, and consequently, derives substantial revenue from his work in Indiana.

B. THE EMPLOYMENT-BASED VISA APPLICATION PROCESS

The crux of Ms. Salcedo's claims is that Defendants abused the immigration system to obtain her continuing labor, in violation of the Trafficking Victims Protection Act ("TVPA"). Before we turn to Ms. Salcedo's procedural and substantive allegations against Defendants, it will be helpful to provide an overview of the relevant immigration procedures.

"Under the Immigration and Nationality Act ("INA"), a United States employer can petition the federal government to allow a foreign national to work in the United States as an H-1B worker." Panwar v. Access Therapies, Inc., 2015 WL 1396599, at *1 (S.D. Ind. Mar. 25, 2015). "An H-1B worker performs services in a specialty occupation that requires a bachelor's or higher degree and includes such professions as physical therapists." Id. Ms. Salcedo was working for her prior employer (not RN Staff) based on an H-1B visa. The INA sets out a "three-step process by which an alien who is already lawfully present in the United States through a nonimmigrant worker visa or status (commonly called H1-B) may become a permanent resident." Musunuru v. Lynch, 831 F.3d 880, 882 (7th Cir. 2016). "The first two steps are completed by the worker's employer so that the employer may hire the worker on a permanent basis, rather than the temporary basis permitted by the worker's H1-B status." Id.

The first step obligates the employer to "obtain a labor certificate from the Department of Labor that certifies that there are insufficient able, willing, qualified, and available workers, and that hiring the alien worker on a permanent basis will not adversely affect the wages or working conditions of similarly employed U.S. workers." Id. (citations omitted). Next, the employer must file, and the U.S. Citizenship and Immigration Services ("USCIS") must approve, "an immigrant visa petition that assigns the worker to one of the INA's immigrant visa preference categories for employment- based permanent residency." Id. at 882-83 (citations omitted). One of these categories is for "an alien who is member of a profession holding an advanced degree or an alien of exceptional ability, commonly called EB-2." Id. at 884. The petition is "called an I-140 after the name of the form used to file the petition: Form I-140, Immigrant Petition for Alien Worker." Id. at 883 (citation omitted). "The worker does not receive a visa upon approval of the employer's I-140 petition, because there is a quota where only a certain number of visas are made available per country of origin each calendar quarter." Id. (citations omitted). "Instead, an approved I-140 petition makes the worker eligible to receive a visa once one becomes available." Id. "The third and final step must be completed by the worker: [s]he must apply for, and be granted, an adjustment of status to permanent resident." Id. (citation omitted). "The application is also called an I-485 after the form used to file the application: Form I-485, Application to Register Permanent Residence or Adjust Status." Id. (citation omitted). Relevant here, the INA provides that if a worker is approved for an EB-2 visa, the worker's family members can file their own Form I-485 applications for lawful permanent resident status.

C. MS. SALCEDO'S IMMIGRATION PROCESS

On December 2, 2015, Mr. Villegas contacted Ms. Salcedo regarding a job opportunity as a physical therapist with RN Staff. Ms. Salcedo-who was then working under an H-1B visa for her former employer-was ultimately persuaded to join RN Staff because they promised to sponsor her for an EB-2 visa. The employment agreement was finalized on August 6, 2016, and included a provision requiring RN Staff to employ Ms. Salcedo and sponsor her EB-2 immigrant visa in exchange for her working as a physical therapist for a term of 4,160 hours at a $41 hourly rate. If Ms. Salcedo did not finish the contractual term, the employment agreement provided that Ms. Salcedo would owe RN Staff $20,000 in liquidated damages.

Following the parties' execution of the employment agreement, RN Staff and Mr. Amatorio reviewed Ms. Salcedo's immigration documents, which indicated that her H-1B status with her previous employer had been extended until December 12, 2018. Ms.

Salcedo was assured by Mr. Garcia and Mr. Villegas that they understood that RN Staff needed to file a Form I-140, a Form I-485, and a Form I-765 employment authorization application on her behalf before she could leave her then-employer, because Ms. Salcedo needed to maintain her nonimmigrant status-which she secured through her H1-B visa with her then-employer-at the time her Form I-485 application was filed. Mr. Garcia and Mr. Villegas also informed Ms. Salcedo that Mr. Amatorio would prepare these documents on her behalf, along with the immigration documents for her family members.

At some point thereafter, Mr. Amatorio prepared the referenced immigration documents and sent them to RN Staff's office in Indianapolis. On August 9, 2016, Ms. Haskins, the company's Immigration Liaison Officer, requested Ms. Salcedo's signature on the Form I-485 that Mr. Amatorio had prepared on her behalf. Ms. Haskins also instructed Ms. Salcedo to write and mail the following checks for transmission to Mr. Amatorio via RN Staff's office in Indianapolis: one check for $4,710 to cover the USCIS filing fee as well as several post-dated checks of $500 (each made payable to Mr. Amatorio). On September 23, 2016, Mr. Garcia signed the Form I-140 petition in his capacity as RN Staff's President, and on September 27, 2016, Mr. Amatorio signed the petition in his capacity as RN Staff's immigration attorney. Mr. Amatorio filed the petition with USCIS on September 29, 2016.

Sometime in November of 2016, Ms. Haskins informed Ms. Salcedo that RN Staff had filed the Form I-140 petition on her behalf and sponsored her as an EB-2 physical therapist. On December 2, 2016, Ms. Haskins informed Ms. Salcedo that RN Staff would file her Form I-485 and Form I-765, as well as those for her family members, once they received her checks. It is unclear whether Ms. Salcedo sent these checks, but she does allege that Mr. Amatorio filed Ms. Salcedo's Form I-485 adjustment application on January 9, 2017.

Ms. Salcedo began working for RN Staff on April 10, 2017, having received her work permit card in March of 2017. Over the course of her term of employment with RN Staff, the company assigned Ms. Salcedo to work at various facilities in Connecticut and New York. Throughout most of her employment with RN Staff, Ms. Salcedo alleges, the company was underpaying her. Mr. Amatorio instructed the other Defendants to encourage Ms. Salcedo to continue to work for RN Staff, despite Mr. Amatorio's knowledge that RN Staff was underpaying her.

On February 20, 2018, USCIS denied RN Staff's Form I-140 petition filed on behalf of Ms. Salcedo because Defendants had "submitted a prevailing wage determination (PWD) that was valid from June 30, 2016, through September 28 2016," which did not apply to the Form I-140 petition they filed on September 29, 2016. Docket No. 45, at 10. Because the PWD was invalid at the time the Form I-140 petition and accompanying labor certification were filed, the petition had to be denied. Because Mr. Amatorio and RN Staff filed the Form I-140 petition a day too late, it...