By: Richard Hanus, Esq.
Published September 21, 2022
A typical work visa holder in the U.S. often wonders where the grass might be greener as far as work environment is concerned. That is usually because their aunt has a friend…. who has a cousin…. who knows someone…. who enjoys better pay and conditions working a similar job. On the other hand, a typical U.S. work visa employer will often wonder how they can best exploit the foreign worker and get maximum productivity from an individual who in many ways is tied to them for a period of years. The tension this creates varies from workplace to workplace, but in most situations, the parties find a way to stick it out and mutually benefit from the arrangement.
When it comes to foreign registered nurses entering the U.S. to work, limited U.S. immigration law options are such that the RN being petitioned by a U.S. employer will almost always arrive here as a lawful permanent resident, aka Green Card status. That means, per U.S. immigration law rules, the RN is free to live and work in the U.S. as he/she pleases, and without necessarily being tied to their petitioning U.S. employer, or even their profession. As long as they had a true and genuine intention to work full time as an RN for their petitioning employer upon arriving here, the RN immigrant satisfies the U.S. immigration law component of the legal equation. Importantly, U.S. immigration law does not spell out a specific period an R.N., or any type of petitioned worker, obtaining green card status by way of a job offer is required to work for their petitioning employer. As a result, the terms of an employment contract become all the more important.
A high stakes dispute is now playing out in a federal court in New York, and it represents everything that can go wrong when it comes to the immigration process for foreign labor, especially RN’s. In the past year, Benzor Shem Vidal, a Filipino RN arrived in the U.S. on a Green Card after being petitioned by his New York based employer Advance Care Staffing, LLC. Now Benzor is suing to invalidate some of the allegedly oppressive, illegal terms of his employment contract. See Vidal v. Advanced Care Staffing, case number 1:22-cv-05535, in the U.S. District Court for the Eastern District of New York.
According to the terms of his contract, Benzor was obligated to work for Advance Care for a 3 year period and in the event he chose to end his service prematurely, a series of punitive contract provisions would be triggered. Penalties in Benzor’s contract included having to reimburse his petitioning employer for their legal fees and expenses to facilitate the immigration process as well as the employer’s litigation costs and lost profits arising out of his early departure.
Damages provisions are universal when it comes to employment contracts and parties to such contracts are able to review these provisions before entering into such an agreement. Further, parties have the freedom to enter, or not enter, into the contract, or try to renegotiate the terms.
But what happens if the foreign worker enters into the contract and arrives in the U.S. only to face forbidding and dangerous conditions in their assigned workplace? Would that worker still be legally obligated to fulfill their end of the contract? Perhaps not, if the employer’s failure to provide reasonable work conditions would itself constitute a breach of the contract and relieve the worker of their obligations.
This is precisely what Benzor claims happened to him when he arrived in the U.S., alleging Advanced Care assigned him to work at a nursing home with “unmanageable” caseloads. He further claimed it was physically impossible to properly attend to all of the patients he was assigned, especially when it came to properly administering their medication and protecting them from dangerous falls.
Included in the relief being sought in his federal lawsuit, Benzor is looking to invalidate the “loser pays” provisions in the contract since it exposed him to being liable for tens of thousands of dollars of Advanced Care’s legal expenses and as a result, served to coerce him into remaining in a dangerous workplace situation in violation of federal and state labor laws.
In all likelihood, the parties will end up settling the dispute with Benzor paying a sum of money he and his employer will both be be unhappy with – the usual sentiment of litigating parties who settle a lawsuit. These kinds of disputes are not uncommon and a foreign nurse’s best take away from a situation like this is to do their due diligence before entering into a contract to make sure the company or facility petitioning them is reputable and honest.
PUBLISHED September 21, 2022– “IMMIGRATION LAW FORUM” Copyright © 2022, By Law Offices of Richard Hanus, Chicago, Illinois